SCOTUS has ruled that the individual use of medical marijuana is unconstitutional. This decision invalidates the laws of 10 states that have decided to allow medicinal marijuana use under a doctor’s supervision.
This decision represents the most heinous vomit the Supreme Court has yet spewed forth. First, and most significantly, the Court has no authority to control the actions of two individuals in CA. These women grow their own personal supply in their own backyard. They adhere to state law. They don’t transport their bud across state lines for profit. Therefore, if anything, SCOTUS should have declared that any Congressional interference with these laws would be unconstitutional.
But alas, in a move that dramatically strengthens the power of the federal government at the expense of states’ rights, the court has decided that the federal statute outlawing marijuana takes precedent over any state declaration. Fabulous. What’s next? If the feds decide that all police officers should cluck like a chicken before mirandizing a criminal, will the states be helpless to say, “hell no!’?
In his majority opinion, Stevens says that Congress could pass legislation permitting the use of medical marijuana. Great. I love Congress and everything, but they have no right to butt in if my cousin wants to grow a marijuana plant or two to stimulate his appetite when it’s been destroyed by the ravages of HIV. Congress should be concerned about issues of national and international importance, not whether my neighbor has a plant and smokes a blunt in his own home every now and then.
Really. I’m disgusted.
Particularly when international medicinal research is slowly uncovering the health benefits of cannabis.
UPDATE Instapundit has more coverage.
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Categories: Health Care & Medicine
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June 6th, 2005 at 1:59:22 pm
This decision represents the most heinous vomit the Supreme Court has yet spewed forth.
Hon, I know you’re prone to hyperbole, but come on, “the most heinous”? More than Roe v. Wade (which has led to millions of needless deaths), or, say, Plessy v. Ferguson, or Dred Scott?
June 6th, 2005 at 2:06:42 pm
This is a terrible day for real medicine.
“Our national medical system relies on proven scientific research, not popular opinion. To date, science and research have not determined that smoking marijuana is safe or effective,” John Walters, director of National Drug Control Policy, said Monday.
I fully disagree with Walters. More research needs to be done, naturally, but it’s hard to deny the efficacy of marijuana to treat several disorders–especially the effects on patients with terminal illness!
June 6th, 2005 at 2:12:34 pm
I agree with Justice Stevens (I never thought I’d state those words). There is federal law on point Becky, pure and simple. For the Supreme Court to decided otherwise would be to basically abandon federalism. Federal law trumps…that’s just the way it is.
June 6th, 2005 at 2:23:26 pm
I was quite surprised at the ruling, actually; because interstate commerce is specifically not involved, I am not sure how this is regulable by the Federal Government. I can’t say that I’m too worked up over it, as I’m not the sort to use such substances, but at the same time it bewilders me that they could make this decision.
Giving Becky the benefit of the doubt, I’d say she was not referring to this as the most heinous outcome that has resulted from a Supreme Court decision, but is rather upset at the lack of recognition of states’ rights represented by it. Certainly Dred Scott and Plessy are worse in the outcome….
June 6th, 2005 at 2:24:44 pm
Where in the Constitution does it allow the War on Drugs again?
Though talking about the “health benefits” of cannabis is rather absurd. Like any other medicine, it has side effects. Same reason it’s only ever wise to use Ritalin to treat ADD, not for fun. (Though, actually, I’m not entirely convinced we should be drugging the kids who can’t sit still in class, but that’s another argument for another time.)
June 6th, 2005 at 2:26:59 pm
yes, it does. There is a but. But the things federal law can do is limited by the Constitution. Specifically, there is no interstate commerce or any other “hook” that I can see that would permit Congress to legislate on the matter. In other words, federal law does trump, but the federal law is unconstitutional, at least as applied, therefore we revert to state law. It doesn’t really have anything to do with drugs, it has to do with the limited powers of Congress. Unless you think Congress should be permitted to regulate the raising of chickens for personal use, I tend to think that it is a state, or probably municipal matter more than a federal one…
June 6th, 2005 at 2:44:02 pm
I am happy to see that committed liberals Dane and Brian are such strong federalists. I believe that may come in handy for me in future ideological clashes. ;-)
June 6th, 2005 at 2:55:29 pm
Andrew, I’ve generally had a fairly strict, as it were, view of constitutional interpretation. This, as Chris might tell you, has been cause for no end of philosophical problems and you would be right to point out that Roe is a problematic decision. That being said, I tend to follow a more Hamiltonian view of Federalism over the Jeffersonian approach. Clearly there are things that the federal government is better at than the state, and there are things that the state is better at than the federal. I might talk more about this later if need warrants.
June 6th, 2005 at 3:08:24 pm
Wholly Begonias!
I agree fully with Brian!
June 6th, 2005 at 3:10:32 pm
But Dane, whether the federal government is better or worse at something is irrelevant. Enumerated powers are enumerated powers, no?
June 6th, 2005 at 3:22:31 pm
Some claims have been made that the government is free to act when it has a compelling interest to protect the welfare of citizens, and indeed, that seems to be recognized by the dissenting opinion:
“The states’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens,” said O’Connor[.]
The conflict, of course, is that what happens when the interpretation of the safety and welfare of citizens isn’t roughly the same between a state and the fed? However, I fail to see why, when the state has already decided how to apply the law within its borders, the Federal government feels the need to step in and further restrict the rights of citizens. Presumably Andrew will want to pull this out later when we are discussing abortion rights: when a state has passed a law prohibiting abortions, what right does the Federal government have to overturn it?
The reasoning is probably more complex than this — after all, IANAL — but as I see it, the Fourteenth Amendment explicitly says that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”; one might reasonably argue that the marijuana case in question is an example of the Federal government making additional restrictions, while the abortion decision is an example of the Federal government ensuring that fewer restrictions are made.
Andrew’s (and Patrick’s and Alfred’s and…) counter would presumably be that ‘unborn persons’ are being denied equal protection, and that they outweigh other considerations. I reject that a non-specialized clump of cells counts as a person, though, while the mother clearly does count.
Something tells me we will never agree on this point. :)
June 6th, 2005 at 3:57:46 pm
Anyone read Freakanomics? Interesting commentary on one relevant benefit to soceity from legalized abortion.
June 6th, 2005 at 4:04:18 pm
Okay, now I disagree with you, Brian.
It is not a lump of cells. It is a human life starting its journey.
But Godless people son’t understand that concept because we are all just as valuable as a tree, a rock or pimple in the eyes of an athiest.
There is no law to make Roe V. Wade legal under the Constitution. There is plenty in the Constitution to make abortion legal, safe and rare. There is also enough in the Constitution to make Roe V. Wake illeagal as well, but nothing in the Constitution allows what the courts did with Roe V. Wade.
Which was recanted because Jane Doe now denies she was even raped.
June 6th, 2005 at 4:16:45 pm
I did read Freakonomics; Quite an interesting read. His conclusion about abortion comes from his earlier studies into crime and such; you can read a (bit dated) piece about it here:
http://slate.msn.com/id/33569/entry/33571/
June 6th, 2005 at 4:30:29 pm
The U.S. currently spends $20 billion every year on the war on drugs. Can someone please explain to me why they are spending my money to fight against something that does in fact help many people?
June 6th, 2005 at 4:41:30 pm
It hasn’t “in fact” been shown to help so many people. See above comments.
June 6th, 2005 at 4:57:48 pm
Was interstate commerce really involved in the lottery tickets case? No. The phrase can mean anything the courts wants it to. I’m not saying that’s appropriate, but so long as the federal law passes the commerce test being used by the court, a state law will not supercede.
June 6th, 2005 at 4:59:48 pm
here’s a post by Rick Garnett on Raich:
http://www.mirrorofjustice.com/mirrorofjustice/2005/06/subsidiarity_an.html
June 6th, 2005 at 5:02:44 pm
My bootstrap rules.
June 6th, 2005 at 5:22:47 pm
As a Constitutional Law matter, I’d have to say that if Wickard v. Filburn is still good law, then this decision is correct (or at least defensible), but if Wickard v. Filburn is not good law, then this decision is incorrect and indefensible. (For those who don’t know what I’m talking about, click here.)
As I recall, some conservatives in our ConLaw class regarded Wickard as absolutely the most awful, revolting, indefensible intrusion into states’ rights of all the court’s Interstate Commerce Clause decisions. Those folks are, presumably, outraged by this decision as well. But for those who agree with Wickard, this decision is fairly easy to support, methinks.
June 6th, 2005 at 5:31:33 pm
I disagree, “But…”, Cannabis has been shown to positively affect patients with a variety of diseases in a plethora of independent medical studies.
Some examples from abstracts gleaned from a simple PubMed search:
*Two large trials found that cannabinoids were significantly better than placebo in managing spasticity in multiple sclerosis. Patients self-reported greater sense of motor improvement in multiple sclerosis than could be confirmed objectively.
*HIV patients on physically demanding drug regimens and with painful disease symptoms report improved appetite, muscle pain, nausea, anxiety, nerve pain, depression, and paresthesia. (Many also reported associated memory deterioration)
*Recent studies in animal models and in humans have produced promising results for the treatment of various disorders - such as obesity, cancer, and spasticity and tremor due to neuropathology - with drugs based on marijuana-derived cannabinoids.
*In smaller qualifying trials, cannabinoids produced significant objective improvement of tics in Tourette’s disease, and neuropathic pain.
*Marijuana has been used as a successful treatment for glaucoma (the leading cause of irreversible blindness) for many years.
…There are more, but this is a decent cross-section of common disease treatments. All of this research is still relatively recent and must continue to face repeated, rigorous and independent verification before widespread acceptance–but, IMO, there seems to be a volume of positive data associated with medicinal use of marijuana.
June 6th, 2005 at 5:52:36 pm
What is the harm in allowing medicinal use of marijuana? If it may ease suffering, have some other beneficial effects; why not allow its limited use? Even if it is a breakeven medically, what is the downside?
If it is a ’slippery slope’ argument, that the stoner lobby is trying to ‘backdoor’ it’s use to bring about a pothead culture, then why not ban narcotics for the same reason, as they are also shown to be a black market good that is far more harmful.
If it is a morality question, how is it immoral to provide comfort and possibly healing to the sick and in pain by any means necessary which doesn’t have a negative effect on anyone else?
Hate to distract from the State’s Rights question, and the fun of the ICC, but this seems like the most pertinent question of the issue.
June 6th, 2005 at 5:57:09 pm
Is it really proper to apply Wickard here? What does congress care if the national demand for marijuana is (slightly) lowered by home-grown medicinal pot? It’s not like they’re collecting taxes on the stuff. Or trying to keep prices up…
June 6th, 2005 at 6:59:22 pm
<i>This decision represents the most heinous vomit the Supreme Court has yet spewed forth.</i>
Hon, I know you’re prone to hyperbole, but come on, “the most heinous”? More than <i>Roe v. Wade</i> (which has led to millions of needless deaths), or, say, <i>Plessy v. Ferguson</i>, or <I>Dred Scott</i>?
June 6th, 2005 at 7:06:42 pm
This is a terrible day for real medicine.
<i>”Our national medical system relies on proven scientific research, not popular opinion. To date, science and research have not determined that smoking marijuana is safe or effective,” John Walters, director of National Drug Control Policy, said Monday.</i>
I fully disagree with Walters. More research needs to be done, naturally, but it’s hard to deny the efficacy of marijuana to treat several disorders–especially the effects on patients with terminal illness!
June 6th, 2005 at 7:12:34 pm
I agree with Justice Stevens (I never thought I’d state those words). There is federal law on point Becky, pure and simple. For the Supreme Court to decided otherwise would be to basically abandon federalism. Federal law trumps…that’s just the way it is.
June 6th, 2005 at 7:23:26 pm
I was quite surprised at the ruling, actually; because interstate commerce is specifically not involved, I am not sure how this is regulable by the Federal Government. I can’t say that I’m too worked up over it, as I’m not the sort to use such substances, but at the same time it bewilders me that they could make this decision.
Giving Becky the benefit of the doubt, I’d say she was not referring to this as the most heinous <b>outcome</b> that has resulted from a Supreme Court decision, but is rather upset at the lack of recognition of states’ rights represented by it. Certainly Dred Scott and Plessy are worse in the outcome….
June 6th, 2005 at 7:24:44 pm
Where in the Constitution does it allow the War on Drugs again?
Though talking about the “health benefits” of cannabis is rather absurd. Like any other medicine, it has side effects. Same reason it’s only ever wise to use Ritalin to treat ADD, not for fun. (Though, actually, I’m not entirely convinced we should be drugging the kids who can’t sit still in class, but that’s another argument for another time.)
June 6th, 2005 at 7:25:22 pm
Alright Andrew, I’ll concede that my hyperbole is perhaps a bit much, so long as you’ll concede that this decision sucks monkey butt.
I’m slightly pissed at darling Sandra Day because her dissent is kind of crappy. I mean, I’m all for good policy, but good policy needs to be backed by solid legal reasoning and her dissent was frankly lacking in the latter.
And Patrick, while federal laws trump state laws, the federal laws in question have to be both Constitutional and applicable. I don’t believe the feds have jurisdiction here.
Moreover, I question how this decision will impact current research at major medical schools across the US; even Harvard has begun researching the potential benefits of components of marijuana, LSD and even meth!
Now, in trying to think about abortion and this issue, I actually think it would be ideologically consistent to allow both abortion and the medicinal use of mary jane, particuarly because both can dramatically impact the health and well-being of the patient. Neither need to impact interstate commerce.
