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High Court High Anxiety
The Supreme Court's medical-marijuana case could send federalism up in smoke.


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Jonathan H. Adler

Angel McClary Raich is seriously ill. Diagnosed with an inoperable brain tumor and several complicating conditions, Raich found traditional medical treatments to be of little use. Having exhausted every legal alternative, her doctor recommended that she try marijuana–and it worked. Like many individuals suffering from chronic pain or loss of appetite, Raich found that marijuana alleviated her symptoms substantially. Yet to continue with this treatment, Raich, and those who supply her with marijuana free of charge, had to break federal law. Under California law, Raich can possess and use marijuana pursuant to a doctor’s prescription or recommendation. Yet according to the federal government, even such minimal marijuana possession approved by a doctor remains illegal.

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Fearing potential prosecution, Raich went to federal court seeking a declaratory judgment that, among other things, the federal government lacks the constitutional authority to prohibit simple marijuana possession for personal medical use. Represented by noted libertarian law professor (and sometime NRO contributor) Randy Barnett, Raich argued that, at least as applied to her situation, the federal Controlled Substances Act (CSA) is unconstitutional. This week, the Supreme Court heard oral arguments in her case, Ashcroft v. Raich. At stake is more than California’s effort to legalize the medical use of marijuana. A decision for the federal government could send federalism and the constitutional doctrine of enumerated powers up in smoke.

On behalf of Raich, Professor Barnett argued that the cultivation and possession of marijuana “solely for the personal medical use of seriously ill individuals, as recommended by their physician and authorized by State law” is simply beyond the reach of federal power. Under our constitutional structure, states retain “broad powers to define criminal law, regulate medical practice, and protect the lives of their citizens.” Federal power, on the other hand, is limited to the specific grant of enumerated powers in the Constitution, and does not reach mundane questions of criminal law. No matter how worthy the purpose of a given federal statute, it remains invalid if it exceeds the constitutionally proscribed bounds.

The federal government maintains that it has the power to prohibit the possession of any and all drugs, even in infinitesimal amounts, and therefore that California’s effort to legalize medical marijuana is preempted by federal law. Under the CSA, it is a federal crime to possess “schedule I” drugs like marijuana, with or without a doctor’s prescription. Like most federal regulatory statutes, the CSA was enacted pursuant to Congress’s power to “regulate commerce…among the several states.” As currently understood, this clause grants Congress the broad power to regulate commercial enterprises and other activities that have a “substantial effect” on interstate commerce. There is little question that this entails the power to regulate the production, distribution, and sale of pharmaceuticals, particularly insofar as medical markets are of national scope. Congress can empower the Food and Drug Administration to set conditions on the sale of approved pharmaceuticals and may authorize the Drug Enforcement Agency to arrest those who buy and sell drugs contrary to federal law.

In this case, the federal government also maintains that it can prohibit the simple possession of a drug for medical purposes, even when authorized and regulated by a validly adopted state law, and even if conducted in a wholly noncommercial fashion. Such power, the federal government asserts, is necessary to maintain a comprehensive federal regulatory system for the use and distribution of drugs. Moreover, even the mere possession of drugs can “substantially affect” interstate commerce, as there is a vibrant, albeit illegal, interstate drug market.

This argument proves too much. Under the government’s reasoning there is no activity beyond Congress’s grasp–a position the Supreme Court has repeatedly rejected over the past ten years. Essentially, the Justice Department maintains that the power to adopt broad economic regulatory schemes necessarily entails the power to reach the most inconsequential, noncommercial conduct that occurs wholly within the confines of a single state. Even at the height of federal power during the New Deal, the Supreme Court never authorized an assertion of federal power as expansive as is at issue here. Should the Court uphold the assertion of federal power in this case, constitutional limitations on the exertion of enumerated federal powers could well disappear.

Under the federal government’s logic, Congress could enact an omnibus child-care statute, regulating the care and feeding of children and infants in private homes, because child care is often an economic enterprise and the federal government could assert an interest in regulating the market for child-care services. Not even the infamous case of Wickard v. Filburn, in which the Supreme Court upheld Congress’s power to regulate the planting of wheat on an individual farm, reached this far. At least farmer Filburn was engaged in economic activity–planting wheat as part of a larger economic enterprise (his farm). Angel Raich’s marijuana possession, however, lacks even this passing connection to economic activity. It was on this ground that the Supreme Court struck down federal statutes prohibiting gun possession in or near schools and penalizing gender-motivated violence. In neither case could the activity be remotely considered “economic”–nor can the local marijuana possession at issue in Ashcroft v. Raich.

The importance of the case can be seen in the line-up of amicus briefs supporting Raich’s case. Noted conservative legal scholars, including former Reagan and Bush Assistant Attorney General Douglas Kmiec and former Bush solicitor general Charles Fried, signed or authored briefs urging the Court to recognize that federal power cannot reach this far. Several states have done the same. Few groups not directly involved in antidrug efforts have lined up on the Justice Department’s side.

Some drug warriors fear that a victory for Raich could hamper federal antidrug efforts because drug possession is much easier to prove than is the intent to distribute. Yet possession of small amounts of marijuana is rarely prosecuted under federal law as it is. State and local governments are responsible for most enforcement of low-level drug crimes. If petty possession needs to be prosecuted, it can be under state law. Just as the Supreme Court’s invalidation of the Gun Free School Zones Act did not produce a flood of firearms in the nation’s schools, striking down the application of federal law in this case won’t end marijuana prohibition. Even in California, marijuana possession for anything other than medical use remains illegal. If arrested, a medical-marijuana user bears the burden of proving that it was for medicinal use.

Alabama solicitor general Kevin Newsom filed a particularly powerful brief on behalf of several states with strong antidrug policies, maintaining that California’s medical-marijuana law poses no threat to those states, such as Alabama, where marijuana remains illegal. Alabama prosecutes drug crimes vigorously, including pot possession, and has some of the harshest drug-possession penalties in the country. Yet Alabama and other states intervened to “support their neighbor’s prerogative in our federalist system to serve as ‘laboratories for experimentation.’” While agreeing with drug prohibitionists that California’s medical-marijuana policy is “profoundly misguided,” Alabama argued that upholding the federal prosecution of medical-marijuana users is a greater threat than letting sick people get high in California pursuant to a validly enacted state law.

From the earliest days of the Republic, the Supreme Court has emphasized that the Constitution creates a federal government of “limited and enumerated powers.” There is no federal “police power” authorizing Congress to cure every injustice or right every wrong. Rather, the federal government was entrusted with those limited and discrete powers necessary for national cohesion. Matters of truly national import–matters that cannot be handled by state and local governments acting alone or in concert–are entrusted to the federal government. As made explicit in the Constitution’s texts, all others powers remain in the hands of the states and the people.

Despite its apparent importance to drug warriors, Ashcroft v. Raich is not about medical marijuana or drug prohibition. Nor is it about the wisdom, or lack thereof, of allowing chronically ill individuals to smoke weed for medicinal purposes. Rather, it concerns the limits of federal power under the Constitution. Federalism does not play favorites. It limits the scope of federal power to pursue liberal and conservative ends alike. If a majority of the Court remembers this lesson, Angel Raich will get to keep her medicine. More important, the nation will keep the constitutional limits on federal power.

Jonathan H. Adler is an associate professor and associate director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. He is an NRO contributing editor.



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