The Supreme Court is now hearing arguments in the landmark Ashcroft v. Raich case, which pits the issue of state-approved medical marijuana against the federal Controlled Substances Act. Understanding the issues involved in this case requires peeling away onion-like layers of Constitutional law and Supreme Court precedent. Like most issues in The War On (Some Americans With Certain) Drugs, the more you dig into it, the farther you retreat into Bizarro-Land.
This case has conservatives clamoring for centralized federal power and liberals screaming for States Rights. Red states like Louisiana, Alabama, and Mississippi, as rabidly anti-pot as they come, have filed briefs supporting the right of blue states like California, Oregon, and Washington to regulate the medical use of marijuana. You always knew that marijuana could distort reality, but this is ridiculous.
Here are the basics of the case and the history leading up to it, with the disclaimer that I’m no lawyer, historian, or scholar. The Constitution (written on paper made from marijuana, by the way) is clear about the role of the federal government. The Founders believed in the sovereign nature of the individual states and laid out very limited powers to the federal government. To be sure there was no confusion, they later drafted the Tenth Amendment, which clarifies that the states have the right to govern their own affairs:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Therefore, unless the Constitution gives the feds a specific power or forbids the states a certain power, then those powers are left up to the states. This is what is commonly called States Rights. A careful reading of the Constitution finds no mention of the feds’ right to regulate drugs. In fact, when the government wanted to prohibit alcohol, it was necessary to pass the Eighteenth Amendment to circumvent the restrictions of the Tenth. Early anti-drug measures were actually tax regulations – for example, the Marijuana Tax Act of 1937 didn’t make marijuana illegal, it required anyone who grew or possessed marijuana to pay taxes on it by purchasing a tax stamp. Then the government just didn’t bother to print or sell any stamps.
However, after a while, a series of decisions changed the landscape, tilting the balance of power toward a powerful federal government instead of independent sovereign states. There’s a part in the Constitution referred to as the Interstate Commerce Clause. This is found in Article I, Section 8, Clause 3, among the powers that were specifically granted to the federal government:
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
Originally, the idea was that the states could regulate the buying and selling within their own borders, but once the buying and selling occurred between two different states, then the Federal government had jurisdiction. That would make sense; you don’t want to have Maryland fighting with Virginia over some business dispute. There needs to be consistent regulations regarding interstate commerce. Gradually this came to encompass regulations on commerce as it traveled through the states (for example, regulations on shipping) and even commercial activities that happen completely within a single state but might affect interstate commerce elsewhere.
One of these cases was Wickard v. Filburn in 1942. There was an act passed in 1938 that regulated the production of wheat, limiting the number of acres a farmer could plant. The idea was that the feds could control the volume of wheat production because that would affect the price of wheat being sold between the states. This Wickard fellow exceeded his allotted acreage and was fined. Wickard fought that fine, arguing that the extra wheat he grew was only for his personal consumption – bread for his family and feed for his livestock – and there was no commerce involved or state lines crossed. The court ruled for the feds, citing the fact that Wickard’s personal production would have an effect on the interstate market for wheat – namely, he wouldn’t need to buy any wheat to feed his chickens and cows. If everyone followed Wickard’s example, the demand in the wheat market would be depressed, thereby affecting interstate commerce. This case was a serious blow to the idea of States Rights. The government extended the logic of Wickard to encompass just about any activity that was economic in nature.
Twenty-five years later, another Supreme Court case, Leary v. U.S., brought by Dr. Timothy Leary (yes, the “tune in, turn on, drop out” guy) dealt a harsh blow to the federal government’s war on marijuana. Leary argued that the Marijuana Tax Act of 1937 was unconstitutional, because before you could purchase a marijuana tax stamp, you had to have the marijuana, but if you had the marijuana without the stamp, you were breaking the law. Therefore, if you wanted to purchase a tax stamp, you had to incriminate yourself, which contradicts our civil right against self-incrimination under the Fifth Amendment, which states, in part:
No person shall… be compelled in any criminal case to be a witness against himself…
The Supreme Court agreed, and with that decision invalidated the federal laws against marijuana. However, in just three short years, the federal government exercised its Interstate Commerce Clause powers from the Wickard case to create the Controlled Substances Act of 1970 (the CSA). This act set forth five “schedules” of drugs that regulated their legality based on medical use and potential harm.
The problem with the CSA as it effects this Raich case is that marijuana is regulated as a Schedule I drug – a drug with extreme potential for harm and no accepted medical value – and Schedule I drugs are completely illegal to possess (the government failed to include two drugs in Schedule I with extreme potential for harm and no accepted medical value – alcohol and nicotine – but I digress). No one asked any doctors, patients, or scientists about that assumption, but that wasn’t the point. The idea was to keep marijuana illegal.
