Pros and Cons of Legalization of Marijuana

Pros and Cons of Legalization of Marijuana

Note: For the sake of brevity (believe it or not), I am omitting a great deal of information which I don’t think is horribly relevant to the Court’s opinions or my own analysis. Also, I am not making a case here for or against the drug war, or medical marijuana, or the spaying and neutering of marmots. I’ll address all of those another time (well, except maybe the first two).

This case, as I’m sure you know by now (or maybe you’re not interested, in which case I strongly suggest you move on to another post), addressed the constitutional ability of Congress, under the federal Controlled Substances Act (“CSA”), to supersede and essentially nullify California’s Compassionate Use Act of 1996 (CUA”), which provides for the medical use of marijuana. Generally, under the Supremacy Clause of the Constitution, a lawful act of Congress supersedes any contrary state statute. However, the question here is whether the CSA, as applied to the medical use of marijuana, was lawful – in other words, did Congress have the power to apply the CSA to the medical use of marijuana in California despite the CUA.

The facts are actually very simple: Raich basically involves a couple of California residents (the Plaintiffs) who were growing marijuana and utilizing it for medicinal purposes. They did not sell or otherwise distribute their hash; it was grown in California and used in California by California residents. In other words, all sides agree (and the Supreme Court recognized) that there is no direct interstate component involved here. There are other facts of interest, i.e. that symptoms which were being treated, the doctors who were prescribing the treatment, etc. But all those facts are incidental and without consequence.

Local law enforcement officials and the DEA raided one of the Plaintiff’s home and found pot and pot plants. The local officials refused to take any action, inasmuch as the possession was lawful under the CUA. However, the DEA seized and destroyed the plants. The Plaintiffs sued the U.S. Attorney General (then Ashcroft, now Gonzales), under the theory that enforcement of the CSA would violate the Commerce Clause and several other provisions of the Constitution and Bill of Rights.

Raich boils down to a Commerce Clause and Necessary and Proper Clause analysis. In short, the Commerce Clause permits Congress to regulate commerce “with . . . and among the several States.” The Necessary and Proper Clause permits Congress to “make all Laws which shall be necessary and proper for carrying into Execution [Congress’s] Powers.” Both clauses can be found in Section 8, Article I of the United States Constitution.

The primary impetus behind the Commerce Clause stemmed from commercial statutes then-existing (circa 1789) in the various states which discriminated against other states. For example, Maryland would pass a statute stating that widgets made in Maryland would not be taxed, but widgets manufactured outside Maryland and imported into the state would be taxed. Sometimes competition between states got so bad that a state would pass laws specifically targeting goods and services produced from other particular states (“anyone can bring widgets into Maryland except New Hampshire, who will have to pay a tax to bring their widgets in, because we don’t like them.”) So, the Commerce Clause was initially exercised to prevent states from discriminating against other states.

As time went on, Congress expanded their Commerce Clause power to regulate actual producers and suppliers within states, or particular industries, so that now Commerce Clause legislation passed beyond the states themselves to effect entities and businesses inside the states. Finally, starting in the New Deal era (circa 1930s), Congress began passing a great deal of Commerce Clause legislation which impacted, roughly, anything which had anything to do even remotely with the possibility of interstate commerce.

One example of this type of expansive legislation is the case of Wickard v. Filburn, which was decided in 1942. Without going into too much detail, Wickard concerned a farmer (Filburn) who was subject to severe price and quantity controls on the wheat he grew. Filburn proceeded to grow his allotted amount of wheat for market, and then grew a bit more for his own personal farm use. The Supreme Court found that their Commerce Clause regulations applied even to his own small personal “stash” of wheat, because if everyone had their own personal stash, the aggregate effect of all those personal stashes would effect the national wheat market, which was an interstate commerce issue. It is significant, and we’ll come back to this later, that Wickard is an example of the kind of lousy law we get when Congress thinks it needs to tinker with the free market.

The reason I bring up Wickard is that a substantial amount of Commerce Clause doctrine is built upon this “aggregate effect” theory, and the majority opinion in Raich relies heavily on it.

At first blush, it seems apparent that the Commerce Clause shouldn’t apply in this case because there was no “commerce with and among the several states.” The cannabis was grown in California and never left the state. It was never even sold within California, which makes one wonder how commerce is involved at all, much less interstate commerce. In fact, a whole lot of rhetoric in the various opinions notwithstanding, none of the justices really contest that there is no direct commerce involved in this case. Nevertheless, current Commerce Clause jurisprudence (as it has developed for over a century) allows Congress to regulate commerce in three categories: 1) the channels of interstate commerce (i.e. trucking, airlines, mail, etc. – hopefully not the internet, though that really remains to be seen); 2) the instrumentalities of interstate commerce (the persons and things selling, buying, and being bought and sold); and 3) activities that substantially affect interstate commerce.

It’s this last category that is the key to Raich, and it implicates the Necessary and Proper clause. Essentially, the idea is that Congress can regulate things that are not, strictly speaking, actually involved in interstate commerce, as long as the tangential regulations have a “rational basis” for regulating the things which are actually involved in interstate commerce. This includes purely intrastate (local) activities which will have an impact on interstate commerce, such as our friend Filburn and his wheat stash. Now, theoretically any activity could have some attenuated impact on interstate commerce. If I buy Auburnopoly in my local bookstore and play it with friends this Friday night, instead of spending my money going to see a movie made in Hollywood in a theatre owned by a Delaware corporation, then I have to some degree affected interstate commerce. If everyone in the city does the same thing, we have really affected interstate commerce. Get the picture? The problem is determining at what point an activity substantially affects interstate commerce, or instead is really just a local activity. Justice O’Conner puts her finger on the issue quite nicely: “The hard work for courts, then, is to identify objective markers for confining the analysis in Commerce Clause Cases.”