I will say that the most exciting thing I’ve learned in all of this is that Canada has an OTC drug with THC in it! Who knew!?!
June 6th, 2005 at 7:26:59 pm
yes, it does. There is a but. But the things federal law can do is limited by the Constitution. Specifically, there is no interstate commerce or any other “hook” that I can see that would permit Congress to legislate on the matter. In other words, federal law does trump, but the federal law is unconstitutional, at least as applied, therefore we revert to state law. It doesn’t really have anything to do with drugs, it has to do with the limited powers of Congress. Unless you think Congress should be permitted to regulate the raising of chickens for personal use, I tend to think that it is a state, or probably municipal matter more than a federal one…
June 6th, 2005 at 7:40:36 pm
What is the harm in allowing medicinal use of marijuana? If it may ease suffering, have some other beneficial effects; why not allow its limited use? Even if it is a breakeven medically, what is the downside? … Hate to distract from the State’s Rights question, and the fun of the ICC, but this seems like the most pertinent question of the issue.
I have to disagree with you, Russ. The Supreme Court is not supposed to set national policy; they are supposed to decide issues of constitutional law (and interpret federal law). Therefore this ruling does not (or should not) have anything to do with your “what is the harm” question. That’s a policy question which is either for Congress to decide or for the states to decide — it’s not for SCOTUS to decide. Today SCOTUS ruled that it’s for Congress, rather than the states, to decide; so your “what is the harm” question is a very relevant question to ask your member of Congress, but it is not directly pertinent to the Supreme Court’s ruling.
Anonymous, read the link I posted, I think it explains the relevance of Wickard quite well. Your question, “What does congress care,” is irrelevant — the issue is whether Congress has the power to regulate on this issue, not whether it should or should not “care” about the issue. If Congress has the power to regulate something, then SCOTUS clearly cannot strike down its regulation on the basis of “What does congress care?” Constitutionally speaking, Congress can care about whatever it damn well pleases, however dumb we might think those priorities are, as long as it’s within its enumerated powers.
Many laypeople have an unfortunate tendency to confuse Supreme Court rulings on the constitutionality of laws with policy decisions. I would advise y’all to avoid that mistake. (It doesn’t help, of course, that SCOTUS justices sometimes do — arguably, at least — let their policy preferences interfere with their legal judgments, but that still doesn’t justify the blanket assumption that, in any given case, SCOTUS is endorsing or rejecting a given policy choice when it rules on the constitutionality of a law.) For example, I’m sure that all nine justices would agree that violence against women is a bad thing, but they overturned the Violence Against Women Act because they (well, 5 of them) felt it was unconstitutional.
June 6th, 2005 at 7:42:00 pm
Becky, I can’t agree the decision sucks monkey butt until I’ve read it. The Texas sodomy decision sucked monkey butt; even if I agreed with its decision, the opinion was so tortured and inane, Scalia’s dissent ripped it to shreds.
99% of the time, I’m on the same page as Scalia; 98% of the time, I’m with Thomas (we differ on pornography decisions–Thomas seems to like his porn a bit too much), and 97% of the time I’m with Rehnquist (I like him most of the time but on the most random issue we’ll come down on opposite sides). I’m not impressed with Kennedy or O’Connor whatsoever, even when I agree with them, which is probably upwards of 85% of the time.
The U.S. currently spends $20 billion every year on the war on drugs. Can someone please explain to me why they are spending my money to fight against something that does in fact help many people?
That’s a dumb statement, Kristy. The $20 billion does not go to fight just cannabis, a lot of it goes to fight other drugs like cocaine and heroin. I respect the libertarian argument that we shouldn’t have a war on drugs on personal liberty grounds, but not on cost grounds because as much as we spend, the indirect cost to society would be just as high or worse if we legalized all those drugs (see: Amsterdam).
June 6th, 2005 at 7:44:02 pm
I am happy to see that committed liberals Dane and Brian are such strong federalists. I believe that may come in handy for me in future ideological clashes. ;-)
June 6th, 2005 at 7:46:11 pm
I agree with this comment from the Volokh Conspiracy:
(5) I was both amused and anchored by Justice Stevens’s paean to the democratic process as the appropriate avenue of relief for advocates of medical marijuana at the end of his opinion. Every Justice who joined Stevens’s opinion voted to prohibit states from regulating homosexual sex in Lawrence and [if they were on the Court at the time] voted to limit the government’s power to regulate abortion in Casey. Why was the democratic process not the appropriate avenue of relief for the victims of overzealous government regulation in those cases?
From what little I have read so far, I think I am going to end up agreeing with the dissenters on this one, but I’m still holding my judgment until I have better educated myself on the relevant material.
June 6th, 2005 at 7:47:36 pm
100 years ago Coca Cola contained actual cocaine, because it was supposed to be good for you. 60 or so years ago doctors were still prescribing smoking for heart patients. Now a few people are saying there might be some benefit to marijuana (ignoring of course the side effects).
June 6th, 2005 at 7:55:29 pm
Andrew, I’ve generally had a fairly strict, as it were, view of constitutional interpretation. This, as Chris might tell you, has been cause for no end of philosophical problems and you would be right to point out that Roe is a problematic decision. That being said, I tend to follow a more Hamiltonian view of Federalism over the Jeffersonian approach. Clearly there are things that the federal government is better at than the state, and there are things that the state is better at than the federal. I might talk more about this later if need warrants.
June 6th, 2005 at 7:59:53 pm
David - not just a few … MJs usefulness to counter glaucoma is well-documented … and its usefulness to counter nausea and vomiting associated with AIDS and HIV meds is also well-documented …
June 6th, 2005 at 8:08:24 pm
Wholly Begonias!
I agree fully with Brian!
June 6th, 2005 at 8:10:32 pm
But Dane, whether the federal government is better or worse at something is irrelevant. Enumerated powers are enumerated powers, no?
June 6th, 2005 at 8:13:56 pm
I side with the those who believe that prescribed medicinal usage of the evil Weed :) can be efficacious and Ought to be allowed; and, on the totally unrelated Legal issue, I stand with State’ Rights dissenters Rehnquist, Thomas and O’Connor. (What the Hell caused Scalia to fall off the Wagon, is what I’d like to know. Maybe he Divined that the ol’ Ganja wasn’t part of the Original Intent. :)
HOWEVER ~ a little Context & Perspective :) ~
“SCOTUS has ruled that the individual use of medical marijuana is unconstitutional. This decision invalidates the laws of 10 states that have decided to allow medicinal marijuana use under a doctor’s supervision.”
Um, but as I understand it, (a) no it hasn’t, and (b) no it doesn’t.
“People shouldn’t panic. There aren’t going to be many changes,” California Attorney General Bill Lockyer said. “Nothing is different today than it was two days ago, in terms of real-world impact.”
The high court ruled 6-3 that people who smoke marijuana because their doctors recommend it to ease pain can be prosecuted for violating federal drug laws.
The ruling does not strike down medical marijuana laws in California, Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont or Washington state. In many places over the past years, local authorities have shown no interest in arresting people who smoke pot for medical reasons.
The decision upholds (questionably, IMO) the Constitutionality, and thus the (hypothetical) enforceability, of the federal statute banning such deployment of the Dope, which is what was challenged ~ the permissive state laws being, what Weren’t so challenged. (As for the actions of the Private Individual Citizen, I’m hard put to think of many such which might be deemed actually Unconstitutional. Owning slaves, I suppose. What else, Law students? Asserting a Title of Nobility? Conducting a Foreign Policy? :)
IOW I don’t like the decision either, but I suspect some Overreaction is occurring.
Also (as suggested by Brendan above), I’d imagine those who oppose Judicially-activistic Public Policymaking, of the Lefty OR Righty variety, would agree that the questions of (a) whether the Pot’s alleged medicinal value is supported by sufficient empirical Evidence and (b) if So, whether such benefit outweighs the mortal peril posed by Reefer Madness to the bodies & souls of our Youth :), is none of the Supreme Court’s business whatsoever. :>
By the way, ~
The state Senate in Connecticut passed a bill early Saturday morning that would let seriously ill patients use the drug. House leaders said they were uncertain if the bill would get a vote in that chamber before Wednesday’s adjournment of the legislative session.
The bill’s chief backer, Rep. Penny Bacchiochi, R-Somers, said the high court ruling would likely make lawmakers think more about the legislation. “It’s bad timing for the bill,” she said.
I think they’ve already admitted they’re not gonna get a state Budget enacted on time anyway, Deadline Schmeadline, they’ll go to a special session; so I say just Pass the Pot. Let me Rephrase that, place the Bill at the top of the House Calendar and adopt it. :) “The Supreme Court has made its decision, now let them enforce it.” :)
June 6th, 2005 at 8:22:31 pm
Some claims have been made that the government is free to act when it has a compelling interest to protect the welfare of citizens, and indeed, that seems to be recognized by the dissenting opinion:
“<i>The states’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens,</i>” said O’Connor[.]
The conflict, of course, is that what happens when the interpretation of the safety and welfare of citizens isn’t roughly the same between a state and the fed? However, I fail to see why, when the state has already decided how to apply the law within its borders, the Federal government feels the need to step in and further restrict the rights of citizens. Presumably Andrew will want to pull this out later when we are discussing abortion rights: when a state has passed a law prohibiting abortions, what right does the Federal government have to overturn it?
The reasoning is probably more complex than this — after all, IANAL — but as I see it, the Fourteenth Amendment explicitly says that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”; one might reasonably argue that the marijuana case in question is an example of the Federal government making additional restrictions, while the abortion decision is an example of the Federal government ensuring that <i>fewer</i> restrictions are made.
Andrew’s (and Patrick’s and Alfred’s and…) counter would presumably be that ‘unborn persons’ are being denied equal protection, and that they outweigh other considerations. I reject that a non-specialized clump of cells counts as a person, though, while the mother clearly does count.
Something tells me we will never agree on this point. :)
June 6th, 2005 at 8:37:01 pm
“The Supreme Court has made its decision, now let them enforce it.”
You have a good point. Nothing will change as a result of this ruling. California isn’t going to suddenly find it worth its while to prosecute federal drug crimes involving marijuana, just as many local police forces refuse to make arrests based on immigration status. Somehow I can’t see the FBI and U.S. Marshalls being sent in to weed out (pun intended) the offenders, unless of course said offenders have done something else to attract the federal authorities’ attention. The problem with criminals is that, because they get away with some form of contraband or law-breaking, too often they feel they are immune to any laws. Thus, mob bosses set themselves up for detention and prosecution on tax evasion charges, and Florida human traffickers attracted investigations because they were illegally dumping raw sewage. This is why we call them dumb criminals.
June 6th, 2005 at 8:57:46 pm
Anyone read Freakanomics? Interesting commentary on one relevant benefit to soceity from legalized abortion.
June 6th, 2005 at 9:04:18 pm
Okay, now I disagree with you, Brian.
It is not a lump of cells. It is a human life starting its journey.
But Godless people son’t understand that concept because we are all just as valuable as a tree, a rock or pimple in the eyes of an athiest.
There is no law to make Roe V. Wade legal under the Constitution. There is plenty in the Constitution to make abortion legal, safe and rare. There is also enough in the Constitution to make Roe V. Wake illeagal as well, but nothing in the Constitution allows what the courts did with Roe V. Wade.
Which was recanted because Jane Doe now denies she was even raped.
June 6th, 2005 at 9:16:45 pm
I did read Freakonomics; Quite an interesting read. His conclusion about abortion comes from his earlier studies into crime and such; you can read a (bit dated) piece about it here:
http://slate.msn.com/id/33569/entry/33571/
June 6th, 2005 at 9:30:29 pm
The U.S. currently spends $20 billion every year on the war on drugs. Can someone please explain to me why they are spending my money to fight against something that does in fact help many people?
June 6th, 2005 at 9:37:46 pm
100 years ago Coca Cola contained actual cocaine, because it was supposed to be good for you. 60 or so years ago doctors were still prescribing smoking for heart patients. Now a few people are saying there might be some benefit to marijuana (ignoring of course the side effects).
David, are you serious? The FDA couldn’t regulate the patent medicine industry until the Food, Drugs and Cosmetics Act of 1938 was enacted. Only then was the framework laid for the current system of mandatory pre-market approval of new drugs. [Even then drug companies had to only show the safety of their drugs. It wasn’t until 1962 when the Kefauver-Harris Amendments required proof of both safety and efficacy prior to market release.]
Frankly, any truthful comparison to modern therapeutic drug treatments and memes should be from 1962 on…
Additionally, the state of physiology & pharmacology research has changed drastically over the last twenty years and we are light years (light centuries?) ahead of the medical knowledge of the 1900s or 1940s. It’s probably reasonable to say that most medical opinion preceding the 60s was generally speculation, trial & error, a few lucky breaks and age-old convention.
Of course, this is not to say today’s system is anywhere near perfect! Vioxx & Celebrex are recent, clear cases of the complexity of this type of research & the unexpected results of therapeutic drug use.
That said, it is not a “few people” who say there “might” be benefits to marijuana as a treatment option. It is rather established as an effective treatment option in some limited cases and is generally viewed as a real candidate for legitimate potential treatment options; the multiple sclerosis research alone has been very promising.
And no scientific body that matters is ìignoring the side effectsî because those are as important as the therapeutic effects in any drug study.