As we entered the 1990’s, two changes in thought were making their way through our legal systems. At the federal level, the more conservative justices were bristling at what they considered overreaching federal powers over the states brought about by Wickard. One case in particular reined in these newfound powers: U.S. v. Lopez (later clarified in U.S. v. Morrison). The Congress had passed laws that restricted the possession of firearms near public schools, but in the Lopez case, the court ruled that the feds could not use the Interstate Commerce Clause to justify regulation of things not directly related to the channels of commerce (shipping), instrumentalities of commerce (production), or anything that would affect interstate markets (buying and selling). While it’s a laudable goal to keep guns away from schools, possessing a gun near a school has nothing to do with the buying, selling, shipping, or production of guns. The Supreme Court effectively put the brakes on the expansion of federal power over the states.
The other change was happening at the state level. California was the first of what are now eleven states to recognize something known since the dawn of mankind: marijuana has effective medical uses. State initiatives and laws sprung up to regulate the prescription, possession, and use of marijuana, but they stood in direct opposition to the federal laws declaring marijuana completely illegal. This has led to the federal government arresting patients and destroying their medicine, even while these people are in complete compliance with state law.
The federal government is correct in asserting this power thanks to another part of the Constitution, Article VI, Clause 2, called the Supremacy Clause, which states, in part:
This Constitution, and the Laws of the United States… shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
In other words, because of the Supremacy Clause, federal laws trump state laws. It does not matter if California thinks medical marijuana is acceptable because the federal government says it is not. The federal government is justified in saying that marijuana is illegal because of the Interstate Commerce Clause, as decided in cases like Wickard.
Now the Raich case comes along, threatening to tumble the federal government’s legal house of cards. In this case, we have a California medical marijuana patient named Angel Raich. She was using marijuana for a number of state-approved illnesses, under direction from her doctor, in full compliance with California law. She also can make a credible case that without marijuana, she will die. However, the federal government has raided her home and confiscated her marijuana, because it’s illegal.
Raich and three others joined to sue the government on the validity of the Controlled Substances Act as it applies to their case. The gist of their argument is that the Interstate Commerce Clause does not apply. The marijuana was grown in California and it was used in California. It was never bought or sold. It is not like the Wickard case because Raich’s medical use of marijuana is not like Wickard’s economic use of wheat. Furthermore, medical use of marijuana has a negligible effect on the illegal interstate market; it drives down demand from the few medical users but does nothing to the demand from the recreational users, the vast majority of the market. Therefore, the federal government is acting unconstitutionally in prosecuting the medical use of marijuana where it is regulated by the states.
The legal status of this case currently sides with Raich. The US 9th Circuit Court of Appeals overturned lower court decisions that sided with the federal government, agreeing that homegrown medical marijuana use is not covered by the Interstate Commerce Clause. That means at this moment, in the six medical marijuana states that are covered by the Ninth Circuit, medical marijuana is completely legal. The feds can’t do a thing about it.
Of course, there’s no way the drug warriors can let this stand, and that’s what makes Raich so important. If the Supreme Court finds for Raich, the feds will be powerless to interfere with the states that have legalized medical marijuana and other states may proceed with their own medical marijuana laws.
It’s also why conservatives and anti-pot states have sided with Raich, because it would mark a resurgence in the right of states to manage their own affairs. If the court finds for Ashcroft, there is virtually no activity over which the federal government couldn’t claim jurisdiction. It would mean the court is repudiating its own judgments in Lopez and Morrison where they decided that the Interstate Commerce Clause was limited to activities that were directly economic in nature.
The issue seems clear. The facts obviously seem to favor a decision for Raich, affirming the right of the states to self-govern. That’s why I fully expect the Supreme Court to rule in favor of Ashcroft.
Yes, I predict that the court will conjure up some extra-judicial mumbo jumbo to justify the government’s continued war on medical marijuana states. Too many powerful interests depend on keeping marijuana illegal. You can be sure that the huge pharmaceutical companies don’t want to see state after state legalizing the use of a drug that grows for free everywhere and cannot be patented, advertised, and sold for a 10,000% markup. If that’s too conspiratorial for you, look at the prescription drug package offered by the Bush Administration that lines Big Pharma’s pocket by preventing Medicare from negotiating for lower drug prices or importing cheaper drugs from Canada. Moreover, if you think the court is above tailoring decisions against precedent and Constitutional consideration solely for the political ramifications of a single case or issue, you need look no further than the Bush v. Gore decision that trampled the state of Florida’s right to handle what was a case solely in their jurisdiction.
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