Slippery Slope or Up in Smoke?

SCOTUS is considering Ashcroft v. Raich, 03-1454 today and it's expected to bring some, er, high drama.

Essentially the question at hand is whether Federal law (in particular, the Controlled Substances Act) trumps state laws allowing the use of marijuana for medicinal purposes. The drama is best illustrated by the case of Raich's co-plaintiff (lawyers, correct term?), Diane Monson:

In 2002, federal agents from the Drug Enforcement Administration showed up at the home of Diane Monson, who grew marijuana there and used it to treat a degenerative spine condition. In California, such use of marijuana has been legal since the voters passed Proposition 215 in 1996, the Compassionate Use Act, which allows seriously ill people to grow and use marijuana when a doctor has found it to be medically appropriate. The federal agents were met at Ms. Monson's home by sheriff's deputies, who found that her cultivation and use of the drug were legal under California law. After a three-hour standoff, the D.E.A. agents seized Ms. Monson's six cannabis plants and destroyed them.

None of the usual arguments for outlawing drugs pass the laugh test for me. If the laws actually worked, that would be one thing. As they stand, however, they're a joke, and they do their own paradoxical brand of harm to society at large (having spent four weeks in a grand jury for cases from the NYC Office of Special Narcotics Prosecution, I can safely say we're wasting a hell of a lot of money on ridiculous cases for this...no offense meant to the fine people working there).

While the MSM is widely playing this as a case about legalizing drugs, however, the NYTimes pointed out in their editorial today that it's also very much about Federalism and has some rather tricky ramifications:

Although the California women should win, it is important that they win on narrow, fact-specific grounds. Advocates of states' rights have latched onto this case and are urging the court to use it to radically rewrite its commerce clause rulings, reviving ancient precedents that took a more limited view of Congressional power. This is where the greatest danger lies in this case. If this sharply restricted view prevails, it could substantially diminish the federal government's ability to protect Americans from unsafe work conditions, pollution, discrimination and other harms.

SCOTUS groupies were reportedly lined up overnight to get in today. Well, groupies of some sort or other, anyway.

PS: I'm leaving for a week in Miami in a bit...bloggin' from the beach if at all possible, but not likely, as I'll be working an art fair and most likley recovering from the parties when not actually selling art (God willing). See y'all in a week.

Comments

[crionna]

Serious question. Would the taxes we would charge on the sale of drugs be enough to cover all the treatment needs resulting from their use?

[Edward]

If I"m reading it right, that question assumes an increase in use, crionna. The question as I see it is how are those treatments being paid for now and would the taxes help alleviate the burden from those sources.

I don't think a significant increase would follow legalization. As with alcohol, moderation just makes sense.

[crionna]

Actually Edward, you're attempting to read me and that usually calls for a whistle toot and a yella hankie ;P

I want to know if we could cover all the treatment costs for those who use these drugs with the taxes raised from their sale? Period, er Question Mark...

Seems to me, that if we could, then we might have a model for alcohol and tobacco tax rates as well. Heck, perhaps vegetables should not be taxed at all, while red meat would be taxed at a higher rate with the money going into heart disease treatment.

[crionna]

PS, Good Luck in Miami.

[Sebastian Holsclaw]

I don't see how the state can prevail without "reviving ancient precedents that took a more limited view of Congressional power." At this point there is the ridiculous precedent from the 1930s (Wickard) saying that food grown on your property soley for your own consumption is covered under the commerce clause and can be regulated by the federal government. Until the Renquist court, Constitutional law classes pretty much taught that the commerce clause was broad enough to allow virtually any federal regulation.

[John Biles]

Since Federal law trumps State Law in areas where the Federal government can validly legislate, the only way that California can evade having its medical marujuana laws overthrown is if the Supreme Court decides the Federal Government can't regulate marujuana use. That will happen around the same time I ascend to godhood and destroy Columbia with the fires from my eyes.