June 6th, 2005 at 9:38:45 pm
One thing I hope to make clear: the scientific research and medical treatment application of cannabinoids should be treated as a separate issue from the legalization of marijuana for recreational use. One is a public health and science issue. The other is a social issue. The pro-legalization crowd has co-opted the medicinal marijuana argument to serve their own purposes. [They also do the same with the promoting the use of hemp for agricultureÖ]
Regardless of how one feels about the prospect of legal recreational drug use it is completely different from medical/research use! Arguments opposed and in support should focus solely on the issue at hand, in my opinion, so as to not cloud the debate.
[Frankly, though, I donÃÂt understand how there could be a debate about medicinal marijuana if it is used in treatments in which it has been proven successfulóthe same situation currently applies to amphetamines, opiates and steroids! I would also heartily disagree with any proposal to limit research on additional uses of cannabinoids, eitherÖ]
June 6th, 2005 at 9:41:30 pm
It hasn’t “in fact” been shown to help so many people. See above comments.
June 6th, 2005 at 9:56:32 pm
Joe, saying that the law doesn’t strike down medical marijuana laws is like saying that Roe v. Wade doesn’t prevent states from banning abortion. Fact is, the political climate is such that I could honestly see the feds enforcing this decision. Alberto Gonzalez doesn’t strike me as the most libertarian type.
For those saying that marijuana doesn’t have medical benefits, you are clearly mistaken. When people smoke marijuana, they inhale more than 60 chemicals, some of which are beneficial and some of which clearly aren’t. Medical research will allow us to eventually separate the good from the bad. But in the meantime, it makes logical sense to allow terminally ill people to exploit the health benefits of pot before the detriments make medicinal use nonsensical.
Anyway, federal harassment and enforcement of drug policy spawned this case in the first place, as these two old ladies were pissed that the feds were bothering them.
June 6th, 2005 at 9:57:48 pm
Was interstate commerce really involved in the lottery tickets case? No. The phrase can mean anything the courts wants it to. I’m not saying that’s appropriate, but so long as the federal law passes the commerce test being used by the court, a state law will not supercede.
June 6th, 2005 at 9:59:48 pm
here’s a post by Rick Garnett on <i>Raich</i>:
http://www.mirrorofjustice.com/mirrorofjustice/2005/06/subsidiarity_an.html
June 6th, 2005 at 10:02:44 pm
My bootstrap rules.
June 6th, 2005 at 10:22:47 pm
As a Constitutional Law matter, I’d have to say that if <i>Wickard v. Filburn</i> is still good law, then this decision is correct (or at least defensible), but if <i>Wickard v. Filburn</i> is not good law, then this decision is incorrect and indefensible. (For those who don’t know what I’m talking about, <a href=”http://lsolum.blogspot.com/archives/2005_06_01_lsolum_archive.html#111806792342237189″>click here</a>.)
As I recall, some conservatives in our ConLaw class regarded <i>Wickard</i> as absolutely the most awful, revolting, indefensible intrusion into states’ rights of all the court’s Interstate Commerce Clause decisions. Those folks are, presumably, outraged by this decision as well. But for those who agree with <i>Wickard</i>, this decision is fairly easy to support, methinks.
June 6th, 2005 at 10:28:31 pm
Becky, there aren’t enough Feds to enforce these kinds of things on a massive scale, they would need a bigger fire to attract their attention or stumble upon the issue accidentally.
Federal law has primacy over state law, that is undisputed. The real question is then, Does the state have the right to regulate marijuana? Ban it completely? This Court’s answer was yes, the federal government has the right to enact laws concerning the growth and consumption of cannabis.
My questions for those who opposed the Court’s ruling today and believe it is Constitutional for individuals to grow and consume their own cannabis if they so choose, or think these laws should be left to the states:
1. If the FDA bans Vioxx but Californians want to keep using it, would Californians be disallowed from buying and selling Vioxx within state boundaries? Would the FDA’s jurisdiction no longer apply so long as Vioxx was not transported across state lines?
2. Does the federal government have the right to enact legislation prohibiting one from buying pseudophedrine and other legal chemicals, and baking methamphetamines for home/private use?
I think it’s easy to oppose the Court’s decision here when the discussion is about cannabis, but let’s think through the implications. How much federal law would be struck down as a result of this ruling? How much law would all fifty states then be forced to pass in order to backfill a host of drug “crimes” that are suddenly legal?
The unpopular, but correct, position may just be that many of these laws regarding drugs and use are unconstitutional insofar as they do not involve interstate commerce, and that we’d be faced with having either 50 different drug policies and/or needing to amend the Constitution.
I’d like to hear other people’s takes on my questions and comments.
June 6th, 2005 at 10:30:41 pm
Becky, sorry, but my dad is correct and you are flat wrong. The court merely said that federal drug laws are constitutional, and that those laws trump state medical marijuana laws (under the Supremacy Clause). It did NOT say that marijuana use itself is unconstitutional, nor that state laws allowing such use are inherently unconstitutional. They’re only banned to the extent that they conflict with federal drug laws. If Congress were to repeal the relevant federal drug laws, then state medical marijuana laws would be fine and dandy, no constitutional problem. Therefore your statement “SCOTUS has ruled that the individual use of medical marijuana is unconstitutional” is clearly incorrect, and your elaboration “saying that the law doesn’t strike down medical marijuana laws is like saying that Roe v. Wade doesn’t prevent states from banning abortion” is equally incorrect. In the case of abortion, there is absolutely nothing that Congress can do to overturn the court’s ruling, because SCOTUS did in fact say that any laws banning abortion, state or federal, are unconstitutional. Here, only state laws that conflict with contrary federal laws have been “struck down,” and only so long as the conflict remains. Congress can snap its fingers and legalize marijuana use any time it wants to. It CANNNOT snap its fingers and make abortion illegal, nor allow states to do so.
June 6th, 2005 at 10:31:33 pm
I disagree, “But…”, Cannabis <i>has</i> been shown to positively affect patients with a variety of diseases in a plethora of independent medical studies.
Some examples from abstracts gleaned from a simple PubMed search:
*Two large trials found that cannabinoids were significantly better than placebo in managing spasticity in multiple sclerosis. Patients self-reported greater sense of motor improvement in multiple sclerosis than could be confirmed objectively.
*HIV patients on physically demanding drug regimens and with painful disease symptoms report improved appetite, muscle pain, nausea, anxiety, nerve pain, depression, and paresthesia. (Many also reported associated memory deterioration)
*Recent studies in animal models and in humans have produced promising results for the treatment of various disorders - such as obesity, cancer, and spasticity and tremor due to neuropathology - with drugs based on marijuana-derived cannabinoids.
*In smaller qualifying trials, cannabinoids produced significant objective improvement of tics in Tourette’s disease, and neuropathic pain.
*Marijuana has been used as a successful treatment for glaucoma (the leading cause of irreversible blindness) for many years.
…There are more, but this is a decent cross-section of common disease treatments. All of this research is still relatively recent and must continue to face repeated, rigorous and independent verification before widespread acceptance–but, IMO, there seems to be a volume of positive data associated with medicinal use of marijuana.
June 6th, 2005 at 10:51:19 pm
Wow, everyone (minus Brendan) seems to be missing the boat on this one.
Now admittedly, my run-through of the opinion was pretty quick–but the opinion doesn’t (at least through my first glance) forbid the medical use of pot. It DOES NOT stand for the proposition that federal agents can burst into the home of a Californian person and stop that person from using pot for medicinal purposes. And it won’t result in such.
The case stands for a simple (albeit seemingly strange) proposition: Pursuant to the interstate commerce clause of Section 8 Article I of the Constitution, Congress CAN regulate the NON-commercial, INTRAstate PRODUCTION of cannabis. This case is not about USING pot, it’s about GROWING pot. Stevens’ opinion is quite clear that the Court accepts the medicinal quality of pot.
And yes, at first glance it seems very strange that the INTERstate COMMERCE clause could justify federal regulation in this case. As Professor Kelly taught us in class: “The interstate commerce clause allows Congress to regulate activity that is not interstate and is not commercial.”
That’s Wickard v. Filburn, and it is a foundational case in our interstate commerce jurisprudence. (And yes, Brendan is right that the conservatives in class hated the Wickard decision at first–many still do. But Professor Kelly, who is George W. Bush’s current Deputy Counsel, thinks it’s spot on–and he’s certainly a conservative)
Congress has the ability to regulate activity that will substantially affect interstate commerce (NLRB v. Jones), even if that activity in and of itself is not commercial and not interstate (Wickard). Congress passed the Act in question here in order to regulate the interstate price of various illicit drugs, including pot. Drug trafficking is an ACTIVITY, it is INTERSTATE, and it is COMMERCIAL. The price of drugs is dependant upon the quantity of production. A state law condoning personal production of an illicit drug has the potential of affecting the interstate price of drugs, and thus has the potential of affecting drug trafficking–which is an insterstate activity that Congress can regulate
Now, perhaps individuals growing pot in their homes for medicinal use is very negligible, and thus the production won’t have much of an affect on the price. That may well be–but that’s Congress’ call to make. If the State of California doesn’t like it: tough cookies–the federal legislature is superior to the California legislature. And the Court must show deference to Congress when faced with such policy questions. Otherwise, the Court will step vicariously over the line into judicial legislation.
Becky, you’re right: Congress can only pass laws that are constitutional. But arguing that this law is unconstitutional is a hard case to make in light of Wickard v. Filburn. And if you overturn Wickard v. Filburn…well, you’ve got a judicial and political shit-storm on your hands, because it will quintessentially alter the power of the Federal Government in ways that libertarians would love and liberals would hate. Our federal regulations would be turned on their heads. There’s a reason we have stare decisis…or at least that’s what you pro-choicers keep telling me
June 6th, 2005 at 10:52:36 pm
What is the harm in allowing medicinal use of marijuana? If it may ease suffering, have some other beneficial effects; why not allow its limited use? Even if it is a breakeven medically, what is the downside?
If it is a ’slippery slope’ argument, that the stoner lobby is trying to ‘backdoor’ it’s use to bring about a pothead culture, then why not ban narcotics for the same reason, as they are also shown to be a black market good that is far more harmful.
If it is a morality question, how is it immoral to provide comfort and possibly healing to the sick and in pain by any means necessary which doesn’t have a negative effect on anyone else?
Hate to distract from the State’s Rights question, and the fun of the ICC, but this seems like the most pertinent question of the issue.
June 6th, 2005 at 10:55:35 pm
well, no…Congress can pass any damn law it well pleases I suppose. But only those laws that pass constitutional muster can be executed
June 6th, 2005 at 10:57:09 pm
Is it really proper to apply Wickard here? What does congress care if the national demand for marijuana is (slightly) lowered by home-grown medicinal pot? It’s not like they’re collecting taxes on the stuff. Or trying to keep prices up…
June 6th, 2005 at 11:51:52 pm
Beef,
I hated Wickard v. Fillburn, but I agree with you. Overturning it would be a nightmare for courts.
Becky,
I’m not even touching your abortion and “improve health” statement. I don’t need to reopen that can of worms.
June 7th, 2005 at 12:25:22 am
Alright Andrew, I’ll concede that my hyperbole is perhaps a bit much, so long as you’ll concede that this decision sucks monkey butt.
I’m slightly pissed at darling Sandra Day because her dissent is kind of crappy. I mean, I’m all for good policy, but good policy needs to be backed by solid legal reasoning and her dissent was frankly lacking in the latter.
And Patrick, while federal laws trump state laws, the federal laws in question have to be both Constitutional and applicable. I don’t believe the feds have jurisdiction here.
Moreover, I question how this decision will impact current research at major medical schools across the US; even Harvard has begun researching the potential benefits of components of marijuana, LSD and even meth!
Now, in trying to think about abortion and this issue, I actually think it would be ideologically consistent to allow both abortion and the medicinal use of mary jane, particuarly because both can dramatically impact the health and well-being of the patient. Neither need to impact interstate commerce.
I will say that the most exciting thing I’ve learned in all of this is that Canada has an OTC drug with THC in it! Who knew!?!
June 7th, 2005 at 12:40:36 am
<i>What is the harm in allowing medicinal use of marijuana? If it may ease suffering, have some other beneficial effects; why not allow its limited use? Even if it is a breakeven medically, what is the downside? … Hate to distract from the State’s Rights question, and the fun of the ICC, but <b>this seems like the most pertinent question</b> of the issue.</i>
I have to disagree with you, Russ. The Supreme Court is not supposed to set national policy; they are supposed to decide issues of constitutional law (and interpret federal law). Therefore this ruling does not (or <i>should</i> not) have anything to do with your “what is the harm” question. That’s a policy question which is either for Congress to decide or for the states to decide — it’s not for SCOTUS to decide. Today SCOTUS ruled that it’s for Congress, rather than the states, to decide; so your “what is the harm” question is a very relevant question to ask your member of Congress, but it is not directly pertinent to the Supreme Court’s ruling.
Anonymous, read the link I posted, I think it explains the relevance of <i>Wickard</i> quite well. Your question, “What does congress care,” is irrelevant — the issue is whether Congress has the <i>power</i> to regulate on this issue, not whether it should or should not “care” about the issue. If Congress has the power to regulate something, then SCOTUS clearly cannot strike down its regulation on the basis of “What does congress care?” Constitutionally speaking, Congress can care about whatever it damn well pleases, however dumb we might think those priorities are, as long as it’s within its enumerated powers.
Many laypeople have an unfortunate tendency to confuse Supreme Court rulings on the constitutionality of laws with policy decisions. I would advise y’all to avoid that mistake. (It doesn’t help, of course, that SCOTUS justices sometimes do — arguably, at least — let their policy preferences interfere with their legal judgments, but that still doesn’t justify the blanket assumption that, in any given case, SCOTUS is endorsing or rejecting a given policy choice when it rules on the constitutionality of a law.) For example, I’m sure that all nine justices would agree that violence against women is a bad thing, but they overturned the Violence Against Women Act because they (well, 5 of them) felt it was unconstitutional.
