Pot and Federal Power

November 30, 2004

EDITORIAL, Washington Post

THE FEDERAL government's crusade against users of 'medical marijuana,' even in states that allow sick people to have the drug, is obnoxious. But a case argued before the Supreme Court on Monday is only superficially about pot and illness. At a deeper level, it is the latest test of Congress's power to regulate interstate commerce, the constitutional authority that underlies the modern regulatory state.

While it would be satisfying to see the court bat down the Justice Department's heavy-handed tactics, such a holding could be dangerous to civil rights enforcement, environmental protection and more.

Since the New Deal era, the Supreme Court has construed the Constitution's commerce clause broadly. Without such an understanding, Congress would have been unable to make federal laws requiring a minimum wage, protecting wetlands and prohibiting racial discrimination in private employment, to name a few examples. Recently the court began making clear that the authority is limited to issues that really have something to do with economics; so, for example, gun possession close to schools and sexual violence can't be regulated under the commerce clause. We sympathize with the notion of limits, without which Congress could make law on any subject it wished -- not what the framers of the Constitution envisioned. But limit the power too much, and Congress will be left without adequate tools to legislate in a modern country. The current case is an excellent illustration.

Federal drug laws unquestionably regulate interstate commercial activity; that is, the market for illicit drugs. But the plaintiffs in this case, patients who say that no other drug alleviates their pain, argue that such laws also criminalize noneconomic activity -- the growing and use of marijuana within a single state for personal, medical, noncommercial purposes. The plaintiffs consequently convinced the U.S. Court of Appeals for the 9th Circuit to block any enforcement against them by the federal government.

This reasoning may sound attractive, but don't be fooled. The court long ago held that a farmer who grew wheat for his own consumption could not escape farm laws passed under the commerce clause. To hold otherwise for drugs would be deeply destabilizing. Some endangered species protected by federal law, for example, exist only in a single state and can be threatened by noneconomic activities. The Supreme Court can't allow people to violate otherwise valid regulations because their specific violations are not economic in nature. We think Attorney General John D. Ashcroft ought to find better ways to spend his time and the nation's resources. But where Congress is regulating genuine commercial activity, such as the interstate market for marijuana, the court's deference to it should be nearly absolute.

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