I am tending towards supporting the decriminalization of various forms of drug use and replacing them with laws which will simply beat people down for actions pursued under the influence more effectively. But I think the constitutional case for the Federal Government being able to ban it, and thus trumping the ability of states to legalize it is pretty strong under current constitutional law.

[Julie]

Sebastian, I thought of Wickard, too, when I read about the case. I wonder, though, why you think the court won't seize on this opportunity to limit the commerce clause, especially after the majority opinions in Lopez and Morrison. Hasn't Scalia basically said he wants to take the Court back to the dark days of Lochner?

[hilzoy]

I tend to take what I think of as an expansive view of the commerce clause, but even I have never been nearly so expansive in my reading as either (a) previous versions of the Supreme Court or (b) our present Justice Department. I mean: I think lots of things, like minimum wage laws, do fall under the commerce clause, but I didn't think the Violence Against Women act did, despite approving of it (what I knew about it, at least) on every other ground. Likewise here.

As best I can tell, the Justice Department is arguing that there is interstate drug commerce which is appropriately regulated by congress (true), that intrastate commerce affects this and thus can be appropriately regulated to (it seems to me that the regulatable sorts of intrastate commerce need to be more narrowly defined than 'intrastate commerce, period'; otherwise I can't imagine why the constitution includes the word 'interstate' at all); that actually this extends not just to intrastate commerce but also to intrastate possession and use (same response), and that because privately growing and consuming one's own marijuana "affects" commerce, since it involves "the production of a fungible commodity for which there is an established market", which seems to me beyond bizarre.

I mean: there is also a market for PhD dissertations (I mean: where you pay someone to write yours for you.) I assume that some of this commerce is interstate. It seems to me that by the same logic used in the Justice Department's brief, the Federal Government could prohibit me from writing my dissertation if it had also banned interstate dissertation selling. (Actually, my dissertation wasn't fungible, but I don't see why that's relevant; the commerce clause isn't limited to commerce in fungible goods.) (I'm also pretending that this ban wouldn't run into First Amendment problems; they aren't relevant to the main point, which is: claiming that banning me from writing my dissertation could possibly be construed as a power the Congress has in virtue of the interstate commerce clause, but has wisely decided not to use, is just bizarre.) Why couldn't any activity for which there's a market be banned in this way?

Come to think of it, here's a new way for the government to argue for prohibiting consensual gay sex between adults in private: it's part and parcel of the government's power to ban interstate gay prostitution, which it has thanks to the ever-expanding interstate commerce clause. -- This is nuts.

[Sebastian Holsclaw]

"Come to think of it, here's a new way for the government to argue for prohibiting consensual gay sex between adults in private: it's part and parcel of the government's power to ban interstate gay prostitution, which it has thanks to the ever-expanding interstate commerce clause. -- This is nuts."

Yup, and until Lopez, that was pretty much the state of the interstate commerce power post-Wickard.

Julie, I'm not against the Supreme Court reining in the commerce clause a bit (or even quite a bit). The NYT seems to want to have its cake and eat it too by getting the result it wants in this case, without really changing the interstate commerce clause which gives the federal government almost unlimited reach in cases where it wants that.

[kenB]

The NYT seems to want to have its cake and eat it too by getting the result it wants in this case...

Agreed -- I nearly laughed out loud when I read their plea. Seems that 99% of both federalists and states'-righters are happy to switch positions when it suits them. But if you haven't already, check out the oral arguments over at Legal Theory Blog. In order to get the verdict he wants in this case without forcing the court to invalidate piles of federal regulation, Barnett pushed the idea that activity that's not directly related to interstate commerce could legitimately be regulated iff "essential to a broader regulatory scheme." That concept might be mushy enough to accomplish pretty much what the NYT is asking for.

[jpe]

Barnett pushed the idea that activity that's not directly related to interstate commerce could legitimately be regulated iff "essential to a broader regulatory scheme." That concept might be mushy enough to accomplish pretty much what the NYT is asking for.

