USA — Federal authorities may prosecute sick people who smoke pot on doctors’ orders, the Supreme Court ruled [6-3] Monday, concluding that state medical marijuana laws don’t protect users from a federal ban on the drug.

I hate to say I told you so, but… Anyway, the ruling is not as harmful as one might think. It merely preserves the status quo. State medical marijuana laws, like here in Oregon, are still in effect. The feds can, if they so choose, continue to raid state medical marijuana dispensaries like they have in California, arresting and handcuffing sick people in wheelchairs for using their medicine.

It’s interesting to note how the ruling broke down. Stevens delivered the opinion of the Court, in which Ginsburg, Breyer, Scalia, Kennedy, and Souter concurred. Stevens, Ginsburg, and Breyer, noted as the leading liberals on the court, the latter two appointed by President Clinton, sided with Reagan appointees Scalia and Kennedy and Bush 41 appointee Souter. In making their decision, they made pains to indicate that they were ruling on the constitutionality of the federal government’s power to regulate interstate commerce, not the medical efficacy of marijuana. So much for “states’ rights”

Meanwhile, some of the staunchest conservative justices, O’Connor, Chief Justice Rehnquist, and Thomas, filed a dissenting opinion, saying the federal government is overreaching in a case that is clearly in the realm of states’ rights. Hmm, might it have something to do with O’Connor and Rehnquist being cancer patients and Thomas having admitted to smoking the herb in his past? Perhaps not. Ginsberg and Stevens had cancer, too. As a Positive Christian Atheist, I would never wish for jackbooted federal thugs to burst down their doors as they treated their cancers with state-approved medicine. That would be wrong.

In oral arguments last November in the Raich case, Justice Stephen Breyer suggested that patients ask the Food and Drug Administration to reclassify marijuana for medical use as “the obvious way to get what they want,” adding, “Medicine by regulation is better than medicine by referendum.”

The ACLU, however, pointed out in a recent legal challenge to the DEA that the federal government has a policy of obstructing research that could lead to the development of marijuana as a legal prescription medicine.

“Doctors and patients would like to take Justice Breyer up on his proposal to develop marijuana as a medicine through the FDA approval process,” said Allen Hopper. “But the government’s idea of ‘medicine by regulation,’ is to obstruct research. Now more than ever, Congress and local and state governments need to take action to protect patients and their caregivers.”

You’re damn right. So if you haven’t already, please call your representative and ask them to support Barney Frank’s States’ Rights to Medical Marijuana bill (HR 2087), which would reschedule cannabis as a legally prescribable drug (like cocaine, methamphetamine, and angel dust). Eleven states have legalized medical marijuana and 75%-80% of public opinion supports medical marijuana, so your rep needn’t fear a YEA vote on HR 2087.

The legal wrangling necessary for the court to make this decision is truly remarkable. Let’s see if we can parse our way through this:

Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce is firmly established.

The federal government has the right to regulate commerce between the states (commonly called the “Commerce Clause” of the Constitution). That makes sense. You don’t want two separate state courts fighting over a dispute in the sale of widgets between a North Carolina producer and a South Carolina buyer.

But as time went on, a series of decisions held that the Constitution also allowed Congress to regulate intrastate commerce if it could be shown to affect the broader, interstate market. Suppose that North Carolina widget maker starts price fixing so that his in-state buyers get a much better price than the out-of-state buyers. South Carolinians would start flocking to North Carolina, putting South Carolina’s widget makers at an unfair disadvantage. Even though the widgets are bought and sold purely within the confines of North Carolina, that price fixing affects the interstate market.

That’s actually a good thing, too, because it brought us federal safety laws, shipping rules, inspection regimes, and a whole lot of regulations that protect American consumers. Anyway, continue…

If Congress decides that the “total incidence” of a practice poses a threat to a national market, it may regulate the entire class. Of particular relevance here is Wickard v. Filburn,

This is a case from 1938. Congress had made rules about the production of wheat, limiting how many acres could be planted, since the volume of wheat grown would affect the price of wheat being sold between the states. Wickard was a farmer who was fined because he exceeded his acreage. He argued that the excess acreage was for his own personal consumption, was kept completely in his own state (thus no “interstate”) and was never bought or sold (thus no “commerce”) and was for personal use (thus no effect on “interstate commerce”).

…where, in rejecting the appellee farmer’s contention that Congress’ admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for the appellee’s own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself “commercial,” i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

In other words, if everybody was allowed to grow their own personal stash of wheat, they wouldn’t need to go buy it on the market, which would depress demand, which would affect interstate prices, so Congress can regulate it.

The similarities between this case and Wickard are striking. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

Now, think about that. The reason Wickard applies is because growing your own marijuana, not for sale, merely for personal medical use, would depress your demand for the national market in marijuana… which is an illegal black market! Nice to see the Supreme Court is interested in protecting the profits of drug dealers.

In assessing the scope of Congress’ Commerce Clause authority, the Court need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, and concerns about diversion into illicit channels, the Court has no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the [Controlled Substances Act]

In other words, nobody has to prove that personal legal use of homegrown medical marijuana affects the price of marijuana, and nobody has to prove that personal legal medical marijuana makes it harder for the feds to control illegal recreational marijuana. Since it is merely theoretically possible that medical marijuana can affect interstate price or federal enforcement, the feds can continue to bust patients.

Incredible. I’m sure arresting sick people for using medicine in accordance with state law was exactly what the Founding Fathers intended when they wrote that Commerce Clause on hemp paper. They wrote laws mandating the growing of hemp and lived in a time when cannabis was regularly used as a medicine (hell, even prude old Queen Victoria ate hasish to relieve menstrual cramps!), and they were pretty clear about the limited role of federal government, reserving most rights to the states. I think Thomas Jefferson said it best:

“If people let government decide which foods they eat and medicines they take, their bodies will soon be in as sorry a state as are the souls of those who live under tyranny.”

So score one for the drug warriors… for now. Time and popular opinion are on our side. My hope is that the backlash against the scene of federal agents arresting sick people and ignoring the will of state voters will help turn the tide in our favor.