June 7th, 2005 at 12:42:00 am
Becky, I can’t agree the decision sucks monkey butt until I’ve read it. The Texas sodomy decision sucked monkey butt; even if I agreed with its decision, the opinion was so tortured and inane, Scalia’s dissent ripped it to shreds.
99% of the time, I’m on the same page as Scalia; 98% of the time, I’m with Thomas (we differ on pornography decisions–Thomas seems to like his porn a bit <i>too</i> much), and 97% of the time I’m with Rehnquist (I like him most of the time but on the most random issue we’ll come down on opposite sides). I’m not impressed with Kennedy or O’Connor whatsoever, even when I agree with them, which is probably upwards of 85% of the time.
<i>The U.S. currently spends $20 billion every year on the war on drugs. Can someone please explain to me why they are spending my money to fight against something that does in fact help many people?</i>
That’s a dumb statement, Kristy. The $20 billion does not go to fight just cannabis, a lot of it goes to fight other drugs like cocaine and heroin. I respect the libertarian argument that we shouldn’t have a war on drugs on personal liberty grounds, but not on <i>cost</i> grounds because as much as we spend, the indirect cost to society would be just as high or worse if we legalized all those drugs (see: Amsterdam).
June 7th, 2005 at 12:46:11 am
I agree with this comment from <a href=”http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118075289″>the Volokh Conspiracy</a>:
<i>(5) I was both amused and anchored by Justice Stevens’s paean to the democratic process as the appropriate avenue of relief for advocates of medical marijuana at the end of his opinion. Every Justice who joined Stevens’s opinion voted to prohibit states from regulating homosexual sex in Lawrence and [if they were on the Court at the time] voted to limit the government’s power to regulate abortion in Casey. Why was the democratic process not the appropriate avenue of relief for the victims of overzealous government regulation in those cases?</i>
From what little I have read so far, I think I am going to end up agreeing with the dissenters on this one, but I’m still holding my judgment until I have better educated myself on the relevant material.
June 7th, 2005 at 12:47:36 am
100 years ago Coca Cola contained actual cocaine, because it was supposed to be good for you. 60 or so years ago doctors were still prescribing smoking for heart patients. Now a few people are saying there might be some benefit to marijuana (ignoring of course the side effects).
June 7th, 2005 at 12:59:53 am
David - not just a few … MJs usefulness to counter glaucoma is well-documented … and its usefulness to counter nausea and vomiting associated with AIDS and HIV meds is also well-documented …
June 7th, 2005 at 1:13:56 am
I side with the those who believe that prescribed medicinal usage of the evil Weed :) can be efficacious and Ought to be allowed; and, on the totally unrelated Legal issue, I stand with State’ Rights dissenters Rehnquist, Thomas and O’Connor. (<i>What the Hell caused Scalia to fall off the Wagon, is what I’d like to know. Maybe he Divined that the ol’ Ganja wasn’t part of the Original Intent.</i> :)
HOWEVER ~ a little Context & Perspective :) ~
<i>”SCOTUS has ruled that the individual use of medical marijuana <b>is unconstitutional</b>. This decision <b>invalidates the laws of 10 states</b> that have decided to allow medicinal marijuana use under a doctor’s supervision.”</i>
Um, but as I understand it, (a) no it hasn’t, and (b) no it doesn’t.
<i><a href=”http://apnews.myway.com/article/20050606/D8AIC5QO0.html”>”People shouldn’t panic. There aren’t going to be many changes,”</a> California Attorney General Bill Lockyer said. “Nothing is different today than it was two days ago, in terms of real-world impact.”
The high court ruled 6-3 that people who smoke marijuana because their doctors recommend it to ease pain <b>can be prosecuted for violating federal drug laws.</b>
The ruling <b>does not strike down medical marijuana laws</b> in California, Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont or Washington state. In many places over the past years, local authorities have shown no interest in arresting people who smoke pot for medical reasons.</i>
The decision upholds (questionably, IMO) the Constitutionality, and thus the (hypothetical) enforceability, of the federal statute banning such deployment of the Dope, which is what was challenged ~ the permissive state laws being, what Weren’t so challenged. (As for the actions of the Private Individual Citizen, I’m hard put to think of many such which might be deemed actually Unconstitutional. Owning slaves, I suppose. What else, Law students? Asserting a Title of Nobility? Conducting a Foreign Policy? :)
IOW I don’t like the decision either, but I suspect some Overreaction is occurring.
Also (as suggested by Brendan above), I’d imagine those who oppose Judicially-activistic Public Policymaking, of the Lefty OR Righty variety, would agree that the questions of (a) whether the Pot’s alleged medicinal value is supported by sufficient empirical Evidence and (b) if So, whether such benefit outweighs the mortal peril posed by Reefer Madness to the bodies & souls of our Youth :), is none of the Supreme Court’s business whatsoever. :>
<a href=”http://www.wfsb.com/Global/story.asp?S=3436821″>By the way,</a> ~
<i>The state Senate in Connecticut passed a bill early Saturday morning that would let seriously ill patients use the drug. House leaders said they were uncertain if the bill would get a vote in that chamber before Wednesday’s adjournment of the legislative session.
The bill’s chief backer, Rep. Penny Bacchiochi, R-Somers, said the high court ruling would likely make lawmakers think more about the legislation. “It’s bad timing for the bill,” she said.</i>
I think they’ve already admitted they’re not gonna get a <i>state Budget</i> enacted on time anyway, Deadline Schmeadline, they’ll go to a special session; so I say just Pass the Pot. Let me Rephrase that, place the Bill at the top of the House Calendar and adopt it. :) <i>”The Supreme Court has made its decision, now let them enforce it.”</i> :)
June 7th, 2005 at 1:37:01 am
<I>”The Supreme Court has made its decision, now let them enforce it.”</I>
You have a good point. Nothing will change as a result of this ruling. California isn’t going to suddenly find it worth its while to prosecute federal drug crimes involving marijuana, just as many local police forces refuse to make arrests based on immigration status. Somehow I can’t see the FBI and U.S. Marshalls being sent in to weed out (pun intended) the offenders, unless of course said offenders have done something else to attract the federal authorities’ attention. The problem with criminals is that, because they get away with some form of contraband or law-breaking, too often they feel they are immune to <i>any</i> laws. Thus, mob bosses set themselves up for detention and prosecution on tax evasion charges, and Florida human traffickers attracted investigations because they were illegally dumping raw sewage. This is why we call them <i>dumb</i> criminals.
June 7th, 2005 at 2:37:46 am
<i>100 years ago Coca Cola contained actual cocaine, because it was supposed to be good for you. 60 or so years ago doctors were still prescribing smoking for heart patients. Now a few people are saying there might be some benefit to marijuana (ignoring of course the side effects).</i>
David, are you serious? The FDA <i>couldn’t</i> regulate the patent medicine industry until the Food, Drugs and Cosmetics Act of 1938 was enacted. Only then was the framework laid for the current system of mandatory pre-market approval of new drugs. [Even then drug companies had to only show the safety of their drugs. It wasn’t until 1962 when the Kefauver-Harris Amendments required proof of both safety and efficacy prior to market release.]
Frankly, any truthful comparison to modern therapeutic drug treatments and memes should be from 1962 on…
Additionally, the state of physiology & pharmacology research has changed drastically over the last twenty years and we are light years (light centuries?) ahead of the medical knowledge of the 1900s or 1940s. It’s probably reasonable to say that most medical opinion preceding the 60s was generally speculation, trial & error, a few lucky breaks and age-old convention.
Of course, this is not to say today’s system is anywhere near perfect! Vioxx & Celebrex are recent, clear cases of the complexity of this type of research & the unexpected results of therapeutic drug use.
That said, it is not a “few people” who say there “might” be benefits to marijuana as a treatment option. It is rather established as an effective treatment option in some limited cases and is generally viewed as a <i>real</i> candidate for legitimate potential treatment options; the multiple sclerosis research alone has been very promising.
And no scientific body that matters is ìignoring the side effectsî because those are as important as the therapeutic effects in any drug study.
June 7th, 2005 at 2:38:45 am
One thing I hope to make clear: the scientific research and medical treatment application of cannabinoids <i>should</i> be treated as a <b>separate issue</b> from the legalization of marijuana for recreational use. One is a public health and science issue. The other is a social issue. The pro-legalization crowd <i>has</i> co-opted the medicinal marijuana argument to serve their own purposes. [They also do the same with the promoting the use of hemp for agricultureÖ]
Regardless of how one feels about the prospect of legal recreational drug use it is <b>completely</b> different from medical/research use! Arguments opposed and in support should focus solely on the issue at hand, in my opinion, so as to not cloud the debate.
[Frankly, though, I donÃÂt understand how there <i>could</i> be a debate about medicinal marijuana if it is used in treatments in which it has been proven successfulóthe same situation currently applies to amphetamines, opiates and steroids! I would also heartily disagree with any proposal to limit research on additional uses of cannabinoids, eitherÖ]
June 7th, 2005 at 2:56:32 am
Joe, saying that the law doesn’t strike down medical marijuana laws is like saying that Roe v. Wade doesn’t prevent states from banning abortion. Fact is, the political climate is such that I could honestly see the feds enforcing this decision. Alberto Gonzalez doesn’t strike me as the most libertarian type.
For those saying that marijuana doesn’t have medical benefits, you are clearly mistaken. When people smoke marijuana, they inhale more than 60 chemicals, some of which are beneficial and some of which clearly aren’t. Medical research will allow us to eventually separate the good from the bad. But in the meantime, it makes logical sense to allow terminally ill people to exploit the health benefits of pot before the detriments make medicinal use nonsensical.
Anyway, federal harassment and enforcement of drug policy spawned this case in the first place, as these two old ladies were pissed that the feds were bothering them.
June 7th, 2005 at 3:28:31 am
Becky, there aren’t enough Feds to enforce these kinds of things on a massive scale, they would need a bigger fire to attract their attention or stumble upon the issue accidentally.
Federal law has primacy over state law, that is undisputed. The real question is then, Does the state have the right to regulate marijuana? Ban it completely? This Court’s answer was yes, the federal government has the right to enact laws concerning the growth and consumption of cannabis.
My questions for those who opposed the Court’s ruling today and believe it is Constitutional for individuals to grow and consume their own cannabis if they so choose, or think these laws should be left to the states:
1. If the FDA bans Vioxx but Californians want to keep using it, would Californians be disallowed from buying and selling Vioxx within state boundaries? Would the FDA’s jurisdiction no longer apply so long as Vioxx was not transported across state lines?
2. Does the federal government have the right to enact legislation prohibiting one from buying pseudophedrine and other legal chemicals, and baking methamphetamines for home/private use?
I think it’s easy to oppose the Court’s decision here when the discussion is about cannabis, but let’s think through the implications. How much federal law would be struck down as a result of this ruling? How much law would all fifty states then be forced to pass in order to backfill a host of drug “crimes” that are suddenly legal?
The unpopular, but correct, position may just be that many of these laws regarding drugs and use are unconstitutional insofar as they do not involve interstate commerce, and that we’d be faced with having either 50 different drug policies and/or needing to amend the Constitution.
I’d like to hear other people’s takes on my questions and comments.
June 7th, 2005 at 3:30:41 am
Becky, sorry, but my dad is correct and you are flat wrong. The court merely said that federal drug laws are constitutional, and that those laws trump state medical marijuana laws (under the Supremacy Clause). It did NOT say that marijuana use itself is unconstitutional, nor that state laws allowing such use are inherently unconstitutional. They’re only banned to the extent that they conflict with federal drug laws. If Congress were to repeal the relevant federal drug laws, then state medical marijuana laws would be fine and dandy, no constitutional problem. Therefore your statement “SCOTUS has ruled that the individual use of medical marijuana is unconstitutional” is clearly incorrect, and your elaboration “saying that the law doesn’t strike down medical marijuana laws is like saying that Roe v. Wade doesn’t prevent states from banning abortion” is equally incorrect. In the case of abortion, there is absolutely nothing that Congress can do to overturn the court’s ruling, because SCOTUS <i>did</i> in fact say that any laws banning abortion, state or federal, are unconstitutional. Here, only state laws that conflict with contrary federal laws have been “struck down,” and only so long as the conflict remains. Congress can snap its fingers and legalize marijuana use any time it wants to. It CANNNOT snap its fingers and make abortion illegal, nor allow states to do so.
June 7th, 2005 at 3:51:19 am
Wow, everyone (minus Brendan) seems to be missing the boat on this one.
Now admittedly, my run-through of the opinion was pretty quick–but the opinion doesn’t (at least through my first glance) forbid the medical use of pot. It DOES NOT stand for the proposition that federal agents can burst into the home of a Californian person and stop that person from using pot for medicinal purposes. And it won’t result in such.
The case stands for a simple (albeit seemingly strange) proposition: Pursuant to the interstate commerce clause of Section 8 Article I of the Constitution, Congress CAN regulate the NON-commercial, INTRAstate PRODUCTION of cannabis. This case is not about USING pot, it’s about GROWING pot. Stevens’ opinion is quite clear that the Court accepts the medicinal quality of pot.
And yes, at first glance it seems very strange that the INTERstate COMMERCE clause could justify federal regulation in this case. As Professor Kelly taught us in class: “The interstate commerce clause allows Congress to regulate activity that is not interstate and is not commercial.”
