6.07.2005

Raich v. Ashcroft - Supreme Court decision

You all might want to visit the restroom and pour a cup of coffee before you read this one - it's going to be a bit, um, wordy. As conservative as I may be in some areas, the issue of legalizing marijuana - for medicinal purposes OR recreational purposes - is NOT one of them.

Let me make one thing clear : I do not smoke marijuana. I don't smoke at all. However, I do not believe that marijuana should be illegal. Aside from the fact that marijuana has true medicinal purposes, it is not worthy of being banned. Marijuana is not physically addictive. It may be psychologically addictive but so is sex for some people - are we going to ban that too?? (don't answer that question)

From an anti-hypocritical standpoint, nicotine is one of the most addictive substances known to man. Cigarettes are responsible for a variety of diseases and cost our economy billions of dollars and hundreds of thousands of lives every year. They serve NO medicinal purposes whatsoever and yet they are legal. Alcohol is too. Alcohol results in thousands of lives lost each year due to impaired driving and domestic violence. It, too, is physically addictive and alcoholism and alcohol abuse cost our economy millions of dollars every year as well. Yet it is legal.

If you're going to outlaw marijuana then let's get off of our hypocritical podium and ban these two drugs as well. Like I read in the comments section of another blog, "Any nation with thriving alcohol and tobacco industries has no rationale for cannabis prohibition. Medicinal or otherwise."

But I digress.




First, a little history, brought to you by Pete Guither at DrugWarRant.com .



Introduction: The Case

In case you haven't been following this case at all, here it is in outline:

California is one of the eleven states (most recently with Montana) currently that allows some kind of medical marijuana by law, (in this case, through the mechanism of Proposition 215).

Federal law, through the Controlled Substances Act, does not recognize medical marijuana

The federal government was so opposed to medical marijuana that they regularly sent armed squads of federal agents into California to break up medical marijuana coops, and seize their assets and medicine, claiming that federal law trumped state law. (Read about one of those raids here.)

The federal government felt it important enough to divert resources that could have been used to fight terrorism or go after violent traffickers, in order to arrest sick people

Angel Raich of Oakland, CA (who was also raided), and Diane Monson Monson of Oroville, CA along with two anonymous caregivers sued the federal government on October 9, 2002 to prevent the feds from interfering with their right to use medical marijuana. Read Angel's own statement about the case and her use of medical marijuana.

Three factors add particular interest to this case.
What the respondents are doing is completely legal under state and local law.
It is asserted by Angel Raich and her doctors that she would die without marijuana, and that has not been disputed.
Their marijuana was grown as part of a cooperative of patients and no money changed hands. Therefore it had no direct impact on interstate activity or commerce. (see Commerce Clause below)

On December 16, 2003, the 9th Circuit Court of Appeals granted a prelimary injunction to stop the federal government based in part on this ruling:
We find that the appellants have demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress' Commerce Clause authority.
On April 20, 2004, the Federal government appealed the decision to the Supreme Court. Oral arguments were heard on November 29, 2004 and the case will be decided some time in the Spring of 2005.

The Commerce Clause

The Constitution of the United States specifically does not give police powers to the federal government. That kind of power was considered a state function. However, there is one clause in the constitution which gives the government the following "limited" power...
to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

This is generally known as the commerce clause. As intended, in the early years of this country's history, the commerce clause allowed only minimal instrusion on the activities within states. For example, federal alcohol prohibition was not considered constitutionally possible without an amendment because of the commerce clause, and judges also regularly placed the tenth amendment in the path of congressional regulation of "local" affairs.

However, over the course of years, the commerce clause was consistently weakened, giving federal government more leeway in regulating and enforcing federal laws within the states.

It was a gradual expansion, from limited border functions, to accepting that interstate commerce can be regulated as it travels through the states, to expanding it to include transactions that affect interstate commerce, to almost meaning anything that Congress decides is interstate commerce.

There is no doubt that Raich is a commerce clause case. And a big one. The decision will have ramifications that extend beyond medical marijuana.

Many cases that go to the Supreme Court are complex in terms of the specific facts. The nice thing about Raich is that it's really quite pure. Nothing was sold. Every part of the activity was in-state, so there's no direct activity that is in any way "interstate" or "commerce." Angel Raich is a sympathetic character, especially since her life may depend on the use of marijuana (it's hard to imagine any kind of compelling interest for the federal government to want her to die), and her activity was both recommended by her doctors and allowed by state and local laws. This means that the court will not easily be able to rule based on some complication of the actual case. They will be pressed to decide whether Raich's medical marijuana use is interstate commerce (in which case it's hard to imagine anything that isn't, and you can throw away states' rights) or whether the federal government has to let the states handle medical marijuana as they see fit.


There are two things that stick out in my mind in the above text :


* the fact that NO MONEY CHANGED HANDS. This marijuana was grown by the users for their own use.

* the fact that growing and using marijuana for medicinal purposes (which this was - there was a prescription for it) is LEGAL according to state and local law.


If no money changed hands and the product was not transported for sale (or to be given as a gift(?) since no money was exchanged) across state borders, I fail to see how the Commerce Clause applies here.

What bothers me even more than the decision itself is the implication of the decision. This decision gives the federal government the power to usurp states' rights. I agree with Justice Thomas on this point :

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.


That means that Bunco games, scrapbooking clubs, and babysitting co-ops are now fair game for regulation. God, help us.


In sum, neither in enacting the CSA nor in defending its application to respondents has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress' goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA [Controlled Substances Act] to patients like Monson and Raich. That is, unless Congress' aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana.

Even assuming the CSA's ban on locally cultivated and consumed marijuana is "necessary," that does not mean it is also "proper." The means selected by Congress to regulate interstate commerce cannot be "prohibited" by, or inconsistent with the "letter and spirit" of, the Constitution.



This decision boils down to 2 things :

* it allows Congress to not only regulate INTERstate commerce (commerce between the states) but also INTRAstate commerce - commerce within a state. It gives Congress the power to tell the states how to govern their own people.

* it ignores the fact that this case failed to meet the requirements of the sustantial effects test (look it up, people) or the Necessary and Proper Clause.

Basically it ignored the Constitution. God, help us.


My hope is this : that eventually this issue will be back before the Supreme Court but in a different structure - that of The State of California v. Congress. I think it's about time Congress be put in its place.


Just another reason I like the Libertarian party - Congress can't abuse power it DOESN'T have...


- hfs

2 comments:

barksbt said...

IF i'm remembering my history correctly, federal intervention into state matters had a disasterous effect on this country back in the 1850s/1860s; some folks got rather testy about it.

Katy said...

I did some research not to long ago as to the initial reasons marijuana first became illegal. I absolutely agree with you. I AM a smoker and wish I had never smoked one cigerette. I liken it's addiction to heroin (though I have never done heroin). I do know that quitting cigs is friggin' hard and good god how addicting!!!!!