NOT ABOUT POT

THE SUPREME COURT'S decision Monday in the case of Gonzales v. Raich
is a defeat for advocates of the medical use of marijuana, because the
court ruled that federal drug laws can be enforced against patients
even in states that would permit them to light up. But the true
importance of Raich has nothing to do with drugs; it relates rather to
the balance of power between the federal government and the states.

The government's crusade against medical marijuana is a misguided use
of anti-drug resources; that doesn't mean it's unconstitutional. A
Supreme Court decision disallowing federal authority in this area
would have been a disaster in areas ranging from civil rights
enforcement to environmental protection.

The Constitution's commerce clause, which provided the foundation for
the court's ruling in this case, is the foundation of the modern
regulatory state, underpinning since the New Deal huge swaths of
federal law: worker protections, just about all federal environmental
law, laws prohibiting racial discrimination in private-sector
employment. Over the past decade, however, the court has tacked away
from its most expansive vision of national power, emphasizing that the
commerce power is not unlimited.

The court said, for example, that Congress can't use the clause to
legislate against sexual assaults or to regulate gun possession near
schools.

That made sense; without some outer bound of the commerce power,
Congress would have authority over anything. But the court's recent
reconsideration of the commerce clause carried dangers, too. Limit the
legislature too much and Congress lacks the power to run a modern
country whose national policy is necessarily more ambitious than it
was in the 18th century.

The plaintiffs in Raich , patients who regard pot as essential
medication for their conditions, contended that because their use of
the drug is noncommercial and within a single state that tolerates
medical marijuana, the federal government lacked the power to stop
them. This may seem like an attractive principle, but consider its
implications. Can Congress protect an endangered species that exists
only in a single state and may be wiped out by some noncommercial
activity? Can it force an employer who operates only locally to
accommodate the disabled?

Justice John Paul Stevens, writing for the court, emphasized the
critical principle that if Congress enacts a regulation aimed at "the
interstate market in a fungible commodity" -- in this case drugs --
"[t]hat the regulation ensnares some purely intrastate activity is of
no moment." Justice Antonin Scalia reached the same conclusion for
slightly different reasons.

The result is a six-justice majority that stands strongly against a
revolutionary approach to commerce clause jurisprudence. While
questions remain, the importance of this cross-ideological statement
is enormous -- even if it means the Justice Department can continue
harassing sick people.