Basically, the majority in Raich said that Congress, through the CSA, could regulate (read: prohibit and criminalize) the Plaintiffs’ homegrown Mary Jane because, like Filburn’s wheat, the aggregate of everyone in California growing grass in their flowerpots would have an impact on the interstate doobie market. How this impact would be negative, the Court doesn’t explain. In fact, this strikes me as counter-intuitive. It seems to me that allowing California residents to grow their own weed would reduce the amount flowing into the state from other places (interstate commerce), which is the whole point, right? Anyway, the Court found that Congress had a rational basis for prohibiting even in-state possession of marijuana, because it would affect the toke market.

Now, I’ve got to be honest: this strikes me as so much horse-hooey. Congress has no interest in controlling price and market conditions: it has an interest in destroying the market. I’m not saying this is a good thing or bad thing, but it certainly doesn’t seem to be related to commerce per se. If Congress wants to fight the drug war by prohibiting interstate distribution, commerce, etc., then so be it. But regulation of in-state possession is a huge overreach. This is an example of Congress attempting to enact legislation to accomplish a particular end (drug control) which it doesn’t really have the power to do, so it puts it in a Commerce Clause suit and calls it a duck (got that?).

Justice O’Conner, in her dissent, starts off with a stunning declaration of federalism:

We enforce the “outer limits” of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. . . . One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

As if to bookend her federalism, she closes with the following:

We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: “The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961).

Now, I love that concept of federalism, and have often quoted the above myself. But reading that in O’Conner’s opinion, I had to strenuously control the impulse to guffaw. It’s too rich . . . too rich.

Justice Thomas states in his dissent (and I agree) that personal cultivation, possession, and use of marijuana for medicinal purposes is beyond Congress’s Commerce Clause authority. The majority responds to Thomas by saying that if that’s the case, then personal cultivation, possession and use of marijuana for recreational use would likewise be outside Congress’s authority. The assumption by the majority is that everyone would agree that Congress absolutely has the authority to regulate (prohibit) recreational drug use. I disagree. I’m not sure I find in the Constitution where Congress can declare a drug war such as we’ve been waging for the past 35 years. Again, I’m not saying we should legalize drugs — that’s a discussion for another time. I’m just looking for the Constitutional jurisdiction for Congress to criminalize them wholesale. Seems to me it should be an issue for the states.

The whole problem with the Raich case, as well as a whole slew of Commerce Clause cases which came before it, is Wickard. As I said before, it was a lousy decision, because it stretched the Commerce Clause too far. Justice Thomas seems to recognize this, by challenging, not Wickard itself, but the doctrines behind Wickard.

Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce – any more than Congress may regulate activities that do not fall within, but that affect, the subjects of its other Article I powers. . . . Whatever additional latitude the Necessary and Proper Clause affords . . . the question is whether Congress’ legislation is essential to the regulation of interstate commerce itself – not whether the legislation extends only to economic activities that substantially affect interstate commerce.

. . .

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. . . .

Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate “Commerce,” and respondents’ conduct does not qualify under any definition of that term. The majority’s opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from “commerce” . . . to “commercial” and “economic
activity . . . and finally to all “production, distribution, and consumption” of goods or services for which there is an “established . . . interstate market” . . .

The majority’s rewriting of the commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively. [Let’s hope so, J.T.!]

. . .

If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of “Commerce among the several States.” Congress may regulate interstate commerce – not things that affect it, even when summed together, unless truly “necessary and proper” to regulating interstate commerce.

In fact, in recent decades, it appears that the Court has recognized the quagmire that Wickard has gotten them into, yet they refuse to overturn it, for the understandable reason that if Wickard is nixed, almost a century of Commerce Clause precedent and doctrine goes down the toilet with it. That simply will not do. So, the Court over the years has attempted to mitigate Wickard’s influence by distinguishing and narrowly construing it. Nevertheless, sometimes the cure is as bad as the disease.

One troubling thing about the California CUA is that is allows patients to grow their own marijuana – essentially, manufacture their own drugs. How many other drugs do you know are manufactured at home (legally!). I mean, if I could figure a way to make my own Amoxicillin or Zythromax, believe me I would. Think what I could save on prescriptions! In contrast, if California had made it legal to possess marijuana for medicinal purposes, but required it to be purchased from authorized and regulated producers, this whole debate may have been moot out of the gate. Production might have an impact on interstate commerce; the Court has held that mere possession does not.

By the way, unlike Bart, I don’t like the result in this case. Though I am, at this point, agnostic on the legalization of marijuana (I’m still working through it), I think it absolutely should be legalized for medicinal purposes, with the appropriate restrictions, of course.

The majority sums up by saying that if marijuana should be legalized for medical purposes, then the proper avenue would be in the “halls of Congress” where the “voices of the voters . . . may one day be heard.” Hmmmm . . . are these the same halls where the voters should be heard regarding bad judicial opinions?