That’s Wickard v. Filburn, and it is a foundational case in our interstate commerce jurisprudence. (And yes, Brendan is right that the conservatives in class hated the Wickard decision at first–many still do. But Professor Kelly, who is George W. Bush’s current Deputy Counsel, thinks it’s spot on–and he’s certainly a conservative)
Congress has the ability to regulate activity that will substantially affect interstate commerce (NLRB v. Jones), even if that activity in and of itself is not commercial and not interstate (Wickard). Congress passed the Act in question here in order to regulate the interstate price of various illicit drugs, including pot. Drug trafficking is an ACTIVITY, it is INTERSTATE, and it is COMMERCIAL. The price of drugs is dependant upon the quantity of production. A state law condoning personal production of an illicit drug has the potential of affecting the interstate price of drugs, and thus has the potential of affecting drug trafficking–which is an insterstate activity that Congress can regulate
Now, perhaps individuals growing pot in their homes for medicinal use is very negligible, and thus the production won’t have much of an affect on the price. That may well be–but that’s Congress’ call to make. If the State of California doesn’t like it: tough cookies–the federal legislature is superior to the California legislature. And the Court must show deference to Congress when faced with such policy questions. Otherwise, the Court will step vicariously over the line into judicial legislation.
Becky, you’re right: Congress can only pass laws that are constitutional. But arguing that this law is unconstitutional is a hard case to make in light of Wickard v. Filburn. And if you overturn Wickard v. Filburn…well, you’ve got a judicial and political shit-storm on your hands, because it will quintessentially alter the power of the Federal Government in ways that libertarians would love and liberals would hate. Our federal regulations would be turned on their heads. There’s a reason we have stare decisis…or at least that’s what you pro-choicers keep telling me
June 7th, 2005 at 3:55:35 am
well, no…Congress can pass any damn law it well pleases I suppose. But only those laws that pass constitutional muster can be executed
June 7th, 2005 at 4:51:52 am
Beef,
I hated Wickard v. Fillburn, but I agree with you. Overturning it would be a nightmare for courts.
Becky,
I’m not even touching your abortion and “improve health” statement. I don’t need to reopen that can of worms.
June 7th, 2005 at 11:08:42 am
I find myself getting tripped up over the definition of commerce here. I mean, what kind of interest does the gov’t have in preventing individuals from growing pot in their basements? It seems odd to try to regulate the commerce of a substance that isn’t supposed to be commercial in the first place. Know what I mean?
Someone more informed than I am could probably draw some interesting parallels between this case and the Native American peyote case that was decided a few years ago. However, I’m still sleepy and the dog is whining.
June 7th, 2005 at 12:34:00 pm
Wow, everyone (minus Brendan) seems to be missing the boat on this one.
Really, beef? Even me?
Here’s what I wrote above:
1. If the FDA bans Vioxx but Californians want to keep using it, would Californians be disallowed from buying and selling Vioxx within state boundaries? Would the FDA’s jurisdiction no longer apply so long as Vioxx was not transported across state lines?
2. Does the federal government have the right to enact legislation prohibiting one from buying pseudophedrine and other legal chemicals, and baking methamphetamines for home/private use?
I think it’s easy to oppose the Court’s decision here when the discussion is about cannabis, but let’s think through the implications. How much federal law would be struck down as a result of this ruling? How much law would all fifty states then be forced to pass in order to backfill a host of drug “crimes” that are suddenly legal?
The unpopular, but correct, position may just be that many of these laws regarding drugs and use are unconstitutional insofar as they do not involve interstate commerce, and that we’d be faced with having either 50 different drug policies and/or needing to amend the Constitution.
Here’s what was written below by you and Patrick:
The case stands for a simple (albeit seemingly strange) proposition: Pursuant to the interstate commerce clause of Section 8 Article I of the Constitution, Congress CAN regulate the NON-commercial, INTRAstate PRODUCTION of cannabis. This case is not about USING pot, it’s about GROWING pot. Stevens’ opinion is quite clear that the Court accepts the medicinal quality of pot.
And yes, at first glance it seems very strange that the INTERstate COMMERCE clause could justify federal regulation in this case. As Professor Kelly taught us in class: “The interstate commerce clause allows Congress to regulate activity that is not interstate and is not commercial.” …
Congress has the ability to regulate activity that will substantially affect interstate commerce (NLRB v. Jones), even if that activity in and of itself is not commercial and not interstate (Wickard). Congress passed the Act in question here in order to regulate the interstate price of various illicit drugs, including pot. Drug trafficking is an ACTIVITY, it is INTERSTATE, and it is COMMERCIAL. The price of drugs is dependant upon the quantity of production. A state law condoning personal production of an illicit drug has the potential of affecting the interstate price of drugs, and thus has the potential of affecting drug trafficking–which is an insterstate activity that Congress can regulate …
And if you overturn Wickard v. Filburn…well, you’ve got a judicial and political shit-storm on your hands, because it will quintessentially alter the power of the Federal Government in ways that libertarians would love and liberals would hate. Our federal regulations would be turned on their heads. …
I hated Wickard v. Fillburn, but I agree with you. Overturning it would be a nightmare for courts.
Sounds to me like we’re all on the same page, essentially.
Incidentally, the validity of Wickard seems to be a dividing line among conservative federalists. Thomas clearly rejects that precedent, but the other conservative SCOTUS jurists do not. Yet even though Rehnquist seems to accept Wickard, he still ends up in the minority camp on this one.
June 7th, 2005 at 12:46:26 pm
Congress can regulate the prices of illegal drugs? And home-growing pot for medical use has the same effect as growing wheat for home consumption?
I think that analogy misses the point. There are no quotas on how much marijuana gets produced. There are no taxes on it. If anything, regulating the trafficking of illegal drugs is part of the states’ police power.
June 7th, 2005 at 12:50:53 pm
It seems odd to try to regulate the commerce of a substance that isn’t supposed to be commercial in the first place.
As I mentioned in person, Becky, it’s a self-defeating argument to say, “Pot is illegal, therefore it’s not really ‘commerce,’ therefore the federal government can’t regulate it, so the California law should be upheld” … in other words, “Pot is illegal, so it should be legal!” :)
Anyway, there is nothing odd at all about federal regulation of illegal commerce. The constitution says “commerce among the several states,” it doesn’t make any exception for illegal commerce … and Mirriam-Webster defines “commerce” as “the exchange or buying and selling of commodities on a large scale involving transportation from place to place.” Again, there is no mention of any requirement that the “commodities” be legal. It’s still commerce regardless.
Anyway, imagine the alternative: if your notion that the government cannot regulate illegal interstate commerce were accepted, you’d have a classic Catch-22: as soon as the feds passed a law banning a certain type of interstate commerce, that commerce would by definition become illegal. So now the government doesn’t have the power to enforce the law it just passed, because according to you, illegal commerce doesn’t count! But if the law were repealed, the government would have the power to pass it again… until it actually did pass it again, and then it would become unenforceable again. Hee hee.
June 7th, 2005 at 12:57:08 pm
Anonymous, you seem to be going down the same road as Becky.
There are no quotas on how much marijuana gets produced.
The Constitution doesn’t say that Congress has the power to regulate “commerce among the several states, provided there are quotas on how much of the commercial product in question gets produced.”
There are no taxes on it.
The Constitution doesn’t say that Congress has the power to regulate “commerce among the several states, provided the commercial product in question is taxed.”
Sorry, but these are not really arguments.
Just because the marijuana trade is illicit, doesn’t mean it’s not commerce. Have you ever heard of a “black market”? There’s a reason they use the term “market” — because it’s a market. IT’S COMMERCE!
Are you really saying that Congress has no power to regulate interstate “black markets”? Well guess what, that means no one has the power to regulate them, because states can only regulate within their own borders, and interstate black markets are by definition crossing state borders. This is the whole reason we have a federal government! Your and Becky’s notion of the federal government as powerless to regulate illicit interstate markets would send us back to the Articles of Confederation days, when there was no effective remedy for genuine interstate problems that required a national solution.
Urgh. I know you don’t like the consequences of this particular decision, but this is crap logic. If you want to distinguish the marijuana case from Wickard, you need to find a better “hook.”
June 7th, 2005 at 1:22:32 pm
I’m not saying that the transporting of marijuana across state lines is not commerce. I’m saying that growing it at home for home use is not commerce. There is a difference between the aggregate effects of growing wheat for home consumption when quotas have been placed on how much there is to be produced, and the effects of home-grown marijuana when the production of marijuana isn’t regulated by congress. (My tax point wasn’t to look for a “hook,” it was to refute thebeef’s assertion that congress regulates the price of marijuana). If anything, growing marijuana at home for medical purposes decreases the demand for illegal drugs and prevents those drugs from crossing state lines.
June 7th, 2005 at 1:23:36 pm
and that’s right, nobody regulates black markets. That’s precisely what makes them black markets.
June 7th, 2005 at 2:13:28 pm
Brendan, well said.
Anonymous, you seem pretty dense. The very term “regulate” means the ability to decide the legality of various aspects of an issue. Thus, Congress can decide that fishing for bottlenose dolphins is illegal, or that only a limited number can be caught. Either way, it’s a regulation.
June 7th, 2005 at 2:19:21 pm
I’m saying that growing it at home for home use is not commerce.
That’s the argument made in this case, but that argument lost.
There is a difference between the aggregate effects of growing wheat for home consumption when quotas have been placed on how much there is to be produced, and the effects of home-grown marijuana when the production of marijuana isn’t regulated by congress.
The Court’s argument was that the growth of marijuana legally in one state has an indirect impact on interstate commerce. See thebeef’s comment above:
Congress has the ability to regulate activity that will substantially affect interstate commerce (NLRB v. Jones), even if that activity in and of itself is not commercial and not interstate (Wickard). Congress passed the Act in question here in order to regulate the interstate price of various illicit drugs, including pot. Drug trafficking is an ACTIVITY, it is INTERSTATE, and it is COMMERCIAL. The price of drugs is dependant upon the quantity of production. A state law condoning personal production of an illicit drug has the potential of affecting the interstate price of drugs, and thus has the potential of affecting drug trafficking–which is an insterstate activity that Congress can regulate …
Do you get it yet?
If anything, growing marijuana at home for medical purposes decreases the demand for illegal drugs and prevents those drugs from crossing state lines.
That’s pure speculation, and absent proof to back up that assertion, I’m disinclined to believe you because it goes against intuition.
June 7th, 2005 at 2:32:52 pm
I’m not dense, Andrew, I simply disagree with you. There’a a difference.
I understand that my argument is the argument that lost and the argument made in the dissenting opinions. The fact that this argument lost does not mean that the decision was correct.
The states have the police power to maintain the public health and well being. Of course congress has the power to regulate interstate commerce and this regulation extends to contraband. (The black market is stuff that should be regulated, but isn’t.) In this particular application of the Act, the state’s power is being infringed upon. The state is already regulating the production and use of medicinal marijuana, and unlike wheat in Wickard, there are no effects on interstate marijuana commerce by Raich growing it at home.
June 7th, 2005 at 2:41:46 pm
Here’s a question for you: how does congress regulate the prices of illegal drugs, aside from making them illegal in the first place? Do they strictly enforce maximim prices and production quotas on the dealers?
June 7th, 2005 at 2:42:13 pm
What Supreme Court decision was it that allowed the federal government to come in a trump over some discriminatory state laws somewhere in the south, involving some hotel? They used interstate commerce as their logic too, if I recall correctly (my constitutional law class is a vague memory so excuse me and help me future lawyers). That same logic of growing pot for medical uses affects interstate commerce, which might sound a little weird to those unfamiliar with constitutional law, is not unheard of.
June 7th, 2005 at 3:27:14 pm
Anonymous - “growing wheat for home consumption when quotas have been placed on how much there is to be produced,” - there are *quotas* on how much wheat I can grow for consumption in my home ??? WOW !
Andrew - “If anything, growing marijuana at home for medical purposes decreases the demand for illegal drugs and prevents those drugs from crossing state lines.
” - this one makes sense to me on the following simple basis … if a person can grow their own MJ in their own garden, that amount becomes an amount that no longer needs to be purchased “illegally”, and that has to represent a decrease in demand for said illegal drug …
I’m one of the few on the planet who was willing to give Prez Clinton the benefit of the doubt when he said he “didn’t inhale” - cuz the one time it was offered to me, LONG ago, I didn’t have a clue what I was doing and I didn’t inhale … and never developed a taste for it … haven’t tried it since …
Now, if it was legal to grow one’s own, I would - not for smoking - but because it’s a very attractive drought-tolerant foliage weed … and that appeals to the Scot that I am, living in Southern California …
Oh - and I would submit to the assembled intellectual minds that a black market *is*, by definition, regulated - by that market’s own market forces … it’s just not *directly* regulated by governmental regulations …
June 7th, 2005 at 3:31:32 pm
The state is already regulating the production and use of medicinal marijuana, and unlike wheat in Wickard, there are no effects on interstate marijuana commerce by Raich growing it at home.
That seems pretty implausible to me. Surely there is some effect, even if you think it is quite minimal, and under Wickard and the subsequent line of cases, it is generally for Congress to decide which effects are worth regulating and which are not. As long as one can make a halfway plausible case that there is a decently substantial effect on interstate commerce, the court will defer to Congress.
