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Big Government Goes To Pot

This column from The Weekly Standard was written by Terry Eastland.

Ashcroft v. Raich, the "medical marijuana" case argued this week in the Supreme Court, is less about marijuana and its medical effects than it is about federal power - specifically the power of Congress to regulate interstate commerce.

Liberals worry that a court that in recent years has somewhat limited that power will use Raich to make serious forward progress with its "new federalism agenda." To judge by the oral argument, however, no majority seems ready to do that. Yet if, as seems likely, Raich is decided on narrow grounds, the big issues the court will have finessed will undoubtedly return in subsequent cases.

Raich is a case from California, which passed a referendum authorizing the possession, manufacture, and distribution (for free) of marijuana for personal medical use under a doctor's supervision. Nine other states have similar laws, which exempt patients and their caregivers from criminal sanctions.

Those laws, however, happen to be in conflict with a federal law, the Controlled Substances Act of 1970, which outlaws the manufacture, distribution, and possession of marijuana, making no exceptions for medical use. Raich is about that conflict.

After two California women using marijuana under their doctor's care had their drug supplies seized by federal agents acting under the Controlled Substances Act, they sued, challenging the law as unconstitutional because it encompasses medical marijuana. The pith of their complaint is that the Article I clause authorizing Congress to "regulate commerce . . . among the several states" doesn't permit the comprehensive regulation of marijuana codified in the CSA. In other words, they ought to be able, consistent with California law, to use marijuana to relieve their pain.

Raich is not an easy case if you (a conservative) think Congress regulates too much in the name of interstate commerce but you also want the federal government to war against illegal drugs. It is also not easy if you (a liberal) think there should be exemptions for medical marijuana but also believe there is virtually nothing the federal government can't regulate as interstate commerce. Only libertarians are at ease in thinking about Raich since they're against laws criminalizing drug use and the big federal government grown up since the New Deal, much of its foundation being laid by the commerce clause.

Raich inevitably forces you to think about the line of New Deal commerce-clause cases culminating in Wickard v. Filburn (1942). Wickard is the famous case of an Ohio farmer who grew wheat to feed his livestock and to grind into flour for his family. It never left the farm. Yet the government had an interest in Roscoe Filburn's "local" farming because he produced more wheat than federal law allowed.

Fined $117, Filburn sued, but lost his argument that Congress had no power to regulate his wheat production. The court said that his activity could be regulated because it had a "substantial effect" on the nation's commerce. How so? Because if other farmers followed his example, their personal wheat farming would reduce the national demand for wheat and thus its price - contrary to the government's regulatory scheme.

Wickard yielded a commerce clause that placed no real limits on congressional power. Nine years ago, however, in the Lopez case from San Antonio challenging the Gun-Free School Zones Act, the court for the first time in more than a half-century found that the clause did limit Congress. Yet it didn't overrule Wickard.

The problem that Raich presents for the justices is that if they follow Lopez, they probably have to side with the California plaintiffs. But if they do that, they probably have to confront Wickard, because the two cases are in serious tension. To judge by the oral argument, the justices are not anxious to side with the plaintiffs nor to overrule or seriously modify Wickard.

That's why the smart betting is that they will muddle through, finding a way to side with the government. Left for another day will be what to do about a federalism jurisprudence that one must hope is not rendered further incoherent by the court's decision.

Terry Eastland is publisher of The Weekly Standard. This column originally appeared in the Dallas Morning News.
By Terry Eastland

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