Tuesday, June 07, 2005

Mary Jane's Last Dance

So the Court has decided that federal laws against marijuana use trump states' own laws regarding the legality of the drug for medicinal use. They used the Commerce Clause, which is perfectly logical since marijuana grown in-state and consumed in-state has a lot to do with interstate commerce. The decision was 6-3 - even Antonin Scalia, who usually tries his damnedest to work the phrases "states' rights" and "federalism" into his opinions, sided with the immoral majority here. (It's worth noting that this is the only time I know of where Scalia and Thomas disagreed.) Apparently, Scalia doesn't mind when states invade someone's bedroom, but when states try to let desperately ill people smoke up, he draws the line. So much for any inkling of consistency that existed in Scalia's nonexistent judicial "philosophy" - he just proved himself a mindless pawn of the far right.

What bothers me about this decision is that the Court has gotten into the business of taking away rights. Rehnquist and other conservatives have held that states should decide what rights their citizens have, and not the federal government. Liberals generally say that if states overstep their bounds in restricting rights, the Court can step in and tell them to stop. But never has a Court held that a state had overstepped its bounds in protecting rights. That's scary. (ConLaw scholars out there - you know who you are - feel free to contradict me on this point.)

On to other things:

The New York Times has shown that under the Bush tax cuts, someone making $50,000 a year will be taxed at the same rate as someone making $87,000,000 a year. Never mind that most of that $50,000 a year will go to necessities like food and shelter and the like. I guess most of that $87,000,000 a year will go to necessities too. Like yachts.

A Post poll has shown that Bush has completely ignored the issues that people care about. You mean no one cared about judicial filibusters? I'm shocked! Shocked!


Mike said...

The most amusing part of the marijuana case for me was that the dissenters, in addition to O'Connor who changes with the wind, were Thomas and Rehnquist. Just when you never think you'll agree with Thomas and Rehnquist...

Ben said...

"Feel free to contradict me on this point."

Boy, oh boy, must I ever contradict you. Not necessarily on that point, but on your whole post.

You know I oppose the War on Drugs, but if this case had gone the other way, it would have been a disaster paving the way for the ultimate victory of Constitution in Exile folks and the end to federal protection of workers and civil rights.

Sounds crazy? Let me explain.

In 1942, the Supreme Court decided Wickard v. Filburn. In that case, a farmer was growing home-grown wheat and using it himself. He said he should be free of federal regulation of the wheat market because he wasn't selling stuff in Interstate Commerce. The Court rejected his claim, holding that (1) the Court should look not just at the farmer's individual home-grown wheat, but all people who ate their own wheat, (2) by deciding collectively NOT to put their wheat out on the market, home-growers had a substantial effect on interstate commerce. Therefore, they could be regulated.

From a standpoint of pure precedent, the Raich medical marijuana case falls squarely within the precedent set by Wickard. It's homegrown use of something that is often sold on the interstate market. Therefore, Congress can regulate it...even making it illegal.

But there's something much deeper and far more serious going on under the surface (serious as the medical marijuana issue is....).

Wickard was part of the continuing deference the Court gave Congress in the exercise of its Commerce power after the New Deal, deference that allowed Congress to enact laws protecting workers and civil rights. This willingness by the Court to look at things in the aggregate was key in Katzenbach v. McClung (1964) in which the Supreme Court upheld the Civil Rights Act against a challenge by the owner of Ollie's Barbecue, a segregated Southern restaurant. The Court upheld the Civil Rights Act by saying that Ollie's Barbecue buys some of its food materials through interstate commerce and - when aggregated with all such segregated restaurants working in interstate commerce - the effect on commerce of segregated restaurants was huge. Therefore, the Civil Rights Act was upheld as an exercise of the Commerce Power....by depending on Wickard-style aggregation.


Ben said...


