Medical-pot ruling lets Congress regulate 'virtually anything'

Posted on June 12, 2005 | Type: Op-Ed | Author: Randy Barnett
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Monday's Supreme Court decision on medical marijuana greatly expands federal power and restricts the ability of states to experiment with policies that differ with whatever party that controls Congress. While state medical cannabis laws remain in effect, law-abiding patients will think twice before violating federal law.

Everyone has heard of the Bill of Rights, but almost no one knows that Article I, Section 8 of the Constitution also contains a list of federal powers and that Congress is limited to exercising the powers on that list. This list is widely ignored because, over the years, the Supreme Court has interpreted them so broadly that Congress can do pretty much whatever it wants so long as it does not violate one of the Bill of Rights.

The Constitution gives Congress the power to regulate commerce "among the several states," leaving the power to regulate purely local activities with the states. Since the 1930s, however, the court ruled that Congress may prohibit even local activities if they "substantially affect" interstate commerce. For 60 years, the court upheld every claim of congressional power under the Commerce Clause.  

Then in 1995, in U.S. vs. Lopez, the Supreme Court struck down a law making it a crime to possess a gun within 1,000 feet of a school. The court held that Congress could regulate intrastate activity that substantially affects interstate commerce only if that activity is "economic" in nature. Because possessing a gun near a school is non-economic, Congress could not regulate it. In Gonzales vs. Raich, I brought suit on behalf of Angel Raich and Diane Monson, two California women who use marijuana for medical purposes on the recommendation of their doctors as authorized by federal law. We contended that since their activities took place wholly within the state of California and were completely non-economic, the federal Controlled Substances Act was unconstitutional under Lopez. The Court of Appeals for the 9th Circuit (which includes Arizona) agreed.

On Monday, the Supreme Court accepted the government's argument that Congress could prohibit this wholly intrastate non-economic activity under its interstate commerce power because the ban on these purely local activities was an "essential part of a broader regulatory scheme." By this rationale, Congress can regulate pretty much anything it wants, and the list of limited powers provided by the Founders is once again in limbo.

Justices Antonin Scalia and Anthony Kennedy joined the four more liberal justices in upholding the federal law. Three conservative justices, including Arizona natives William Rehnquist and Sandra Day O'Connor dissented. In a separate dissent, Justice Clarence Thomas, who received the Goldwater Award in 1999 from my colleagues at the Goldwater Institute, wrote: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything - and the Federal Government is no longer one of limited and enumerated powers."

The cause of "federalism" used to be associated with the "states' rights" that were used to oppress Blacks. Now that the Supreme Court uses the 14th Amendment to protect minority rights, federalism enables states to experiment with social policies that might differ from those of other states, or from the policies favored by the party that controls Congress. In short, federalism is not just for conservatives.

Gonzales vs. Raich reveals the importance of the next nominee selected to the Supreme Court. Will President Bush nominate someone like Justice Thomas, who is committed to federalism? Or will he nominate a fair-weather federalist, as Scalia turned out to be when the chips were down?

Professor Randy Barnett is a senior fellow at the Goldwater Institute.

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