June 7th, 2005 at 4:08:42 pm
I find myself getting tripped up over the definition of commerce here. I mean, what kind of interest does the gov’t have in preventing individuals from growing pot in their basements? It seems odd to try to regulate the commerce of a substance that isn’t supposed to be commercial in the first place. Know what I mean?
Someone more informed than I am could probably draw some interesting parallels between this case and the Native American peyote case that was decided a few years ago. However, I’m still sleepy and the dog is whining.
June 7th, 2005 at 4:17:42 pm
Well, they would have up until Morrison and Lopez, and now it seems like they’re returned to such deference to congress, at least with respect to pot.
June 7th, 2005 at 4:56:29 pm
I think the pot case is a helluva lot closer to the facts and issues of Wickard than to either Morrison or Lopez (neither of which overturned Wickard, after all).
June 7th, 2005 at 5:00:48 pm
I’m not dense, Andrew, I simply disagree with you. There’a a difference.
No Anonymous, you’re not getting it. Look, your opinion is valid, SCOTUS may very well be interpreting the Commerce Clause wrong (I have yet to decide whether I agree more with Thomas, Scalia, or Stevens on this issue; instinctually I prefer Thomas’ position, but I acknowledge that his position would in effect involve overturning Wickard, which would lead to all sorts of regulatory anarchy beyond simply the FDA and drugs, and I’m not a big fan of regulatory anarchy).
What is at issue here is your apparent inability to understand the very basics of how law and regulation work, as evidenced again in your later comment:
Here’s a question for you: how does congress regulate the prices of illegal drugs, aside from making them illegal in the first place? Do they strictly enforce maximim prices and production quotas on the dealers?
Congress passed legislation that created the Food and Drug Administration, which in turn is given the responsibility of regulating (wait for it) food and drugs. Drugs are broken up into certain classes, some of which (like marijuana and cocaine) are completely banned, others of which are controlled by mandating prescription and/or other dissemination controls (e.g., I’m pretty sure drug stores are disallowed from selling more than a certain dollar amount of pseudophedrine products to one customer at a time, or at least report that information, in order to help control the production of methamphetamines). Nothing in the Commerce Clause requires or restricts congressional regulation of drugs or any other interstate commerce to merely quotas and prices. The argument from Wickard on down is that, if there exists an interstate market for a product, Congress can regulate even non-commercial, intra-state production because that affects interstate commerce. What part of that argument is so difficult for you to comprehend? I repeat: The very term “regulate” means the ability to decide the legality of various aspects of an issue.
In any case, this is not a separation of powers issue where the Court is deferring to Congress, it’s a federalism issue, in which case the Court is deciding that Congress has the overriding authority, not the states.
June 7th, 2005 at 5:34:00 pm
<i>Wow, everyone (minus Brendan) seems to be missing the boat on this one.</i>
Really, beef? Even me?
Here’s what I wrote above:
<I>1. If the FDA bans Vioxx but Californians want to keep using it, would Californians be disallowed from buying and selling Vioxx within state boundaries? Would the FDA’s jurisdiction no longer apply so long as Vioxx was not transported across state lines?
2. Does the federal government have the right to enact legislation prohibiting one from buying pseudophedrine and other legal chemicals, and baking methamphetamines for home/private use?
I think it’s easy to oppose the Court’s decision here when the discussion is about cannabis, but let’s think through the implications. How much federal law would be struck down as a result of this ruling? How much law would all fifty states then be forced to pass in order to backfill a host of drug “crimes” that are suddenly legal?
The unpopular, but correct, position may just be that many of these laws regarding drugs and use are unconstitutional insofar as they do not involve interstate commerce, and that we’d be faced with having either 50 different drug policies and/or needing to amend the Constitution.</i>
Here’s what was written below by you and Patrick:
<I>The case stands for a simple (albeit seemingly strange) proposition: Pursuant to the interstate commerce clause of Section 8 Article I of the Constitution, Congress CAN regulate the NON-commercial, INTRAstate PRODUCTION of cannabis. This case is not about USING pot, it’s about GROWING pot. Stevens’ opinion is quite clear that the Court accepts the medicinal quality of pot.
And yes, at first glance it seems very strange that the INTERstate COMMERCE clause could justify federal regulation in this case. As Professor Kelly taught us in class: “The interstate commerce clause allows Congress to regulate activity that is not interstate and is not commercial.” …
Congress has the ability to regulate activity that will substantially affect interstate commerce (NLRB v. Jones), even if that activity in and of itself is not commercial and not interstate (Wickard). Congress passed the Act in question here in order to regulate the interstate price of various illicit drugs, including pot. Drug trafficking is an ACTIVITY, it is INTERSTATE, and it is COMMERCIAL. The price of drugs is dependant upon the quantity of production. A state law condoning personal production of an illicit drug has the potential of affecting the interstate price of drugs, and thus has the potential of affecting drug trafficking–which is an insterstate activity that Congress can regulate …
And if you overturn Wickard v. Filburn…well, you’ve got a judicial and political shit-storm on your hands, because it will quintessentially alter the power of the Federal Government in ways that libertarians would love and liberals would hate. Our federal regulations would be turned on their heads. …
I hated Wickard v. Fillburn, but I agree with you. Overturning it would be a nightmare for courts.</i>
Sounds to me like we’re all on the same page, essentially.
Incidentally, the validity of <i>Wickard</i> seems to be a dividing line among conservative federalists. Thomas clearly rejects that precedent, but the other conservative SCOTUS jurists do not. Yet even though Rehnquist seems to accept Wickard, he still ends up in the minority camp on this one.
June 7th, 2005 at 5:46:26 pm
Congress can regulate the prices of illegal drugs? And home-growing pot for medical use has the same effect as growing wheat for home consumption?
I think that analogy misses the point. There are no quotas on how much marijuana gets produced. There are no taxes on it. If anything, regulating the trafficking of illegal drugs is part of the states’ police power.
June 7th, 2005 at 5:47:24 pm
Congress has the authority to regulate — “To control or direct according to rule, principle, or law” — interstate commerce under the commerce clause. Interstate commerce is not equal to drug consumption. “Regulating the illegality” of something — like handguns near schools — is part of teh police power.
The FDA does not regulate drugs of abuse - i.e. illegal drugs. The DEA does. The DEA is an enforcement agency, not a regulatory agency.
June 7th, 2005 at 5:50:53 pm
<i>It seems odd to try to regulate the commerce of a substance that isn’t supposed to be commercial in the first place.</i>
As I mentioned in person, Becky, it’s a self-defeating argument to say, “Pot is illegal, therefore it’s not really ‘commerce,’ therefore the federal government can’t regulate it, so the California law should be upheld” … in other words, “Pot is illegal, so it should be legal!” :)
Anyway, there is nothing odd at all about federal regulation of illegal commerce. The constitution says “commerce among the several states,” it doesn’t make any exception for illegal commerce … and <a href=”http://www.webster.com/cgi-bin/dictionary?sourceid=Mozilla-search&va=commerce”>Mirriam-Webster</a> defines “commerce” as “the exchange or buying and selling of commodities on a large scale involving transportation from place to place.” Again, there is no mention of any requirement that the “commodities” be legal. It’s still commerce regardless.
Anyway, imagine the alternative: if your notion that the government cannot regulate <i>illegal</i> interstate commerce were accepted, you’d have a classic Catch-22: as soon as the feds passed a law banning a certain type of interstate commerce, that commerce would by definition become illegal. So now the government doesn’t have the power to enforce the law it just passed, because according to you, illegal commerce doesn’t count! But if the law were repealed, the government would have the power to pass it again… until it actually did pass it again, and then it would become unenforceable again. Hee hee.
June 7th, 2005 at 5:57:08 pm
Anonymous, you seem to be going down the same road as Becky.
<i>There are no quotas on how much marijuana gets produced.</i>
The Constitution doesn’t say that Congress has the power to regulate “commerce among the several states, provided there are quotas on how much of the commercial product in question gets produced.”
<i>There are no taxes on it.</i>
The Constitution doesn’t say that Congress has the power to regulate “commerce among the several states, provided the commercial product in question is taxed.”
Sorry, but these are not really arguments.
Just because the marijuana trade is illicit, doesn’t mean it’s not commerce. Have you ever heard of a “black market”? There’s a reason they use the term “market” — <i>because it’s a market</i>. IT’S COMMERCE!
Are you really saying that Congress has no power to regulate interstate “black markets”? Well guess what, that means <i>no one</i> has the power to regulate them, because states can only regulate within their own borders, and interstate black markets are by definition crossing state borders. <i>This is the whole reason we have a federal government!</i> Your and Becky’s notion of the federal government as powerless to regulate illicit interstate markets would send us back to the Articles of Confederation days, when there was no effective remedy for genuine interstate problems that required a national solution.
Urgh. I know you don’t like the consequences of this particular decision, but this is crap logic. If you want to distinguish the marijuana case from <i>Wickard</i>, you need to find a better “hook.”
June 7th, 2005 at 6:22:32 pm
I’m not saying that the transporting of marijuana across state lines is not commerce. I’m saying that growing it at home for home use is not commerce. There is a difference between the aggregate effects of growing wheat for home consumption when quotas have been placed on how much there is to be produced, and the effects of home-grown marijuana when the production of marijuana isn’t regulated by congress. (My tax point wasn’t to look for a “hook,” it was to refute thebeef’s assertion that congress regulates the price of marijuana). If anything, growing marijuana at home for medical purposes decreases the demand for illegal drugs and prevents those drugs from crossing state lines.
June 7th, 2005 at 6:23:36 pm
and that’s right, nobody regulates black markets. That’s precisely what makes them black markets.
June 7th, 2005 at 7:13:28 pm
Brendan, well said.
Anonymous, you seem pretty dense. The very term “regulate” <i>means</i> the ability to decide the legality of various aspects of an issue. Thus, Congress can decide that fishing for bottlenose dolphins is illegal, or that only a limited number can be caught. Either way, it’s a <i>regulation</i>.
June 7th, 2005 at 7:17:18 pm
Alright Anonymous, and if you are illegally dispensing prescriptions for morphine and codeine, both drugs approved and regulated by the FDA, who arrests you? If the FDA says Vioxx is no longer safe and prohibits it from being sold, who cracks down on the drug store owner that illegally obtains and continues making it available? The DEA and FDA separation is not relevant here. What’s relevant is, a whole host of substances are prohibited by Congress because of their effects. The FDA doesn’t need to regulate medical marijuana because the substance itself is banned. But implicit in the authority to regulate is the authority to ban outright. It’s not a difficult concept to grasp.
Guns are a separate issue because they fall under the protection of the Second Amendment.
Let me ask you this, though: If the Commerce Clause doesn’t allow Congress to prohibit the growth and consumption of marijuana, only to regulate (and not ban) its commerce across state lines, what would allow Congress the authority to ban making plastic explosives and car bombs? “But I just want to blow up stuff in the desert, I won’t be hurting anybody!” By that logic, it would seem the states would have to backfill a whole bunch of federal law that would immediately become invalidated by such a ruling, hence there’d be regulatory anarchy.
June 7th, 2005 at 7:19:21 pm
<i>I’m saying that growing it at home for home use is not commerce.</i>
That’s the argument made in this case, but that argument lost.
<i>There is a difference between the aggregate effects of growing wheat for home consumption when quotas have been placed on how much there is to be produced, and the effects of home-grown marijuana when the production of marijuana isn’t regulated by congress.</i>
The Court’s argument was that the growth of marijuana legally in one state has an indirect impact on interstate commerce. See thebeef’s comment above:
<i>Congress has the ability to regulate activity that will substantially affect interstate commerce (NLRB v. Jones), even if that activity in and of itself is not commercial and not interstate (Wickard). Congress passed the Act in question here in order to regulate the interstate price of various illicit drugs, including pot. Drug trafficking is an ACTIVITY, it is INTERSTATE, and it is COMMERCIAL. The price of drugs is dependant upon the quantity of production. A state law condoning personal production of an illicit drug has the potential of affecting the interstate price of drugs, and thus has the potential of affecting drug trafficking–which is an insterstate activity that Congress can regulate …</I>
Do you get it yet?
<i>If anything, growing marijuana at home for medical purposes decreases the demand for illegal drugs and prevents those drugs from crossing state lines.</i>
That’s pure speculation, and absent proof to back up that assertion, I’m disinclined to believe you because it goes against intuition.
June 7th, 2005 at 7:32:52 pm
I’m not dense, Andrew, I simply disagree with you. There’a a difference.
I understand that my argument is the argument that lost and the argument made in the dissenting opinions. The fact that this argument lost does not mean that the decision was correct.
The states have the police power to maintain the public health and well being. Of course congress has the power to regulate interstate commerce and this regulation extends to contraband. (The black market is stuff that <i>should</i> be regulated, but isn’t.) In this particular application of the Act, the state’s power is being infringed upon. The state is already regulating the production and use of medicinal marijuana, and unlike wheat in Wickard, there are no effects on interstate marijuana commerce by Raich growing it at home.
June 7th, 2005 at 7:34:27 pm
“I’m not dense, Andrew, I simply disagree with you. There’a a difference.“
Oh, Anonymous, I was Remiss and I am so Sorry. Here I meant to Warn you Off of that particular Slippery-distinction Minefield :), but I forgot. Now it’s too late, “No Anonymous, you’re not getting it…” BOOM!!! goes the Claymore and suddenly your argument’s got no Legs, please forgive me. :) But hey it could be worse, you did get an anesthetic shot for the Pain: “Look, your opinion is valid, SCOTUS may very well be interpreting the Commerce Clause wrong…” :) (Hi Andrew. Humanely done. :)
“Joe, saying that the law doesn’t strike down medical marijuana laws is like saying that Roe v. Wade doesn’t prevent states from banning abortion.”
