June 06, 2005

Supreme Court rules against medical marijuana

by Guest Contributor

[Jed Sorokin-Altmann] A decision was issued this morning in Gonzales v. Raich. The Supreme Court has ruled that California's Compassionate Use Act, which authorized limited use of marijuana for medical purposes, can be trumped by the federal Controlled Substances Act. It was essentially a federalist/states' right decision, with Stevens, Kennedy, Souter, Ginsburg, and Breyer in the majority, Scalia concurring, and O'Connor, Rehnquist, and Thomas dissenting.

Leaving my own position on medical marijuana undiscussed, I must admit that I was surprised by this ruling. Although the majority opinion, written by Justice Stevens, attempts to distinguish this case from United States v. Lopez and United States v. Morrison (which involved the Gun Free School Zones Act of 1990 and providing a civil remedy under Section 13981 of the Violence Against Women Act of 1994, respectively), Stevens' opinion does not really give a solid explanation of what precisely is the criteria for when Congress does and does not have authority under the Commerce Clause to regulate an activity.

According to Justice Stevens (and the four justices who joined his opinion), in Lopez and Morrison, there was no commerce involved in those two cases, and there is commerce involved here. But as Justice O'Connor accurately points out in her dissent, there is no evidence that allowing person growing, use, and possession of medical marijuana has any effect on interstate commerce. These three cases stand in opposition to each other, despite what Stevens may claim, and now there is no bright line protecting "historic spheres of state sovereignty from excessive federal encroachment," as O'Connor put it.

June 6, 2005 01:15 PM | TrackBack
Comments

I haven't read the opinions yet, but perhaps it's the Wickard reasoning that even when you grow your own (wheat, in that case) it can affect interstate commerce. Of course, in Wickard it was legitimate commerce, so a man who grew and consumed his own wheat outside what New Deal regulations permitted wasn't buying other people's wheat and such actions in the aggregate contributed to depressing the price of wheat nationally. In Raich, on the other hand, no one is supposed to be buying or selling marijuana, so if anything it's a good thing for medical marijuana users to grow their own so they won't contribute to the illegimate market in marijuana.

Also, keep in mind when discussing Lopez that the Court struck down the law because it had no explicit nexus between what it sought to regulate and interstate commerce. Congress went back and changed the law to say that the firearm in question needed to have passed through interstate commerce, and as far as I know, the Court has not overturned the amended legislation.

Posted by: PG at June 6, 2005 01:26 PM

Wickard was invoked, of course, but I would agree with you that the case is distinguishable because it involved legal commerce.... The reasoning doesn't really apply here.

Posted by: Jed Sorokin-Altmann at June 6, 2005 01:52 PM

Now that I've skimmed the opinion...
Stevens thinks it does apply, because under rational basis scrutiny (which is all we need here because no right is being violated nor suspect classification made), the government doesn't have to prove that the activity it seeks to regulate has a substantial effect on interstate commerce, only that it could. And it's not implausible that the John Does who supply Raich with her pot could divert some of the supply to the black market.

Posted by: PG at June 6, 2005 01:57 PM

Water is sold in interstate commerce.

Can Congress regulate where you get a drink?

Stream water that you didn't pay for is verboten. Water from a tap is OK as long as you do not gargle and spit it out after flossing?

Short showers are bad because they do not consume enough water, but if you take a bath in a regulation bath tub that is fine?

So yes we will need bathtub regulations to go with the water regulations. After all the broader the regulatory scheme the more likely to pass muster.

Well the Congress has already gotten into toilet design. Why not bathtubs?

Posted by: M. Simon at June 8, 2005 05:42 PM

Nice to see that some people actually read the opinion.

I was very surprised that O'Connor, Rehnquist and Thomas were the dissenting votes. The Wickard wheat case on which Stevens bases his opinion certainly does not seem to be on point. The pot was not being sold and was not transferred in interstate commerce. The only effect I can see on interstate commerce by this decision will be an increase in the demand for illegal marijuana by cancer and MS patients using it to reduce pain. So, the Court would now appear to be supporting the illegal marijuana trade.

Posted by: J. Gold at June 22, 2005 02:54 AM
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