POT LUCK

A Victory For Federalism

Roscoe Filburn and Diane Monson both got into trouble with the federal
government because of plants they grew. The future size and shape of that
government hinges on whether those plants were any of its business, and, if
so, why. Filburn, an Ohio farmer, grew 23 acres of wheat, 12 more than he
was allowed under the Agricultural Adjustment Act. Most of it stayed on his
farm, where he milled it into flour for his family, fed it to his
livestock, and used it to plant the next year's crop. In 1941 Secretary of
Agriculture Claude Wickard fined Filburn for his excessive self-reliance.

Monson, a California office manager and bookkeeper, grew six marijuana
plants, six more than she was allowed under the Controlled Substances Act.
She planned to use the cannabis to relieve severe back pain and muscle
spasms caused by a degenerative spine disease, as permitted under
California's Compassionate Use Act. In 2002 agents of the Drug Enforcement
Administration raided her home and seized the plants.

Filburn challenged Wickard's penalty in federal court, arguing that the
Constitution did not give the federal government the authority to tell him
how much wheat he could grow on his own land for his own use. The Supreme
Court disagreed, saying Congress was legitimately exercising its power to
regulate interstate commerce.

After all, Filburn might decide to sell the wheat, and even if he didn't,
he reduced overall demand by growing his own. In the aggregate, the Court
reasoned, growing wheat for home consumption could have "a substantial
economic effect on interstate commerce."

For more than half a century Congress has used this expansive reading of
the Commerce Clause as a license to legislate on just about any subject it
likes, gradually erasing the crucial constitutional distinction between
state and federal powers. Only recently has the Court begun to suggest that
the Commerce Clause is not infinitely elastic, and it still has not
revisited Wickard v. Filburn. So when Diane Monson and another medical
marijuana user, Angel McClary Raich, sought an injunction to prevent the
DEA from seizing their cannabis or arresting them, they had to convince a
federal court that their situation was different from Roscoe Filburn's in a
way that mattered. In a case that suggests both the promise and the limits
of the Supreme Court's recent Commerce Clause decisions, they succeeded.

On December 16, the U.S. Court of Appeals for the 9th Circuit ruled that
the Controlled Substances Act "is likely unconstitutional" as applied to
Monson and Raich, overturning a district court's refusal to grant them a
preliminary injunction. The 9th Circuit concluded that growing marijuana
(or obtaining it for free from others, as Raich does) for one's own medical
use "is not properly characterized as commercial or economic activity." It
added that any impact on interstate commerce would be "attenuated."

This is the third case this year in which the 9th Circuit has tried to
define the boundaries of the Commerce Clause. Each decision has been
narrow: The first involved child pornography that never crossed state lines
and was not intended for distribution; the second dealt with homemade
machine guns that met the same criteria; and the most recent one is limited
to "the intrastate, noncommercial cultivation and possession of cannabis
for personal medical purposes as recommended by a patient's physician
pursuant to valid California state law." But taken together, these rulings
help revive the idea that the Commerce Clause is not a blank check. They
also show that "federalism is not just for political conservatives," as
Monson and Raich's attorney, Boston University law professor Randy Barnett,
put it. At the same time, the cases show how tricky it is to enforce limits
on federal power without reconsidering the "substantial effects" doctrine
exemplified by Wickard.

The dissenting judge in Monson and Raich's case argued that growing
marijuana for your own medical use is no less "economic" or "commercial"
than growing wheat to feed your family. He has a point. Like Filburn's
wheat, Monson's marijuana could be sold, and in any case growing your own
medical marijuana affects the overall demand for cannabis (and possibly for
pharmaceutical substitutes).

The constitutional argument for letting the DEA seize Monson's marijuana is
ridiculous, but it's not indisputably more ridiculous than the
constitutional argument for letting the Department of Agriculture fine
Filburn. When the law is a joke, it's hard to predict which arguments the
courts will take seriously.