Becky, yer Betrothed gave the Legal analysis which is Beyond me thanks be ter Gawd :) but I’d just add: (1) actually I didn’t Say it on me own Say-so, I merely Quoted (well and yeah, also Parroted) (Arrr! Pieces of Eight! :) the author of that Article who had Reported it ~ perhaps Debatably ~ as Fact. (2) As Brendan indicated but did not quite Specify, I think it’s accurate to say ~ everybody correct me if wrong ~ that in Roe v. Wade the Court again penetrated the Penumbra with its Light of Enlightenment :) and revealed, lurking therein, an individual Constitutional Right to Terminate one’s Pregnancy. This indeed struck down all state laws contravening that Right, i.e., banning or Unduly burdening its exercise. / Whereas in this recent decision the Court found no new Constitutional right ~ nor, I infer (again correct if wrong), was it Petitioned to Look for one, i.e., to flush from the underbrush Alasdair’s inalienable Right to cultivate Hemp in the Hielands o’ California (high Alasdair, wot will the braw Islay distillers think, I’ve heard of Pot Stills but yer goin’ beyond th’ Beyonds here laddie & th’ Deil’s awa’ wi’ th’ Exciseman but nevermind aboot that now :). It seems that the issue was one of constitutional Powers (state vs. federal) rather than Rights; and finding for the Feds, the High Court :) held that the existence of the permissive California statute does not preclude Enforcement of the prohibitive Congressional act, it being found a lawful exercise of federal legislative power. Therefore ~ well ~ What Brendan Said. ;>
“What Supreme Court decision was it that allowed the federal government to come in a trump over some discriminatory state laws somewhere in the south, involving some hotel? They used interstate commerce as their logic too, if I recall correctly…”
Don’t know case citations, Bea, but my Guess is, the decision upholding the Public Accomodations section of the Civil Rights Act of 1964. Applied to various types of businesses including Lodgings & Restaurants I believe. JFK could never get it passed, what with his political Caution and the Southerners’ Filibuster (cloture took 67 votes back in Them days, kids) but following Jack’s martyrdom & the ensuing Johnson Landslide sweeping all before it, good ol’ LBJ rammed it right through. And yup, you Recall the Logic correctly…(and Yup, here I Go again for about the 4th time here with this one :)…
News Conference Number 58
July 17, 1963
QUESTION: Mr. President, do you think that Mrs. Murphy should have to take into her home a lodger whom she does not want, regardless of her reason, or would you accept a change in the civil rights bill to except small boardinghouses like Mrs. Murphy?
PRESIDENT KENNEDY: The question would be, it seems to me, Mrs. Craig, whether Mrs. Murphy had a substantial impact on interstate commerce.
:)
June 7th, 2005 at 7:34:31 pm
I’m pretty certain that Federal law limits who can use explosives, but not what types of explosives. Anyway, that’s beside the point.
Congress can certainly ban the travel of illegal drugs across state lines. This issue in this case is whether purely intrastate, noncommercial use of the drug can be subject to legislation by congress under the commerce clause and I continue to stand by my position that it would be unconstitutional to do so.
June 7th, 2005 at 7:41:46 pm
Here’s a question for you: how does congress regulate the prices of illegal drugs, aside from making them illegal in the first place? Do they strictly enforce maximim prices and production quotas on the dealers?
June 7th, 2005 at 7:42:13 pm
What Supreme Court decision was it that allowed the federal government to come in a trump over some discriminatory state laws somewhere in the south, involving some hotel? They used interstate commerce as their logic too, if I recall correctly (my constitutional law class is a vague memory so excuse me and help me future lawyers). That same logic of growing pot for medical uses affects interstate commerce, which might sound a little weird to those unfamiliar with constitutional law, is not unheard of.
June 7th, 2005 at 7:49:09 pm
And I continue to stand by my position that there is no legally significant difference between 1) purely intrastate, noncommercial use of food which, in the aggregate, could substantially interfere with Congress’s regulatory scheme regarding the interstate commerce in food, and 2) purely intrastate, noncommercial use of drugs which, in the aggregate, could substantially interfere with Congress’s regulatory scheme regarding the interstate commerce in drugs.
June 7th, 2005 at 8:27:14 pm
Anonymous - “growing wheat for home consumption when quotas have been placed on how much there is to be produced,” - there are *quotas* on how much wheat I can grow for consumption in my home ??? WOW !
Andrew - “If anything, growing marijuana at home for medical purposes decreases the demand for illegal drugs and prevents those drugs from crossing state lines.
” - this one makes sense to me on the following simple basis … if a person can grow their own MJ in their own garden, that amount becomes an amount that no longer needs to be purchased “illegally”, and that has to represent a decrease in demand for said illegal drug …
I’m one of the few on the planet who was willing to give Prez Clinton the benefit of the doubt when he said he “didn’t inhale” - cuz the one time it was offered to me, LONG ago, I didn’t have a clue what I was doing and I didn’t inhale … and never developed a taste for it … haven’t tried it since …
Now, if it was legal to grow one’s own, I would - not for smoking - but because it’s a very attractive drought-tolerant foliage weed … and that appeals to the Scot that I am, living in Southern California …
Oh - and I would submit to the assembled intellectual minds that a black market *is*, by definition, regulated - by that market’s own market forces … it’s just not *directly* regulated by governmental regulations …
June 7th, 2005 at 8:31:32 pm
<i>The state is already regulating the production and use of medicinal marijuana, and unlike wheat in Wickard, <b>there are no effects</b> on interstate marijuana commerce by Raich growing it at home.</i>
That seems pretty implausible to me. Surely there is <i>some</i> effect, even if you think it is quite minimal, and under <i>Wickard</i> and the subsequent line of cases, it is generally for Congress to decide which effects are worth regulating and which are not. As long as one can make a halfway plausible case that there is a decently substantial effect on interstate commerce, the court will defer to Congress.
June 7th, 2005 at 8:34:06 pm
Well Anonymous, as stated, I take no issue with your position. You and Brendan disagree, and both opinions are equally valid, depending on how one wants to interpret the Commerce Clause. The only thing that set me off was your bizarre interpretation of Congress’ ability to regulate and/or outlaw drugs, which is utterly ridiculous. Congress can outlaw wheat if it wants to. It might be dumb, but there’s no reason it can’t. The real question is, would a federal law outlawing the growth or consumption of wheat prohibit farmers from growing wheat for their own intra-state consumption if their states allowed it? It sounds like this Court says yes, but perhaps their position leaves some wiggle room, and if so, it’s a shame for your sake that medical marijuana couldn’t fit in it. Clarence Thomas and the anti-Wickard crowd say no, and maybe that’s the simpler, better position, but most likely moving to that interpretation would be extremely messy.
June 7th, 2005 at 8:35:45 pm
UPDATE: New York Times, June 7; excerpt ~
Though some advocates worried that the ruling might embolden opponents of medical marijuana, as a practical matter, there are very few federal prosecutions of medical marijuana users nationwide.
An unpublished survey this year by the Drug Policy Alliance, a group that advocates the legalization of medical marijuana, found that there were fewer than 20 federal prosecutions of medical marijuana users or growers since 1996, when California passed the first medical marijuana law, said Daniel N. Abrahamson, the group’s director of legal affairs in Oakland.
All but a handful of the prosecutions, Mr. Abrahamson said, involved cases in which the users were accused of growing up to 1,000 plants or more. “They are selectively choosing big-fish cases, and are not sending a message to the average patient growing a few plants in the backyard,” Mr. Abrahamson said.
William L. Grant, a spokesman for the Drug Enforcement Administration, said that the emphasis had been to focus on “major trafficking organizations and attempt to disrupt and dismantle them from top to bottom, including their financial networks.”
Asked about the effect of the Supreme Court ruling on the federal enforcement, Mr. Grant said, “Our mission is going to remain the same.”
Read the whole thing, which also discusses the decision’s potential Chilling Effect on ill peoples’ choices ~ and on the choices to be made by states (one is CT) currently considering enactment of medical marijuana laws.
Ya know, I have to wonder ~ Dept. of If It Ain’t Broke Don’t Fix It ~ in a Potential Cost/Benefit analysis, was this lawsuit a sensible Roll of the Dice (not to say, of the Papers :) in the first place? IOW, IF the Fed ban was indeed essentially being Winked at via Benign Neglect of smalltime MedPot Ops, & IF the sick folks in the Grasstreatment-Permissive states were indeed basically getting the Weed they Need (even as their Advocates were lobbying productively for Expansion of Medicinalhempfriendly Nation) ~ was it really a Good Gamble to Go for a SCOTUS-decreed Subordination of the (selectively Unenforced) Federal Law to the Mere statutes of the pipsqueak Several States? IOOW, were the odds of Victory in that rather Bold adjudicatory expedition, sufficient to risk the Fear-factor Blowback from Defeat, which is just what is now so predictably occuring?
Hindsight, I suppose.
June 7th, 2005 at 9:07:03 pm
Ah Joe, I could have predicted that. It will be the downfall of the gay marriage proponents as well. The Roe way of doing things just won’t work anymore.
June 7th, 2005 at 9:17:42 pm
Well, they would have up until Morrison and Lopez, and now it seems like they’re returned to such deference to congress, at least with respect to pot.
June 7th, 2005 at 9:25:36 pm
Yeah Andrew, sorry…I read your earlier statements as focusing on the USE of pot as opposed to the regulation of its production. But I personally agree with everything you have said.
Brendan, bravo. Anonymous, I assume you believe that Wickard should be overturned…your position has no legal merit so long as Wickard remains on the books. And I would further assume that if you do want Wickard overturned, then you are libertarian or at least conservative leaning. If not, then I think you’re barking up the wrong tree…as a number of my liberal friends certainly are.
Joe, right on. Strategically, this was a bad case to bring before the SCOTUS…particularly considering its close analagous ties to Wickard. I don’t think it would take THAT much foresight to see that the SCOTUS would smack down this case. My guess is that these law suits have a life of their own…they go through the system, they attract the attention of certain advocates, and before you know it the case is before the SCOTUS for better or worse.
June 7th, 2005 at 9:56:29 pm
I think the pot case is a helluva lot closer to the facts and issues of <i>Wickard</i> than to either <i>Morrison</i> or <i>Lopez</i> (neither of which overturned <i>Wickard</i>, after all).
June 7th, 2005 at 10:00:48 pm
<i>I’m not dense, Andrew, I simply disagree with you. There’a a difference.</i>
No Anonymous, you’re not getting it. Look, your opinion is valid, SCOTUS may very well be interpreting the Commerce Clause wrong (I have yet to decide whether I agree more with Thomas, Scalia, or Stevens on this issue; instinctually I prefer Thomas’ position, but I acknowledge that his position would in effect involve overturning <i>Wickard</i>, which would lead to all sorts of regulatory anarchy beyond simply the FDA and drugs, and I’m not a big fan of regulatory anarchy).
What is at issue here is your apparent inability to understand the very basics of how law and regulation <i>work</i>, as evidenced <i>again</i> in your later comment:
<i>Here’s a question for you: how does congress regulate the prices of illegal drugs, aside from making them illegal in the first place? Do they strictly enforce maximim prices and production quotas on the dealers?</i>
Congress passed legislation that created the Food and Drug Administration, which in turn is given the responsibility of regulating (wait for it) food and drugs. Drugs are broken up into certain classes, some of which (like marijuana and cocaine) are completely banned, others of which are controlled by mandating prescription and/or other dissemination controls (e.g., I’m pretty sure drug stores are disallowed from selling more than a certain dollar amount of pseudophedrine products to one customer at a time, or at least report that information, in order to help control the production of methamphetamines). Nothing in the Commerce Clause requires or restricts congressional regulation of drugs or any other interstate commerce to merely quotas and prices. The argument from <i>Wickard</i> on down is that, if there exists an interstate market for a product, Congress can regulate even non-commercial, intra-state production because that affects interstate commerce. What part of that argument is so difficult for you to comprehend? I repeat: <i>The very term “regulate” means the ability to decide the legality of various aspects of an issue.</i>
In any case, this is not a separation of powers issue where the Court is deferring to Congress, it’s a federalism issue, in which case the Court is deciding that Congress has the overriding authority, not the states.
June 7th, 2005 at 10:47:24 pm
Congress has the authority to regulate — “To control or direct according to rule, principle, or law” — interstate commerce under the commerce clause. Interstate commerce is not equal to drug consumption. “Regulating the illegality” of something — like handguns near schools — is part of teh police power.
The FDA does not regulate drugs of abuse - i.e. illegal drugs. The DEA does. The DEA is an enforcement agency, not a regulatory agency.
June 8th, 2005 at 12:17:18 am
Alright Anonymous, and if you are illegally dispensing prescriptions for morphine and codeine, both drugs approved and regulated by the FDA, who arrests you? If the FDA says Vioxx is no longer safe and prohibits it from being sold, who cracks down on the drug store owner that illegally obtains and continues making it available? The DEA and FDA separation is not relevant here. What’s relevant is, a whole host of substances <a href=”http://www.dea.gov/pubs/csa/812.htm#c”>are prohibited</a> by Congress because of their effects. The FDA doesn’t <i>need</i> to regulate medical marijuana because the substance itself is banned. But implicit in the authority to regulate is the authority to ban outright. It’s not a difficult concept to grasp.
Guns are a separate issue because they fall under the protection of the Second Amendment.
