COMMERCE CLAUSE IS INFINITELY ELASTIC

Last week, the U.S. Supreme Court ruled 6-3 against state medical
marijuana laws, including Colorado's. The court's ruling was based on
the Commerce Clause of the U.S. Constitution, which states that "The
Congress shall have power ... To regulate Commerce with foreign
Nations, and among the several States ... "

But how does someone growing a plant at home for personal use become a
form of commerce "among the several states"? Nothing crossed a state
line, nor did money change hands. It appears to be neither commerce
nor interstate, so where does Congress get such authority?

This stretching of the Commerce Clause goes back to a 1942 case,
Wickard vs. Filburn. Wickard was the U.S. secretary of Agriculture,
and Filburn farmed in Ohio.

Under New Deal agricultural policy designed to limit production and
improve farm prices, Filburn could grow only a certain quota of wheat.
He exceeded that quota, but instead of selling the wheat, he fed it to
his own chickens. He was penalized, and he appealed the penalty partly
on the grounds that no interstate commerce was involved - the wheat
and chickens had never left his own property, let alone the state of
Ohio - so the federal Agricultural Adjustment Act did not apply.

The Supreme Court held that because Filburn's use of his own wheat to
feed his own chickens could affect interstate commerce - he might have
had to buy chicken feed from Kentucky if he hadn't grown his own in
Ohio - then Congress had the power to regulate it.

In general, the Supreme Court has since upheld almost any federal law
based, however loosely, on the Commerce Clause. This court made two
exceptions: In 1995, it struck down the Gun-Free School Zones Act
because gun possession near a school is not an economic activity. On
similar grounds, in 2000 it found against the Violence Against Women
Act.

So when the medical marijuana case reached the Supreme Court, it
seemed reasonable to expect that this court would rule that growing
your own medicine is not an interstate economic activity, and
therefore beyond the power of Congress.

But if you think about this, it becomes apparent that this affects a
vital element of interstate commerce. You're in pain, you grow some
medicine and take it, then you go about your life.

And in that process, Advertisement Click Here! you do not buy anything
from the immense pharmaceutical industry, which, in 1999-2000 spent more on
lobbying and other political persuasion than any other industry: $262
million, with $177 million going to 625 lobbyists (more than one for every
member of Congress), $65 million for ads and $20 million for campaign
contributions.

Imagine the dire economic consequences for congressional campaigns if
Americans quit feeding the pharmaceutical cash machine. And now that
it's totally empowered by the Supreme Court, our Congress can find new
ways to ensure that we perform our economic duties.

While it may be legal now to generate your own electricity with a
solar panel, Congress now has the power to outlaw that, since you
might have otherwise bought the electricity from a mercury-spewing
plant in Arizona.

Growing your own vegetables obviously affects the commerce of those
agribusiness campaign contributors in California and Illinois. Compile
your own computer's operating system, and you're affecting the
interstate commerce of the Microsoft monopoly. Walking or bicycling to
work instead of driving affects the income of multinational oil
companies, and is thus a matter of interstate commerce. So is just
about any other act of traditional American self-reliance.

Thus, the medical marijuana decision gives Congress the chance to pass
scores of new laws. As Justice Clarence Thomas put it in his dissent,
"If Congress can regulate this under the Commerce Clause, then it can
regulate virtually anything."

Given the tendency for this Congress to cater to anyone with a
bankroll, it's safe to predict that we will see it try to regulate
anything we use that might interfere with corporate profits, from
sewing machines to solar cells.