Saturday, November 27, 2004

The End of the War on Drugs, or the End of Federalism?
On Monday, the case Ashcroft v. Raich will be heard by the Supreme Court. Nominally, the case involves the usage of medical marijuana, but it is a bit more complicated than that. You see, California passed an intiative a while back called Prop 215, legalizing the use of medical marijuana. The Clinton administration did not like that, so it began harassing doctors who prescribed it (threatening them with loss of their license) and bringing criminal suit against the cooperatives that sold it as a violation of Federal Law. As you might expect, a law passed within an enumerated power (or two/three) of congress trumps the law of the state. Case closed.

Or is the case closed? You see, the defendants didn't buy their pot. It was given to them or self-grown. And it was grow from seeds that came from California. Why is this important? Well, the enumerated power that Congress used to pass the Controlled Substance Act of 1970 (which is the statutory basis for the war on drugs) was that drugs affected interstate commerce. Under Article I, Section 8, Clause 3 of the Constitution the United States Congress has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Suddenly it begins to get a bit fuzzy seeing how these seeds have anything to do with interstate congress (one of the government's arguments that might have trouble passing the laugh test is that by using self grown marijuana, ms. raich and ms. monson do not use prescription drugs which infintesamally affects the price of a drug making it part of interstate commerce under the old case of Wickard v. Filborne).

Now anything "affects" interstate commerce, but under the "federalism revolution" that is not supposed to be good enough. To be a valid exercise of this power, congress can only pass a law regulating:

(1) the channels of commerce,
(2) the instrumentalities of commerce, and
(3) action that substantially affects interstate commerce

So what is this federalism revolution? If you click on the link above, you'll get the details. Alternatively, leftist ACSBlog (let's just say that organizationally, or at least at Stanford, they are not the biggest fans of it) summary of it has been included below.

Almost a decade ago, a conservative 5-4 majority in U.S. v. Lopez sparked a revolution in federalism jurisprudence by overturning the Gun Free School Zones Act of 1990. Speaking for the Court, Chief Justice Rehnquist held that guns in schools do not have a substantial enough impact on interstate commerce to fall within the Congress’ Commerce Power. Five years later, a similar reasoning was applied to invalidate the Violence Against Women Act in U.S. v. Morison. Both decisions were hailed by conservative groups, with some even arguing they did not go far enough. According to University of Tennessee law professor Glenn Reynolds (AKA Instapundit):
The Supreme Court can go further. It can and should underscore that the "affecting commerce" test was not intended to allow Congress to find some incidental contact with interstate commerce (for example, that a gun or automobile was manufactured out of state), claim authority, and then extend federal power to everything in sight. When Congress outlaws possession of guns that have at some time been in interstate commerce, as in Scarborough, everyone knows that Congress is not trying to regulate commerce--it is trying to regulate the possession and use of guns.

Here Congress wasn't trying to regulate commerce - it was trying to regulate pot. And everybody knows it. So will the Court follow its federalism precedent now that it would help a cause that liberals as opposed to conservatives care about? Let's just say that if they are hypocritical and do not, the left is ready to pounce.

One can agree or disagree with Reynolds’ pre-New Deal understanding of the Commerce Clause, and the wisdom, or lack thereof, of the New Federalism is a topic for a different article, but the legal similarities among Lopez, Morrison and Raich are unavoidable. According to Randy Barnett, the Boston University law professor and senior fellow at the Cato Institute who litigated Raich, "it is supremely ironic, therefore, that the San Francisco-based Ninth Circuit, much maligned by conservatives, is the court of appeals that is taking the Supreme Court's new Commerce Clause jurisprudence the most seriously." As Barnett acknowledges, however, Raich is distinguishable from Lopez and Morrison in that an issue liberals tend to care about, medical marijuana usage, is now at stake.

If Raich loses, federalism is for all intensive purposes dead for the present, because it will be shown to be a doctrine that only will be enacted to save conservative causes. If Raich wins however, it begins to be easy to see a way to end the war on drugs. Make your drugs yourself or buy them from an instate dealer in a state where they will have been decriminalized.

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