I'll bet it wins over O'Connor, who has a thing for mushy tests.

Scalia's questioning about the Endangered Species Act sounded like a death knell to me, though.

[votermom]

Are US doctors only allowed to prescribe FDA-approved drugs?

[Sebastian Holsclaw]

"Are US doctors only allowed to prescribe FDA-approved drugs?"

I believe so. But the marketing and sale of drugs has a pretty clear impact on inter-state commerce, so I don't think it is really very much of a close call when it comes to federalism.

[Katherine]

"Come to think of it, here's a new way for the government to argue for prohibiting consensual gay sex between adults in private: it's part and parcel of the government's power to ban interstate gay prostitution, which it has thanks to the ever-expanding interstate commerce clause."

This wouldn't work. Lawrence was decided on 14th amendment grounds (would've been 5th amendment had it been a federal law.) Saying that something falls under the commerce clause power doesn't do anything about equal protection, due process, the First through Eighth amendments....it just addresses the statement that all powers not expressly delegated to the federal government are reserved to the states and the people.

[Sebastian Holsclaw]

Sure, but under the commerce clause the prostitution hypothetical would be an excellent argument and could very well succeed. It is therefore a good illustration for non-limiting the commerce clause currently is. The fact that the hypothetical law would be struck down under other clauses and the fact that the commerce clause as currently interpreted is almost an unbridled allowance of federal jurisdiction over everything are two different issues. :)

[Sebastian Holsclaw]

BTW, Captain's Quarters has an excellent post on the topic. I agree entirely agree with this:

California's medicinal-marijuana proponents should have applied to the FDA for reclassification of marijuana as appropriate for medical use; a denial would have formed the core of a much more substantial lawsuit, as (I believe) the denial would have been found arbitrary. The FDA has never done a thorough vetting of marijuana's potential for medicinal use in the manner in which Ms. Raich applies it, and a denial would have been shown to be both premature and unsupported by any evidence.

I am not unsympathetic to the medicinal-marijuana cause, but California's end-around has always provoked my skepticism and opposition. They want to treat marijuana as a medicine but then allow anyone to self-medicate without the prescription required for almost any other treatment. It also allows anyone to grow their own marijuana, calling into question the quality and the consistency of dosages -- certainly an issue if you're serious about treating marijuana as a medicine. If California wants to treat this more seriously, they need to follow Breyer's advice to have the FDA reclassify it, and rewrite their law to require a prescription for its use, along with a specific set of conditions for which it can be prescribed.

Under pretty much any of the modern interpretations of state rights and commerce, the current California law is implicated. That is because the modern commerce clause is almost unlimited, and because California's rules are not narrowly tailored to a medical neccessity argument. I am VERY sypathetic to reviving the commerce clause as an actual limit on Congressional power. But contra the NYT, this case can't be decided on state's rights grounds without a noticeable change in commerce clause theory.

(Public note to self. I did promise a long judicial interpretation post two months ago didn't I?)

[Bernard Yomtov]

As I understood some of the arguments they are based on the notion that marijuana, like wheat, is fungible, so consumption of a quantity grown for personal use has an impact on the national market. Is consensual non-commercial sex, of whatever nature, fungible with prostitution? I don't think so.

[Standard IANAL disclaimer as excuse for possible idiocy]

[Katherine]

Bernard--depends on what you mean by "fungibility." Theoretically demand for prostitution could be affected by whether you can get any without paying for it.

But there's a danger that marijuana grown at home "for medical use" finds its way into the illegal, interstate market. This is not a risk with non-commercial sex and prostitution.

That said, it's a clever analogy as far as the commerce clause goes and Barnett used it himself. (Except he made it marital sex, not about gay sex.* That's a link to some long excerpts from the oral arguments which are really worth reading. Note especially Justice Stevens' strong grasp on economics.)

