Federalism Wins

NINTH CIRCUIT GETS MEDICAL-MARIJUANA RIGHT

In a single landmark opinion, the Ninth Circuit Court of Appeals has
struck a blow both for those people whose suffering requires them to
use medical cannabis and for the constitutional principle of
federalism. Tuesday's decision in Raich v. Ashcroft -- a victory for
my clients -- proves that federalism is not just for political
conservatives. The Court found that because the cultivation,
possession, and use of medical cannabis was a completely non-economic
activity and too attenuated from interstate commerce, applying the
federal Controlled Substance Act to this conduct exceeded the power of
Congress under the Commerce Clause.

That should surprise no one. Earlier this year, in U.S. v. McCoy, the
Ninth Circuit held that federal anti-child-porn laws were
unconstitutional as applied to a single photograph taken by a parent
that was not intended to be sold or traded. Just a few weeks ago, in
U.S. v. Stewart, the court ruled that mere manufacture and possession
of a completely homemade machine gun, not intended to be sold or
traded, was constitutionally outside the reach of federal gun laws. In
both these cases, the Ninth Circuit found that the power of Congress
over "commerce...among the several states" simply did not extend this
far.

In our federal system, these activities are subject to state
regulation and prohibition, provided state laws do not unreasonably
infringe upon liberty (as the Supreme Court held last spring in the
case of Lawrence v. Texas, striking down a state prohibition on sex
between same-sex couples). The photo in McCoy and the machine gun in
Stewart were both subject to state laws.

In Raich, however, California had chosen to legalize the cultivation,
possession, and use of medical cannabis (marijuana) for medical
purposes in the interest of public health. Indeed, another of my
clients, the Oakland Cannabis Buyers Cooperative, whose case is now
pending before the Ninth Circuit, is the officially designated agent
of the City of Oakland.

This is what federalism is supposed to be all about. Provided
individual rights are protected, states should be free to experiment
with different mixes of regulations and prohibitions. That way, we can
witness the different results and reach conclusions on which policies
are preferable. And those individuals who object strongly to a
particular policy can move to another state where the policy is
different. With the one-size-fits-all national approach, all Americans
are captives of the policy choices of Congress, unless they leave the
land they love.

The benefits of federalism are accomplished by holding Congress to its
enumerated powers, in this case the power over interstate commerce
granted it by the Commerce Clause. In two controversial opinions, U.S.
v. Lopez (1995) and U.S. v. Morrison (2000), the Supreme Court found
- -- for the first time since before the New Deal -- that Congress had
exceeded this power when it enacted the Gun Free School Zones Act and
a portion of the Violence Against Women Act. Both cases were 5-4
rulings by the more conservative justices. Both rulings have drawn
heavy fire from the academic left. Neither has been enthusiastically
applied by the lower federal courts, which usually attempt somehow to
distinguish between them.

It is supremely ironic, therefore, that the San Francisco-based Ninth
Circuit, much maligned by conservatives, is the court of appeals that
is taking the Supreme Court's new Commerce Clause jurisprudence the
most seriously. This medical-cannabis case illustrates that federalism
is a doctrine that provides benefits across ideological lines. If this
case eventually goes to the Supreme Court, we will learn whether the
more conservative justices who developed this doctrine have the
courage of their convictions when it applies to activities of which
they may disapprove. We will also see whether the more liberal
justices will put their disdain for Lopez and Morrison above the
commitment to stare decisis, which would enable them to do justice by
letting California protect the liberty of suffering persons to
alleviate their distress, free of interference by the federal government.