Tuesday, June 07, 2005

Thoughts on Raich Decision

Monday's decision in Gonzales v Raich is a mixed bag. While "medical" exceptions to drug laws were rightly rejected, states' rights to regulate intrastate commerce without federal interference were considerably weakened, and the federal war on drugs strengthened. On the whole, the decision is a net loss for liberty.

The majority wrote:

First, the fact that marijuana is used "for personal medical purposes on the advice of a physician" cannot itself serve as a distinguishing factor. 352 F. 3d, at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Moreover, the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner. Indeed, most of the substances classified in the CSA "have a useful and legitimate medical purpose."


Accordingly, the mere fact that marijuana--like virtually every other controlled substance regulated by the CSA--is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA.

Yes, whether the use is "medical", "recreational," or whatever, should have no bearing on the statute's legality. "Medical" marijuana is to commerce laws, what "good" speech is to speech codes.

But why should the utilitarian effects of local laws on interstate markets -- the effects of which can surely not be predicted in advance -- have any bearing on federal power?

The majority continued:

Second, limiting the activity to marijuana possession and cultivation "in accordance with state law" cannot serve to place respondents' activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.

Even when the Constitution does not enumerate those federal powers?

Justice Scalia, having already run over the Ninth Amendment, proceeds to nullify the Tenth:

Finally, neither respondents nor the dissenters suggest any violation of state sovereignty of the sort that would render this regulation "inappropriate," id., at 421--except to argue that the CSA regulates an area typically left to state regulation. See post, at 6-7, 11 (opinion of O'Connor, J.); post, at 8-9 (opinion of Thomas, J.); Brief for Respondents 39-42. That is not enough to render federal regulation an inappropriate means. The Court has repeatedly recognized that, if authorized by the commerce power, Congress may regulate private endeavors "even when [that regulation] may pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress."

The majority decided, in effect, that anything which can be construed to "affect" interstate commerce, even if it doesn't cross state lines, validates federal law, and that it trumps state law. Since growing and using marijuana locally can "affect" interstate markets (by reducing demand for them), the reasoning goes, the feds have every right to step in and regulate local commerce, even if nothing crosses state lines, and even if no money changes hands.

The dissent led by O'Connor let itself get trapped into economic arguments about the effects on interstate markets, while at the same time pretending that they weren't relevant:

Even assuming that economic activity is at issue in this case, the Government has made no showing in fact that the possession and use of homegrown marijuana for medical purposes, in California or elsewhere, has a substantial effect on interstate commerce. Similarly, the Government has not shown that regulating such activity is necessary to an interstate regulatory scheme. Whatever the specific theory of "substantial effects" at issue (i.e., whether the activity substantially affects interstate commerce, whether its regulation is necessary to an interstate regulatory scheme, or both), a concern for dual sovereignty requires that Congress' excursion into the traditional domain of States be justified.


There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market--or otherwise to threaten the CSA regime. Explicit evidence is helpful when substantial effect is not "visible to the naked eye." See Lopez, 514 U. S., at 563. And here, in part because common sense suggests that medical marijuana users may be limited in number and that California's Compassionate Use Act and similar state legislation may well isolate activities relating to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self-evidently substantial.

And again:

The Government has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime. Nor has it shown that Compassionate Use Act marijuana users have been or are realistically likely to be responsible for the drug's seeping into the market in a significant way.

The dissent undermined its own arguments, by playing into this utilitarianism.

The dissent also let itself get swayed by personal opinions:

To ascertain whether Congress' encroachment is constitutionally justified in this case, then, I would focus here on the personal cultivation, possession, and use of marijuana for medicinal purposes.

O'Connor seemed apologetic about the effects her decision might have:

Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.

In his solo dissent, Justice Thomas wrote:

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.

The majority holds that Congress may regulate intrastate cultivation and possession of medical marijuana under the Commerce Clause, because such conduct arguably has a substantial effect on interstate commerce. The majority's decision is further proof that the "substantial effects" test is a "rootless and malleable standard" at odds with the constitutional design.

