Rebirth of Reason


Ashcroft v. Raich
by Jonathan R

  In a 1996 referendum, California’s voters passed Proposition 215, codified as the Compassionate Use Act (C.U.A.). The C.U.A. legalized medical marijuana for seriously ill Californians, thus placing state law in direct conflict with federal law, the Comprehensive Drug Abuse Prevention and Control Act, or the Controlled Substances Act (C.S.A.). The C.S.A. classifies marijuana as a Schedule 1 drug that is unqualifiedly illegal unless part of an F.D.A. study. While we may argue for the relevance of the constitution’s supremacy clause or of individual rights, the instant issue before the U.S. Supreme Court is whether the C.S.A. exceeds the power of Congress under the commerce clause.
Since the New Deal, the commerce clause has increasingly subsumed all sublunary matters. Finally, in U.S. v. Lopez (1995), and as affirmed in U.S. v. Morrison (2000), the Court shouted “Stop!,” and returned state concerns to the states. So radical was this revolution that the commerce clause now must pertain to commerce. Similarly, the regulated activity must bear a “substantial relation” to commerce, via either its “channels” or “instrumentalities.” This is not the case in Ashcroft v. Raich, which arose in 2002 when D.E.A. agents seized six medical cannabis plants in northern California.
While two caregivers grow Raich’s marijuana for her and codefendant Monson grows her own, both parties do so entirely within the borders of a single state, using supplies (soil, water, nutrients, growing equipment, lumber) originating solely from or manufactured in that state. The medicine is grown solely on the recommendation and under the care of doctors, solely for, and used solely by, individuals of a specific minority, for strictly circumscribed purposes. Quantity and type must also correspond to the patient’s physician-defined needs, so that possession for any reason outside this heavily regulated medical context remains illegal. Indeed, just as the Court’s invalidation of the Gun Free School Zones Act in Lopez did not trigger a flood of firearms in America’s schools, so invalidating the Controlled Substances Act here will not make America Holland. Raich is miles and years away from pot prohibition.
Thus, the effect of medical marijuana on interstate commerce is far from obvious. Though the C.S.A. blurs the distinction between intra and inter-state commerce, any interstate connection is trivial (for the reasons above), incidental (because the medicine is intended to avoid interstate traffic), and, perchance it happens, wholly indirect.
The appellant counters that Raich is “essentially indistinguishable” from Wickard v. Filburn (1942), whereby the Court held that the commerce clause allowed Congress to regulate the wheat a farmer cultivated exclusively for his family. Wickard makes the focal point not an individual’s activities, but how the pertinent activities of all individuals aggregate. Related to Raich, this means that marijuana, which is fungible, exists within a significant, if illegal, national market.
But try as the feds may to blur the distinction between what’s economic and what’s not, they could not fool the Ninth Circuit, which concluded that the “limited medical use of marijuana[,] as recommended by a physician[,] is clearly distinct from the broader illicit drug market.” Angel Raich and Diane Monson are not Cheech and Chong. They are two law-abiding citizens who use pot not to get wasted but to get well.
Second, Wickard’s aggregation principle applies only to economic activity, which, however negligibly, at least farmer Wickard engaged in. Raich’s cannabis utterly lacks this nexus. In fact, as the ninth circuit found, medical marijuana simply does not enter the stream of commerce. Specifically, there is no “exchange” sufficient to make the transaction commercial. No money changes hands between grower and recipient, growers do not compete for higher prices, the recipient does not comparison shop, no disparate markets are affected; the activity fails to include the essential elements of commerce. As such, following Morrison’s “reject[ion]” that under the commerce clause “Congress may regulate noneconomic . . . conduct,” Wickard is inapplicable to Raich.
Furthermore, even at the height of federal power, the Supreme Court never authorized a commerce clause analysis as expansive as the one Washington now seeks. To uphold such an analysis would tear down the attenuated limitations the Court has scrupulously crafted over the past 200-plus years.
Another distinction the C.S.A. blurs is that between what’s local and what’s national. As Justice Louis Brandeis explained in 1932, that Washington not encroach on Sacramento is imperative, because it allows the latter to act as a “laborator[y]” to “try novel . . . experiments without risk to the rest of the country.” Yet the C.S.A. forecloses the states from such insulated innovation—in an area to which they lay claim by both history and expertise. Adds the Cato Institute: when “a remote sovereign on the far side of the continent. . . . peremptorily denie[s]” “a thoughtful act of direct state democracy,” federalism is dishonored and respect for decentralized judgment is abandoned. Indeed, fifty-six percent of voters approved the C.S.A.—a number greater than that which either presidents Clinton or Bush père received in California—and, for that matter, most other elected officials.
Americans have traditionally and properly looked to Congress, not the courts, to design public policy. Yet despite decades of mounting scientific evidence in favor of decriminalizing if not legalizing medical cannabis, as the governments of Holland, Canada and England have recently done, Congress continues to deprive people in great physical pain of readily available, cheap and practically innocuous medical treatment. This leaves advocates with few alternatives save referendums and judicial activism. To date, they have successfully pursued both. (Indeed, depending on how you count, California is one of ten, eleven or twelve states that permit marijuana for medical use under limited circumstances.)
But whatever the means, the end is plain: people should not suffer unnecessarily. Both appellees’ doctors say their patients have tried virtually all other legal alternatives, that all are either ineffective or result in intolerable side effects, and that, for Raich, foregoing marijuana may be fatal. In the meantime, myriad illnesses wrack her with daily pain and drain all pleasure from her life, leaving only misery and suffering. Until she found pot. She says it’s “the only thing that is keeping me going.” Don’t rob that from this wraith-like thirty-eight-year-old—and from countless, nameless but not faceless others like her, whom their respective states consider not common criminals, but legally protected medical patients.

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