Let me ask you this, though: If the Commerce Clause doesn’t allow Congress to prohibit the growth and consumption of marijuana, only to regulate (and not ban) its commerce across state lines, what would allow Congress the authority to ban making plastic explosives and car bombs? “But I just want to blow up stuff in the desert, I won’t be hurting anybody!” By that logic, it would seem the states would have to backfill a whole bunch of federal law that would immediately become invalidated by such a ruling, hence there’d be regulatory anarchy.
June 8th, 2005 at 12:34:27 am
<i>”I’m not dense, Andrew, I simply disagree with you. <b>There’a a difference.</b>”</i>
Oh, Anonymous, I was Remiss and I am so Sorry. Here I <i>meant</i> to Warn you Off of that particular Slippery-distinction Minefield :), but I <i>forgot</i>. Now it’s too late, “<i>No Anonymous, you’re not getting it…”</i> <b>BOOM!!!</b> goes the Claymore and suddenly your argument’s got no Legs, please forgive me. :) But hey it could be worse, you did get an anesthetic shot for the Pain: <i>”Look, your opinion is valid, SCOTUS may very well be interpreting the Commerce Clause wrong…”</i> :) (Hi Andrew. Humanely done. :)
<i>”Joe, saying that the law doesn’t strike down medical marijuana laws is like saying that Roe v. Wade doesn’t prevent states from banning abortion.”</i>
Becky, yer Betrothed gave the Legal analysis which is Beyond me thanks be ter Gawd :) but I’d just add: (1) actually <b>I</b> didn’t Say it on me own Say-so, I merely Quoted (well and yeah, also Parroted) (<i>Arrr! Pieces of Eight!</i> :) the author of that Article who had Reported it ~ perhaps Debatably ~ as Fact. (2) As Brendan indicated but did not quite Specify, I <i>think</i> it’s accurate to say ~ everybody correct me if wrong ~ that in Roe v. Wade the Court again penetrated the Penumbra with its Light of Enlightenment :) and revealed, lurking therein, an individual <b>Constitutional Right</b> to Terminate one’s Pregnancy. This indeed struck down all state laws contravening that Right, i.e., banning or Unduly burdening its exercise. / Whereas in this recent decision the Court found no new Constitutional right ~ nor, <i>I infer</i> (again correct if wrong), was it Petitioned to Look for one, i.e., to flush from the underbrush Alasdair’s inalienable Right to cultivate Hemp in the Hielands o’ California (<i>high Alasdair, wot will the braw Islay distillers think, I’ve heard of Pot Stills but yer goin’ beyond th’ Beyonds here laddie & th’ Deil’s awa’ wi’ th’ Exciseman but nevermind aboot that now</i> :). It seems that the issue was one of constitutional Powers (state vs. federal) rather than Rights; and finding for the Feds, the High Court :) held that <i>the existence of the permissive California statute <b>does not preclude Enforcement</b> of the prohibitive Congressional act</i>, it being found a lawful exercise of federal legislative power. Therefore ~ well ~ What Brendan Said. ;>
<i>”What Supreme Court decision was it that allowed the federal government to come in a trump over some discriminatory state laws somewhere in the south, involving some hotel? They used interstate commerce as their logic too, if I recall correctly…”</i>
Don’t know case citations, Bea, but my Guess is, the decision upholding the Public Accomodations section of the Civil Rights Act of 1964. Applied to various types of businesses including Lodgings & Restaurants I believe. JFK could never get it passed, what with his political Caution and the Southerners’ Filibuster (<i>cloture took 67 votes back in Them days, kids</i>) but following Jack’s martyrdom & the ensuing Johnson Landslide sweeping all before it, good ol’ LBJ rammed it right through. And yup, you Recall the Logic correctly…(<i>and Yup, here I Go again for about the 4th time here with this one</i> :)…
<a href=”http://www.jfklibrary.org/jfk_press_conference_630717.html”>News Conference Number 58</a>
July 17, 1963
<i>QUESTION: Mr. President, do you think that Mrs. Murphy should have to take into her home a lodger whom she does not want, regardless of her reason, or would you accept a change in the civil rights bill to except small boardinghouses like Mrs. Murphy?
PRESIDENT KENNEDY: The question would be, it seems to me, Mrs. Craig, <b>whether Mrs. Murphy had a substantial impact on interstate commerce.</b></i>
:)
June 8th, 2005 at 12:34:31 am
I’m pretty certain that Federal law limits who can use explosives, but not what types of explosives. Anyway, that’s beside the point.
Congress can certainly ban the travel of illegal drugs across state lines. This issue in this case is whether purely intrastate, noncommercial use of the drug can be subject to legislation by congress under the commerce clause and I continue to stand by my position that it would be unconstitutional to do so.
June 8th, 2005 at 12:49:09 am
And I continue to stand by my position that there is no legally significant difference between <b>1)</b> purely intrastate, noncommercial use of food which, in the aggregate, could substantially interfere with Congress’s regulatory scheme regarding the interstate commerce in food, and <b>2)</b> purely intrastate, noncommercial use of drugs which, in the aggregate, could substantially interfere with Congress’s regulatory scheme regarding the interstate commerce in drugs.
June 8th, 2005 at 1:34:06 am
Well Anonymous, as stated, I take no issue with your position. You and Brendan disagree, and both opinions are equally valid, depending on how one wants to interpret the Commerce Clause. The only thing that set me off was your bizarre interpretation of Congress’ ability to regulate and/or outlaw drugs, which is utterly ridiculous. Congress can outlaw wheat if it wants to. It might be dumb, but there’s no reason it can’t. The real question is, would a federal law outlawing the growth or consumption of wheat prohibit farmers from growing wheat for their own intra-state consumption if their states allowed it? It sounds like this Court says yes, but perhaps their position leaves some wiggle room, and if so, it’s a shame for your sake that medical marijuana couldn’t fit in it. Clarence Thomas and the anti-<i>Wickard</i> crowd say no, and maybe that’s the simpler, better position, but most likely moving to that interpretation would be extremely messy.
June 8th, 2005 at 1:35:45 am
UPDATE: <a href=”http://www.nytimes.com/2005/06/07/national/07react.html?th&emc=th”>New York Times, June 7</a>; excerpt ~
<i>Though some advocates worried that the ruling might embolden opponents of medical marijuana, as a practical matter, there are very few federal prosecutions of medical marijuana users nationwide.
An unpublished survey this year by the Drug Policy Alliance, a group that advocates the legalization of medical marijuana, found that there were fewer than 20 federal prosecutions of medical marijuana users or growers since 1996, when California passed the first medical marijuana law, said Daniel N. Abrahamson, the group’s director of legal affairs in Oakland.
All but a handful of the prosecutions, Mr. Abrahamson said, involved cases in which the users were accused of growing up to 1,000 plants or more. “They are selectively choosing big-fish cases, and are not sending a message to the average patient growing a few plants in the backyard,” Mr. Abrahamson said.
William L. Grant, a spokesman for the Drug Enforcement Administration, said that the emphasis had been to focus on “major trafficking organizations and attempt to disrupt and dismantle them from top to bottom, including their financial networks.”
Asked about the effect of the Supreme Court ruling on the federal enforcement, Mr. Grant said, “Our mission is going to remain the same.”</i>
<a href=”http://www.nytimes.com/2005/06/07/national/07react.html?th&emc=th”>Read the whole thing</a>, which also discusses the decision’s potential Chilling Effect on ill peoples’ choices ~ and on the choices to be made by states (one is CT) currently considering enactment of medical marijuana laws.
Ya know, I have to wonder ~ <i>Dept. of If It Ain’t Broke Don’t Fix It</i> ~ in a Potential Cost/Benefit analysis, was this lawsuit a sensible Roll of the Dice (<i>not to say, of the Papers</i> :) in the first place? IOW, IF the Fed ban was indeed essentially being Winked at via Benign Neglect of smalltime MedPot Ops, & IF the sick folks in the Grasstreatment-Permissive states were indeed basically getting the Weed they Need (even as their Advocates were lobbying productively for Expansion of Medicinalhempfriendly Nation) ~ was it really a Good Gamble to Go for a SCOTUS-decreed Subordination of the (selectively Unenforced) Federal Law to the Mere statutes of the pipsqueak Several States? I<b>O</b>OW, were the odds of Victory in that rather Bold adjudicatory expedition, <i>sufficient to risk the Fear-factor Blowback from Defeat</i>, which is just what is now so predictably occuring?
Hindsight, I suppose.
June 8th, 2005 at 2:07:03 am
Ah Joe, I could have predicted <i>that</i>. It will be the downfall of the gay marriage proponents as well. The <i>Roe</i> way of doing things just won’t work anymore.
June 8th, 2005 at 2:25:36 am
Yeah Andrew, sorry…I read your earlier statements as focusing on the USE of pot as opposed to the regulation of its production. But I personally agree with everything you have said.
Brendan, bravo. Anonymous, I assume you believe that Wickard should be overturned…your position has no legal merit so long as Wickard remains on the books. And I would further assume that if you do want Wickard overturned, then you are libertarian or at least conservative leaning. If not, then I think you’re barking up the wrong tree…as a number of my liberal friends certainly are.
Joe, right on. Strategically, this was a bad case to bring before the SCOTUS…particularly considering its close analagous ties to Wickard. I don’t think it would take THAT much foresight to see that the SCOTUS would smack down this case. My guess is that these law suits have a life of their own…they go through the system, they attract the attention of certain advocates, and before you know it the case is before the SCOTUS for better or worse.
June 9th, 2005 at 1:00:53 am
I think Paul Campos brings up a good points:
First, consider what a gigantic edifice of lies must be maintained for government officials to continue to classify marijuana as a Schedule I drug. A Schedule I drug must have a high potential for abuse, no recognized medical use, and no safe use under medical supervision. Marijuana does not have a high potential for abuse in comparison to substances such as alcohol and tobacco, it has a number of recognized medical uses, and it’s almost perfectly safe when used under medical supervision. These are not opinions; they are facts.
These facts are worth repeating, because it’s always worth pointing out that the federal government is telling lies to the public, and that politicians who traffic in these lies should be called to account for doing so.
Second, let us ponder for a moment the Alice in Wonderland universe in which “Congress has undertaken to extinguish the interstate market in marijuana.” Despite ferocious government repression, millions of Americans continue to use marijuana on a regular basis. The only risks such use poses for the vast majority of these people are the risks inherent in breaking laws - stupid and immoral laws that will continue to be treated with the contempt they deserve.
Even if marijuana were dangerous enough to justify criminalizing its uncontrolled use, it would still be preposterous to ban its use as a medical treatment, in a nation where endless assortments of far more dangerous drugs are prescribed by the millions every day.
In the long run, nothing undercuts respect for legal authority more than the kind of moral cowardice that allows laws of this sort to be enacted and enforced.
The gist of what he is saying is that Congress or the Executive should reclassify marijuana since it’s within their power to do so.
My question for Brendan and the legal scholars: Does SCOTUS have the authority to rule on the factual basis of federal law? IOW, can SCOTUS rule that Congress must reclassify marijuana, because the facts support potential medical benefits? This would not be a question of interpreting the Constitution, obviously, merely judging on the appropriateness of a law in regards to the facts. If federal law is based on non-facts and classifies marijuana accordingly, does SCOTUS have the power to force Congress to demolish the “gigantic edifice of lies [that] must be maintained for government officials to continue to classify marijuana as a Schedule I drug”?
June 9th, 2005 at 6:00:53 am
I think Paul Campos brings up <a href=”http://www.rockymountainnews.com/drmn/news_columnists/article/0,1299,DRMN_86_3835539,00.html”>a good points</a>:
<i>First, consider what a gigantic edifice of lies must be maintained for government officials to continue to classify marijuana as a Schedule I drug. A Schedule I drug must have a high potential for abuse, no recognized medical use, and no safe use under medical supervision. Marijuana does not have a high potential for abuse in comparison to substances such as alcohol and tobacco, it has a number of recognized medical uses, and it’s almost perfectly safe when used under medical supervision. These are not opinions; they are facts.
These facts are worth repeating, because it’s always worth pointing out that the federal government is telling lies to the public, and that politicians who traffic in these lies should be called to account for doing so.
Second, let us ponder for a moment the Alice in Wonderland universe in which “Congress has undertaken to extinguish the interstate market in marijuana.” Despite ferocious government repression, millions of Americans continue to use marijuana on a regular basis. The only risks such use poses for the vast majority of these people are the risks inherent in breaking laws - stupid and immoral laws that will continue to be treated with the contempt they deserve.
Even if marijuana were dangerous enough to justify criminalizing its uncontrolled use, it would still be preposterous to ban its use as a medical treatment, in a nation where endless assortments of far more dangerous drugs are prescribed by the millions every day.
In the long run, nothing undercuts respect for legal authority more than the kind of moral cowardice that allows laws of this sort to be enacted and enforced.</i>
The gist of what he is saying is that Congress or the Executive should reclassify marijuana since it’s within their power to do so.
My question for Brendan and the legal scholars: Does SCOTUS have the authority to rule on the factual basis of federal law? IOW, can SCOTUS rule that Congress <i>must</i> reclassify marijuana, because the facts support potential medical benefits? This would not be a question of interpreting the Constitution, obviously, merely judging on the appropriateness of a law in regards to the facts. If federal law is based on non-facts and classifies marijuana accordingly, does SCOTUS have the power to force Congress to demolish the “gigantic edifice of lies [that] must be maintained for government officials to continue to classify marijuana as a Schedule I drug”?
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