But Thomas relied on the medical model to bolster his arguments:

... The Court of Appeals found that respondents' "limited use is distinct from the broader illicit drug market," because "th[eir] medicinal marijuana ... is not intended for, nor does it enter, the stream of commerce." Raich v. Ashcroft, 352 F. 3d 1222, 1228 (CA9 2003). If that is generally true of individuals who grow and use marijuana for medical purposes under state law, then even assuming Congress has "obvious" and "plain" reasons why regulating intrastate cultivation and possession is necessary to regulating the interstate drug trade, none of those reasons applies to medical marijuana patients like Monson and Raich.

Wow, to hear a Supreme Court Justice say that equal treatment under the law doesn't apply!!!

California's Compassionate Use Act sets respondents' conduct apart from other intrastate producers and users of marijuana. The Act channels marijuana use to "seriously ill Californians," Cal. Health & Safety Code Ann. §11362.5(b)(1)(A) (West Supp. 2005), and prohibits "the diversion of marijuana for nonmedical purposes," §11362.5(b)(2).4 California strictly controls the cultivation and possession of marijuana for medical purposes. To be eligible for its program, California requires that a patient have an illness that cannabis can relieve, such as cancer, AIDS, or arthritis, §11362.5(b)(1)(A), and that he obtain a physician's recommendation or approval, §11362.5(d). Qualified patients must provide personal and medical information to obtain medical identification cards, and there is a statewide registry of cardholders. §§11362.715-.76. Moreover, the Medical Board of California has issued guidelines for physicians' cannabis recommendations, and it sanctions physicians who do not comply with the guidelines. See, e.g., People v. Spark, 121 Cal. App. 4th 259, 263, 16 Cal. Rptr. 3d 840, 843 (2004).

This class of intrastate users is therefore distinguishable from others. We normally presume that States enforce their own laws, Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795 (1988), and there is no reason to depart from that presumption here: Nothing suggests that California's controls are ineffective.

Oh, really? :-)

No one argues that permitting use of these drugs under medical supervision has undermined the CSA's restrictions.

On the contrary, I'd argue that the use of these drugs under "medical" supervision undermines CSA's restrictions, morally speaking. The majority was right on that one -- there cannot be "medical" or other exceptions. But neither side is willing to go so far as to end the war on drugs.

Even Thomas was swayed by the utilitarianism -- he just qualified it with the medical model:

But even assuming that States' controls allow some seepage of medical marijuana into the illicit drug market, there is a multibillion-dollar interstate market for marijuana. Executive Office of the President, Office of Nat. Drug Control Policy, Marijuana Fact Sheet 5 (Feb. 2004). It is difficult to see how this vast market could be affected by diverted medical cannabis, let alone in a way that makes regulating intrastate medical marijuana obviously essential to controlling the interstate drug market.

Thomas concludes:

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 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.

Ah, now you understand!!!

So the side which has historically been more inclined to support states' rights against federal intrusion, used the medical model for its arguments, and supported the federal war on drugs as much as it possibly could, personally if not legally. It was as though they were saying: "We don't like the federal government intruding into states, and we cannot really find a legal reason to support it, but we sincerely support the federal drug war, and will do everything we can to preserve it. As long as you can make it a medical exception, we're fine with leaving it up to the states, no matter how much it undermines the rule of law."

The majority opinion is more consistent, both internally and with past behavior, even though it sanctions federal power that the Tenth Amendment, and common sense, should not allow.

Neither side recognized an individual's right to drug use, or the right of an individual to engage in commerce without state and federal interference. The Justices tried to second-guess the effects of state and federal drug laws on the market, to justify their legal reasoning, and supported preserving the federal war on drugs as much as their sense of the law would allow. Liberty lost.

Other analyses of this ruling can be found Here, Here, Here, and Here.


At 10:59 AM, Blogger Sheldon Richman said...

Lee, thanks for the excerpts from the opinions. I'm not surprised, yet I am still disappointed. I abhor the antilibertarian nature of medical-marijuana laws while at the same time condemning the intrusion by the central government. What is one to do when government defines its own powers? This is surely another blow to the utopian idea that government can be limited.


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