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The Supreme Court, Medical Marijuana and the Commerce Clause

The Supreme Court has decided to consider Ashcroft v. Raich.
For details on the case, see my original post on the victory in the 9th Circuit. Basically this boils down to a challenge of the federal government’s ability to interfere in the states using their authority under the interstate commerce clause, when no commerce or interstate is involved.
The commerce clause in the Constitution, which gives the feds their power:

The Congress shall have power… To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

The particular case involved medical a marijuana cooperative in California and operating legally under state law, where patients grew their own medicine and it was not sold. A perfect and clean test of the erosion of the commerce clause (and boy, has it eroded since the Constitution was written).
The 9th circuit saw the group’s activities as “the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician pursuant to valid California state law” and therefore not subject to the commerce clause.
The case is so basic and so clear that I don’t see how the Supreme Court can rule in favor of the government without completely eliminating any meaning to the commerce clause. It would then, in effect, read:

The Congress shall have power… To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; and to regulate anything else they wish within the several states.

I’m certainly not the only one who feels this way. Randy Barnett, one of the principal attorneys representing Angel Raich and Diane Monson, writes at the Volokh Conspiracy:

A ruling for the government in Raich would, in my view, represent the effective repudiation of Lopez and Morrison, for the government’s reasoning would allow Congress it to reach whatever activity it chooses provided that its statutory scheme was sufficiently large enough. In other words, by the government’s theory, the more power that Congress claims, the more justified is its claim of power. Therefore, if the Court reaches the merits, whatever it decides in Raich v. Ashcroft will be a landmark decision with enormous importance for the future of federalism.

Since I cannot imagine that the Supreme Court would be willing to eliminate federalism and states’ rights (as a ruling in favor of the government would effectively do), I can only believe that the Supreme Court will uphold the 9th circuit, effectively ending the federal government’s harrassment of medical marijuana patients.
The only question will be what limits are placed. For example, Circuit Judge Harry Pregerson wrote that states are free to adopt medical marijuana laws so long as the marijuana is not sold, transported across state lines or used for non-medicinal purposes. I guess that in the Supreme Court case, questions will be raised regarding whether growers of medical marijuana can be compensated, whether the marijuana can use seeds obtained from out-of-state, etc.
It’ll be an interesting ride.
Oh, and you know why federalism is a good thing?

“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” – Justice Brandeis

What better way to test drug policy changes than through the states?

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1 comment to The Supreme Court, Medical Marijuana and the Commerce Clause

  • Im just happy that people in authority are having a dialoue about marijuana. I think the amount of time and resources spent on the enforcemnt of its prohibition is ridiculous. Thanks or the post.