Sanity's AWOL in war on drugs

December 01, 2004

Sidney Zion, Columnist, NY Daily News

The latest battle in the great War on Drugs showed up in the Supreme Court on Monday, with the feds arguing that if sick or dying people are allowed to use homegrown marijuana for their pain, the price on the streets will go down.

In the logic of the war department, this would have a terrible impact on interstate commerce, where, presumably, Congress has an interest in promoting the sale of marijuana.

If this strikes you as crazy, it's because you don't understand the law, the necessary reach of a government that is grounded on the Commerce Clause of the Constitution. We are talking now of the stuff of lawyers and judges, who, when it comes to drugs, display no immunity from going AWOL from reality.

First, the facts of the two cases out of California that the top court heard this week. One involved a woman with inoperable brain cancer, the other a woman whose severe back spasms require marijuana.

By referendum, California voters passed a law permitting the use of marijuana under a doctor's order to relieve a variety of medical ailments. Nine other states followed suit.

The federal drug enforcers answered by busting both women. The U.S. Court of Appeals in California ruled for them on the grounds their conduct did not fall within Congress' authority to regulate interstate commerce because this had nothing to do with any kind of commerce, much less interstate.

You might think the government would let cases like this pass or at least show benign neglect. We're not talking about legalization of narcotics here, just medicalization, just humanity.

But the War on Drugs has no interest in such sentimentality. This war is 90 years old with nothing to show but failure, combined with rampant corruption.

It doesn't matter. The more we lose, the more we spend. In the Supreme Court arguments, the government estimated that the marijuana market alone accounts for $10.5 billion a year - then asked the court to knock out California's law in the name of helping the war succeed!

The argument that homegrown pot had an impact on interstate commerce rests on a 1942 Supreme Court decision that allowed the feds to punish a wheat grower for withholding his home consumption from the Agriculture Department's regulations. The reason: If he hadn't used it for his family, he'd have bought it in the marketplace, thus raising the price of wheat, which Congress wanted.

Justice Anthony Scalia said he had always thought that case was a joke, but now he opined that it was the law. Scalia, who votes for states' rights except when he doesn't - see Gore vs. Bush - said that the old wheat ruling looked right to him now.

Students of Scalia, the sharpest man on the court, might have thought he could separate the wheat from the weed. But the politics of drugs has a way with the finest of minds, and according to reporters covering the court, the majority is going to overturn the California law.

I asked Yale Kamisar, the legendary law professor at Michigan Law School, what he thought about this apparent reliance by the court on the ancient wheat decision.

'I look at it this way,' he said. 'If they're right, the Congress can ban breast-feeding because it has an economic impact on the interstate sale of milk.'

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