California Focus: Constitution has no cannabis clause

April 05, 2007

Gary Galles, OpEd, Orange County Register (CA)

Angel Raich, whose doctor contends that marijuana is the only thing keeping her alive, can face federal prosecution for taking it, according to a 9th U.S. Circuit Court of Appeals panel's ruling last month.

Forcing someone in chronic pain and dire health to choose between taking necessary medicine and criminality is appalling. But it is the result of the Supreme Court's 2005 ruling in Ashcroft v. Raich, which allowed federal charges against medical marijuana users in states where it was legal. That, in turn, originated in mistreatment of the Commerce Clause, tortured from its narrow original purpose into federal authority so broad that some law schools call it "the everything clause."

Medical marijuana both grown and used in California is not interstate commerce. As 9th Circuit Judge Harry Pregerson recognized in the ruling that the high court overturned in Ashcroft v. Raich, "The cultivation, possession and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized by commercial or economic activity," so that federal drug laws do not override state laws. Despite the absence of interstate commerce, however, the Commerce Clause is the sole basis for the holding that Washington can override California's medical marijuana law.

The Commerce Clause arose to prevent states from imposing duties on goods from other states, by allowing only Congress to regulate (with its traditional meaning of "to make regular" or "to remove impediments") interstate commerce. But it did not create a federal power to also control every aspect of life not involving interstate commerce.

In the Federalist Papers, Federalist 11 terms it not a grant of federal power, but a "prohibitory regulation, extending … throughout the states." Federalist 42 describes its purpose as "the relief of the States which import and export through other States, from the improper contributions levied on them by the latter." Federalist 45 cemented its narrow scope: "The powers delegated by the proposed Constitution to the Federal Government, are few and defined. ... 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 prosperities of the people; and the internal order, improvement, and prosperity of the State."

This stringent constraint on federal power made the Commerce Clause one "few oppose, and from which no apprehensions are entertained."

Despite our founders' intent, courts have transformed this ban of state restrictions on trade into a justification for virtually any federal dictate, gutting the 10th Amendment. While it was only used to overturn state restrictions on interstate commerce for almost a century, it has since been reinterpreted to justify federal restrictions on almost anything, with the death blow coming in Wickard v. Filburn, in 1942.

Wickard eliminated virtually all limits on federal power under the Commerce Clause: "Even if appellee's activities be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." That is, federal power to regulate interstate commerce extended to banning (the opposite of "removing impediments") production (not commerce) in a single state (not among states). Anything judged to have even distant or indirect effects became fair game for the feds.

Under the Wickard standard, even the most tenuous potential connection between medical marijuana and interstate commerce justifies federal supremacy, according to the Supreme Court. That is why the only real hope for Angel Raich, a seriously ill mother of two from Oakland, is returning to Judge Pregerson's finding that "this limited use is clearly distinct from the broader illicit drug market," and eliminate the Commerce Cause rationale for federal jurisdiction.

In the 1995 Lopez ruling, Chief Justice Rehnquist wrote "If we were to accept the government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate." That same Commerce Clause interpretation also applies to medical marijuana. Under any reasonable interpretation, it leaves medical-marijuana laws to states. But instead, Angel Raich and others must suffer, so Washington can overstep its constitutional powers in one more area.

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GARY GALLES is a Pepperdine University law professor.

 

 




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