CAN FEDERAL LAW BAN STATE-SANCTIONED USED OF MEDICAL MARIJUANA?

The Supreme Court Hears Oral Argument on a Possible California
"Medical Marijuana" Exception to the Federal Controlled Substances
Act

On Monday, November 29, the Supreme Court heard oral argument in
Ashcroft v. Raich. The case asks whether the federal Controlled
Substance Act can constitutionally trump state law that permits the
medical use of marijuana.

Significantly, California state law expressly permits the medical use
of marijuana. And the court below, the U.S. Court of Appeals for the
Ninth Circuit, held that the plaintiffs were likely to succeed on the
merits, because the issue was properly left to the states - not
Congress. Why? Because the law regulates the intrastate medical use of
marijuana, not interstate commerce. Click here to find out more!

This case is, of course, about medical marijuana - and thus it has
sparked debate about the drug's importance, or lack thereof, in
medical treatment, or in making illness bearable. Headlines,
unsurprisingly, have focused on the medical marijuana issue - and
focused on it from a policy perspective: Is it good or bad to permit
medical marijuana?

But the Court's job is not to make policy, but to interpret the
Constitution. And this case is fundamentally about the basic
constitutional doctrine of federalism - the relationship between the
federal government and the states.

Lately, federalism debates have tended to be passionate and political.
But Raich could open the way to a more reasoned federalism debate. The
Court ought to rule that Congress's power does not extend this far,
and that California can do as it wishes when it comes to prescribed,
regulated, intrastate medical marijuana.

That happens to be a victory for the left. Other federalism victories
happen to be victories for the right. But federalism itself isn't a
partisan political doctrine; it's a basic constitutional doctrine.

The California Law, and the Federal Law

To see the federalism issue, it's important first to focus on the
specifics of the statutes at issue here.

The federal Controlled Substances Act generally prohibits the use of
marijuana, period - with no exceptions for medical marijuana, small
amounts grown for personal use to treatment illnesses like multiple
sclerosis.

The California law specifically permits the cultivation, possession,
and use of marijuana, but only when it is obtained in-state,
prescribed by a physician, and used solely for medical purposes. And
the use must be accordance with all other California laws. (For
example, driving under the influence of marijuana remains a crime in
California--even if the marijuana was taken for medicinal purposes.)

The Key Commerce Clause Precedent: Wickard v. Filburn

The key Supreme Court precedent here is an old classic: Wickard v.
Filburn. In that case, a farmer planted and grew wheat on his farm
solely for his family's consumption. But the federal government argued
that federal limitations on the growing of wheat applied
nonetheless.

The Court ruled for the federal government. It reasoned that if many
farmers planted, grew, and used wheat for their own families
intrastate, on their own farms, that would have an effect on
interstate commerce, since home production and consumption affect the
market for wheat. Thus, Congress had the power under the Commerce
Clause to regulate.

Wickard's logic, though, seemed to prove too much. Did it mean that
the Commerce Clause authorized Congress to regulate any intrastate
activity -- no matter how trivial its impact on the national economy -
if there would be a substantial effect on the economy if lots of
people did the activity?

The current Court has wrestled with Wickard's logic, but has never
overruled it. It's unlikely it will do so in Raich. Nevertheless,
Raich may give the Court a welcome opportunity to put some limits on
Wickard's expansive logic.

How Wickard's Facts Are Different From Those of Raich

Here's why Wickard and Raich are different:

First, no state law at all was at issue in Wickard - let alone a state
law that, as in Raich, expressly permitted the activity at issue. The
farmer in Wickard argued his action was too trivial to come within
federal law - not that state law allowed it. Thus, federalism was not
even at issue. No legislature had vetted the issue and determined that
the law was needed to serve the public good, as has happened in
California with medical marijuana. That is an enormous difference.

Second, the answers to the "What if everyone else did it?" question
are different in Wickard and Raich. Millions of Americans have room
for a tiny wheat crop in their own backyards. But how many can obtain
a medical marijuana prescription according to California's procedures?
Unless doctors are unscrupulous - and if they were, they could and
should be prosecuted - very few.

