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Focus: Constitution has no cannabis clause
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By GARY GALLES Pepperdine University law professor Angel Raich, whose doctor contends that
marijuana is the only thing keeping her alive, can face federal prosecution for taking it, according to a 9th U.S.
Circuit Court of Appeals panel's ruling last month. Forcing someone in chronic pain and
dire health to choose between taking necessary medicine and criminality is appalling. But it is the result of the
Supreme Court's 2005 ruling in Ashcroft v. Raich, which allowed federal charges against medical marijuana users in
states where it was legal. That, in turn, originated in mistreatment of the Commerce Clause, tortured from its narrow
original purpose into federal authority so broad that some law schools call it "the everything clause." Medical marijuana both grown and used
in California is not interstate commerce. As 9th Circuit Judge Harry Pregerson recognized in the ruling that the high
court overturned in Ashcroft v. Raich, "The cultivation, possession and use of marijuana for medicinal purposes and
not for exchange or distribution is not properly characterized by commercial or economic activity," so that federal
drug laws do not override state laws. Despite the absence of interstate commerce, however, the Commerce Clause is the
sole basis for the holding that Washington can override California's medical marijuana law.
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The Commerce Clause arose to prevent states from imposing duties on goods from other states, by allowing only Congress to regulate (with its traditional meaning of "to make regular" or "to remove impediments") interstate commerce. But it did not create a federal power to also control every aspect of life not involving interstate commerce. In the Federalist Papers, Federalist 11
terms it not a grant of federal power, but a "prohibitory regulation, extending … throughout the states."
Federalist 42 describes its purpose as "the relief of the States which import and export through other States, from
the improper contributions levied on them by the latter." Federalist 45 cemented its narrow scope: "The powers
delegated by the proposed Constitution to the Federal Government, are few and defined. ... The powers reserved to the
several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties
and prosperities of the people; and the internal order, improvement, and prosperity of the State." This stringent constraint on federal
power made the Commerce Clause one "few oppose, and from which no apprehensions are entertained." Despite our founders' intent, courts have transformed this ban of state restrictions on trade into a justification for virtually any federal dictate, gutting the 10th Amendment. While it was only used to overturn state restrictions on interstate commerce for almost a century, it has since been reinterpreted to justify federal restrictions on almost anything, with the death blow coming in Wickard v. Filburn, in 1942. |
Wickard eliminated virtually all limits
on federal power under the Commerce Clause: "Even if appellee's activities be local and though it may not be
regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic
effect on interstate commerce." That is, federal power to regulate interstate commerce extended to banning (the
opposite of "removing impediments") production (not commerce) in a single state (not among states). Anything
judged to have even distant or indirect effects became fair game for the feds. Under the Wickard standard, even the
most tenuous potential connection between medical marijuana and interstate commerce justifies federal supremacy,
according to the Supreme Court. That is why the only real hope for Angel Raich, a seriously ill mother of two from
Oakland, is returning to Judge Pregerson's finding that "this limited use is clearly distinct from the broader
illicit drug market," and eliminate the Commerce Cause rationale for federal jurisdiction. In the 1995 Lopez ruling, Chief Justice Rehnquist wrote "If we were to accept the government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate." That same Commerce Clause interpretation also applies to medical marijuana. Under any reasonable interpretation, it leaves medical-marijuana laws to states. But instead, Angel Raich and others must suffer, so Washington can overstep its constitutional powers in one more area.
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