Here's the really sinister part...the attorneys who offered to represent the marijuana plaintiffs were adherents to the Constitution in Exile movement. Their goal was not just allowing California to allow medical marijuana. It was to destroy Wickard and ultimately to destroy Congress's Commerce Power. (Exile scholar Richard Epstein title his speech on the case "Putting the Commerce Clause in Its Proper Place.")

And, sadly, that's what ruling in favor of the marijuana plaintiffs would have done. It would have meant Congress may not aggregate individual acts to determine what effects Interstate commerce. The Civil Rights Act, portions of the Fair Labor Standards Act and the Family and Medical Leave Act and the Americans With Disabilities Act and so much more wonderful legislation would have stood on thin ice and very possibly been declared unconstitutional...eventually.

I sympathize with the patients who need medical marijuana, but the stakes are just too high.

The War on Drugs should end the way Prohibition did. The ban on medical marijuana should be repealed. Whenever the federal government arrests someone for medical marijuana use, it should be publicized like nobody's business and the government thereby made to look like heartless fools (not too difficult).

But allow me to emphatically say this: undercutting the Commerce Clause is NOT the way to do it. The Supreme Court has pulled back from the brink, instead of delivering progressives a Phyrric (sp?) victory. Raich was decided rightly. Thank God.

Anonymous said...

Why the SC has completed warped the meaning of the "commerce" clause" in the constitution.

Quite frankly, the ending of innocent people getting murdered, improsoned, robbed and harrassed by the taxpayer funded thugs at the FBI and DEA is well worth possibly losing laws that only provide an illusion of equal rights.

- miguel

Ben said...

"Adopting [Constitution-in-Exile's] pre-1937 views could threaten federal and state statutes in innumerable areas: many federal criminal statutes, including those against the production or possession of drugs or child pornography; the Civil Rights Act of 1964 and other anti-discrimination statutes; highway speed limits; the national drinking age of 21; the Occupational Safety and Health Act; environmental laws like those regulating clean water, clean air, safe drinking water, toxic waste sites, endangered species, and air pollution; minimum wage, maximum hour, and child labor laws; federal and state laws protecting peaceful labor activities and collective bargaining; the Employee Retirement Income Security Act; Americans with Disabilities Act; Age Discrimination in Employment Act; Family and Medical Leave Act; Fair Labor Standards Act; Coal Industry Retiree Health Benefit Act and other pension protection statutes; Food Drug and Cosmetic Act; Federal Trade Commission Act; the Sherman Act; Federal Educational Records Privacy Act; local rent and eviction control statutes; state and federal Medicare and Medicaid statutes limiting the rates hospitals, doctors, nursing homes can charge patients; laws promoting affordable prescription drugs; fees funding lead paint remediation or health and safety inspections of rental housing; laws prohibiting violence against abortion clinics; the Religious Land Use and Institutionalized Persons Act, and perhaps even the taxes funding the new Medicare prescription drug benefit and proposed Social Security personal accounts."

That's from the following link. http://www.acsblog.org/federalism-1424-guest-blogger-janice-rogers-brown-and-the-revolution-of-1937.html

Now, I wouldn't mind some of the above statutes disappearing (i.e. national drinking age, federal drug laws). But that's because they are bad POLICY...not because they are unconstitutional exercise of the Commerce Power.

But perhaps, just perhaps, a few people might disagree with Miguel's assessment that the Civil Rights Act - and its prohibition on racial segregation in places of public accomodation - just provides the "illusion of equal rights." Same goes with workplace safety regulation, environemental protections, and Medicaid and Medicare.

I am pretty greatful for Congress's Commerce Power when it comes to Medicaid....it saved my grandma's life and my uncle's life.

To deny the massive society benefit of most of the above laws is to live in a libertarian daydream.

Besides - I can tell you from personal experience as a Public Defender intern that states enforce drug laws, too. Undercutting Congress's Congress power won't end the War on Drugs....it's still too popular. It would simply move to the states.

Ben said...

Ok, the "libertarian daydream" crack crossed the line. Apologies. (This is why I'll never make it as a pundit.)

But I still strongly disagree with you.