If the generation of “limited government” lawmakers freshly chosen to man the trenches in Washington wishes to be taken seriously, the butcher’s bill must include some of the social conservatives’ sacred cows.
Starting with the War on Drugs.
Many conservatives have long argued that the federal government is broadly empowered to prosecute the drug war under Congress’s authority over interstate commerce. In the name of the drug war, they have been willing to allow federal law-enforcement officers to prosecute seriously ill patients who use medical marijuana in compliance with their states’ laws.
Many of those same conservatives are now finding that the terrible, swift sword of expansive federal power that they endorsed in the name of drug prohibition has now been turned on them in the form of Obamacare’s individual mandate.
The Justice Department is defending Obamacare by asserting that a 2005 Supreme Court case, Gonzales v. Raich, permits such a broad reading of the Commerce Clause that the federal government can tell individual citizens that they have to buy health insurance.
The Raich case was about medical marijuana. Angel Raich, a resident of Oakland, Calif., used medical marijuana to deal with the debilitating pain caused by an inoperable brain tumor, a seizure disorder, and a life-threatening wasting syndrome. California law allowed her to do so, but the Drug Enforcement Administration claimed that the federal Controlled Substances Act (CSA) made no exception for those in Raich’s position.
The Raich case closed out a decade’s worth of rolling back the scope of Congress’s power. In 1995, the Court held in United States v. Lopez that the federal Gun-Free School Zones Act exceeded the limits of Congress’s ability to regulate interstate commerce. United States v. Morrison in 2000 invalidated a federal civil remedy for victims of intrastate gender-motivated violence. Raich reversed this pushback. By a six-to-three majority, the court held that the aggregation of individuals’ small-scale cultivation and consumption of marijuana in compliance with California law would substantially affect the market for the drug, a market that the federal government had outlawed.
Raich cemented the legal foundation for the individual health-insurance mandate that has so many conservatives outraged.
Not all states took Raich’s broad claims of federal power lying down. Deep blue California, Maryland, and Washington State filed an amicus brief contending that Congress had intended only to interdict large-scale drug traffickers, not to bar states from accommodating those in Raich’s position. The attorneys general of Alabama, Louisiana, and Mississippi, drug warriors tried and true, nonetheless objected to what they saw as an alarming disregard for federalism and state sovereignty. (Disclosure: The Cato Institute also filed an amicus brief.)