The economic/non-economic distinction seems like it's potentially workable. (note to all liberals: you may be sacrificing at least half of the Endangered Species Act if you like this.) But please let's not go back to the idiocy of Hamer v. Dagenhart, that unless your business is on the state line it's not interstate commerce. Not everything is commerce, but almost all commerce is interstate in effect these days. (note to all liberals: if this happens, kiss federal minimum wage & maximum hour laws, child labor laws, laws on union organization, a very large portion of environmental regulations, the 1964 civil rights act, and a great many other things goodbye.)

Why isn't the federal government arguing, not in defense of the drug laws, but that California's scheme is pre-empted by the FDA? I don't think the FDA is a controversial application of the commerce power, and you could make a decent case that it's meant to occupy the field.

I assume there's a reason, but I don't know what it is.

*Yes, I realize the categories are no longer mutually exclusive. Speaking of my state's beloved activist judges, someone needs to tell the Boston Globe that the Supreme Court denying cert on a ridiculously frivolous lawsuit is not front page news. The Supreme Court doesn't agree that judicial review by unelected judges on constitutional issues undermines "a republican form of government"? Wow, there's a shocker.

[votermom]

California's medicinal-marijuana proponents should have applied to the FDA for reclassification of marijuana as appropriate for medical use

That seems to make sense.

[Slartibartfast]

Next, they ought to apply for a reclassification of marijuana as a voluntary-use intoxicant. Probably not the proper nomenclature, given that it's my own. I still haven't seen any convincing arguments for the case that marijuana ought to be any less legal than alcohol.

[Sebastian Holsclaw]

"Not everything is commerce, but almost all commerce is interstate in effect these days."

I wouldn't mind if that was what the interstate commerce clause ended up being in actual effect. It is the non-commerce stuff that annoys me. The idea that growing food in your backyard is regulated as commerce is silly. The idea that bringing a gun to school is commerce is really silly. (Though thankfully the Supreme Court was able to figure that last one out finally).

[kenB]

The idea that growing food in your backyard is regulated as commerce is silly

If this is referring to Wickard, it's not an accurate description of the case -- see here, for instance. The critical bit:

In short, good ol' Roscoe was running a fairly substantial commercial farming operation. The amount of wheat he was growing wasn’t just to feed his family (and hence, purely local and non-economic in nature).

Rather, Roscoe was taking the wheat he grew and was feeding it to his livestock for sale later on the market, using it to reseed his fields, and otherwise reinvesting it into his farm’s operations.

It's certainly still a questionable decision, but not entirely ridiculous.

[Bruce Baugh]

I don't know about California's medical marijuana program, but the one in Oregon requires some pretty careful record keeping about quantities produced and where they go, sets limits on quantities, and requires allowing inspections. It'd still be possible to sneak some into the general market, but not much, and penalties include loss of all rights to participate in the program on fairly short notice.

Medical marijuana advocates have applied for reclassification with the FDA. Repeatedly. With evidence as to the benefits and hazards of its use as compared with other treatments for a variety of diseases. To no avail - the FDA simply won't consider it. Evidence doesn't count when one is up against the moral crusade. The states-based strategy began precisely because a national one had been tried and failed repeatedly.

[Katherine]

"So what I will do as president is, I will require the FDA within first 12 months to evaluate marijuana and see if it is, in fact, a decent medicine or not. If it is, for what purposes -- for certain purposes, and I suspect it will be for cancer patients and HIV/AIDS patients. And it should be allowed for that. But I suspect it will not be allowed for things like glaucoma. But we have to do the FDA studies. I think marijuana should be treated like every other drug in the process and there shouldn't be a special process which is based on politics to legalize it."

guess who?

ah well. He would have lost anyway, I'm sure. I just get nostalgic from time to time.

[Slartibartfast]

guess who?

YEAAAAAAAARRRRGGGHHHHHH!

[Katherine]

correct.

[rilkefan]

Ob. Mark Kleiman link.

[votermom]

Er, when did Mr. YEAAAAAAAARRRRGGGHHHHHH! run for president? And under what name?