Third, the national economy is left unaffected by this intrastate
activity. What California has done is to create a wholly in-state
independent market for medicinal marijuana that is separate from the
illegal recreational drug trade the federal government has every power
to regulate. A heavily regulated market in medicinal marijuana has
been established within California's state boundaries. If California
has its way, as it should, there will be a small legal intrastate
medical marijuana market - meaning those who need medical marijuana
will no longer have to get it on the black market. The logical result
would be that medical marijuana would diminish the national marijuana
black market. That is consistent with the federal policy, even if the
federal government has no business regulating intrastate activity that
is permitted because the state has enacted a law to serve the general
healthy, safety, and welfare, which constitutes their primary arena
for the exercise of sovereignty.

In sum, given all these significant distinctions between Wickard and
Raich, the Court could easily hold that while Congress did not exceed
its Commerce Clause power by regulating home wheat use, it did exceed
its Commerce Clause power by regulating intrastate medical marijuana.

As I explained in a prior column, in far more recent precedents than
Wickard, the Court has tried to do what should have been done all
along: To recognize that Congress's powers are enumerated for a
reason: Because unlimited power inevitably leads to tyranny. There is
nothing about Congress that alters this political fact.

The Neutrality of Federalism: Not A Creature of the Right, or of the Left

If the Court says - as it should it if it is to be consistent with
prior precedent - that the Controlled Substances Act cannot apply to
intrastate, doctor-prescribed medical marijuana, the opinion will be
an interesting animal: A federalism victory for the left.

The truth is that federalism is neither left nor right politically;
rather, it is a politically neutral structural principle embedded in
our Constitution. Many law professors - such as Reva Siegel and Robert
Post -- have claimed that federalism is inherently a political tool
for the right and, even more indefensibly, that the Supreme Court's
federalism jurisprudence is judicial activism gone wild. Apparently,
they reached this conclusion because conservative Justices pioneered
the recent federalism revival. (The pro-federalism Justices include
Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice
Kennedy, and Justice Thomas.)

But of course, the left can employ federalism too. And now, more than
ever - when Washington is in the hands of the Republicans. The
Democrat agenda is stalled at the federal level. Guess what? If
federalism is permitted to flourish, it will now be pursued at the
state level, as it has been in California, and suddenly, federalism
will work for the left.

The most fascinating aspect of this case is that we can now see so
clearly how power determines policy. The Republicans came to
Washington on a "small government" mandate. But once they controlled
the White House and now the Congress as well, small government was no
longer a motivating concern. In this case, the Bush Administration's
Department of Justice has used federal power to try to enlarge the
conservative agenda of limiting the use of illegal drugs - despite the
fact that it means running roughshod over the states' power to make
laws concerning the general welfare. And it's not the first time the
Ashcroft Justice Department has tried to quash a state law regulating
only intrastate conduct: It also went after Oregon to challenge its
liberal law on assisted suicide.

This political turnabout is just what the Framers would have
predicted. They wisely believed that no one who holds power can be
trusted to act in the larger public interest. Rather, the system must
provide checks to ensure that the individual's temptation to abuse
power is mitigated. We are familiar with checks such as judicial
review, and the bicameral legislature. But after Congress was
permitted plenary and unlimited power for decades, we are less apt to
see federalism as what it is: A powerful check and balance.

The wisdom of federalism lies not only in that function, but also in
its ability to keep issues that are best decided locally out of the
hands of a distant federal government.

Justice Brandeis imagined that federalism could render the United
States a set of fifty social experiments - with the best teaching
valuable lessons that would spread nationwide. Cases like Raich hold
out the possibility that his dream could become reality. How will we
really know if medical marijuana prescription limitations are
enforceable - or just an easy gateway for drugs to move into the black
market - until some state tries to enforce such limitations? Whatever
happens, we will all learn from California's experiment, just as
California is learning from the handful of other states that permit
medical marijuana use.

There is no better way for the citizens of the United States to
determine which social policies are beneficial, and which are not,
than to permit the states to experiment with their various laws. (As I
discussed in a previous column, marriage laws are no exception.)

The Supreme Court has been called all sorts of vile names for
reinvigorating the limits of federalism. This is its opportunity to
put to rest the lie that federalism will only serve conservative interests.