April 23, 2005

Raich v. Ashcroft Still Pending

The medical marijuana case is still awaiting a decision from the Court. It was argued last November, so the Court has already waited longer than the average length from arguments to decision.

One sidenote of the issue is that 10 states have medical marijuana laws: California, Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington. Notice anything there? They're all about as far away from DC and the Southeast as you can get in this country. This doesn't include Montana, which passed a medical marijuana initiative just last November. Except for Idaho, the geographical cluttering is amazing.

It's interesting that partisan affiliation and population density don't seem to have an effect. Hawaii and California are reliably Democrat; Montana and Alaska are reliably Republican. California has the US' largest state population and some of our densest areas. Alaska is the 49th state in terms of population and has wide areas of extremely low density. It also spreads by climate: Arizona is hot and dry, Washington is wet, Alaska is freezing, Hawaii is tropical, etc. The most distinguishing feature - thanks to Maine - seems to be distance from the Southeast. (If not for Maine, then I would say being Western is the feature.)

Aside from that little tangent, this is a very multifaceted issue. The right side of the Court is going to be tempted to vote against it because it's marijuana. The moral and social implications of pot will skew the normal federalist impulses of the Justices. The left side of the Court is going to be tempted to vote against it because it's federalist. Federalism is not really their cup of tea and so they're likely to go against it. However, it would be possible to see left Justices go for it for the same reason the right Justices go against it - and vice versa. That's not considered likely by many observers, though.

So just how does it connect to federalism? Simple. In 1995, following the Republican Revolution and the 1994 Contract With America, a 5-4 majority on the Court found in Lopez v. US that Congress had over-applied its interstate commerce powers. This was the first such ruling since the New Deal. Specifically, the federal law about discharging firearms near schools was invalidated - since it's neither interstate nor commercial.

The feds argued that crime can affect the economy in an area and that school violence can affect education and therefore eventually impact the economy. The Court said "fuck no" and reasoned that if the feds got away with that line of reasoning, then there was no reasonable limit to "enumerated powers" from the Constitution. Since the Constitution did enumerate powers, that means there must be some powers intentionally not enumerated. So the law was struck down.

The problem with these recent matter is that the medical marijuana in question was grown and not sold. It's not commerce and it's not interstate because they're all Californians. The feds are saying it's interstate commerce because medical marijuana would, in effect, alter the pricing of illegal marijuana and affect the war on drugs in other states. Of course, this is about as ridiculous as the "school violence hurts education which hurts the economy" line. I mean, does the Interstate Commerce Clause really refer to intra-state non-commerce that might eventually change the price of illegally exchanged goods? I doubt such an expansive definition was really what the Constitutions means; with globalization, the Internet and the institution of nationwide media, practically anything can be argued to be interstate now.

Fortunately, Rehnquist already answered this question with Lopez. Congress is allowed, under the Interstate Commerce Clause to regulate the channels of commerce, the instrumentalities of commerce, and actions that substantially affect interstate commerce. Clearly neither the first nor second condition is satisfied - it's not sold, so it isn't commerce. It's hard to say that growing pot in your backyard and giving it to people with illnesses is going to substantially affect commerce, let alone interstate commerce. What's unanswered is whether "commerce" includes illegal activities. Certainly it would seem to elevate drug dealers to a more respectable plane if the Supreme Court calls selling drugs "commerce."

I like Randy Barnett's counter-argument (see the orals transcript) where he respondsto the roundabout link the government makes from personal growing to the drug market. In effect, he says that prostitution is an economic activity, but marital sexual relations are not. If we were to follow the government's line that market-affecting activities can be regulated to control commercial activities, then the government could regulate marital sexual relations to protect its regulatory regime against prostitution.

Of course, marital privacy is separately protected, but otherwise the comparison is the same; after all, if husbands had more sex in marriage, it's arguable that SOME of them would not use prostitutes or would resort to prostitution less. Naturally we would reject this invasion, because marital sex is not an appropriate way to regulate a commercial activity (assuming that illegal acts appropriately count as commerce).

With such a very weak connection to interstate commerce, the Court would betray the Lopez line of cases. By handing more power to the feds to define interstate commerce as "anything we want to regulate" a decision for the government in this case would seriously hamper both the implementation and reputation of Lopez.

Right now, Lopez has to deal with left-leaning people who think it's an excuse for right-wingers to stop legislation they dislike while allowing laws they agree with - conservative activism, in other words. If Raich were to go for the government, then Lopez would suffer in implementation because it would be even less clear just what the feds could and couldn't do. The lower courts were already having trouble following Lopez for several years after. Lopez itself is a fairly narrow standard, still giving broad leeway to the government. If it were to be further limited by a bad decision on this case, then we would see barely any grounds for limiting Congressional power under the commerce clause.

Those same critics who view the federalism revolution very skeptically are going to see themselves confirmed if the government wins this case. It would undermine the intellectual credibility of Lopez and cast it in a horrible light. It would appear to be at worst a self-serving piece of tripe that protects conservative issues like guns but not left-wing issues like marijuana. At best, it would look like a hiccup in the Court's history; a spin-off effect from the Gingrich types and the Republican Revolution that died a decade later under the burden of big-government Republicanism. More importantly, it would drop in the estimations of many writers, scholars and observers of the constitutional law scene. Lawyers and jurists espousing federalist ideas would be forced into the Lopez-Raich contradictions, even if they disagreed with the holdings.

In short, it would deal a serious blow to the federalism revolution, and cede ground back to the government-expansionists. Hopefully Scalia, Thomas, Kennedy, O'Connor and Rehnquist will see this and do something to protect Lopez. However, this is not very likely at all.

More likely, the Court will be 8-1 or 9-0 to hold for the government, and then Rehnquist will write it in such a way to circumscribe the decision and protect some of Lopez's holdings. If they're not careful, Lopez/Morrison/Jones could end up being limited to the facts, and not set any precedent at all.

I'll be expanding my amateur How Does The Supreme Court Work? series after the Ashcroft v. Raich decision comes down, in order to get an overall sense of what happened in the 'federalism revolution.'

The decision will come down shortly, and it will almost certainly eviscerate the intellectual underpinnings of Lopez, despite likely attempts from the Court's conservatives to the contrary.

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