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Thursday, July 07, 2005

The Raich Decision: What Were They Smoking?

Many of your fellow Americans have never heard of the concept of “enumerated powers” and what it means in our system of government. Incredulity will meet your explanation that Congress is not free to legislate on any pressing need of the nation. People will be shocked at this because their experience with Congress and Supreme Court reviews of acts of Congress has been a general expansion of the federal government. “What do you mean they cannot do that?” they’ll ask. Their lack of knowledge is not their fault.

The Supreme Court decision that confirms this all-powerful federal government scheme assumed by Americans is Gonzalez v. Raich. Raich is the case confirming the constitutionality of the sweeping federal drug law that has outlawed medical marijuana in California notwithstanding that state’s legislation making it lawful. The average American will correctly view the decision on a human level. The government is forcing its citizens to deal with the severe pain of cancer and chemotherapy, Aids or other diseases without a palliative remedy prescribed by their doctors. And those people are correct.

The Court has ruled and the legal basis espoused by the majority was wrong. It contains very serious danger for our futures. The wise dissents written by just-retired Justice O’Connor and Justice Thomas recognize this danger.

Let’s recap the case and the case law relied upon in the Justice Stevens majority opinion. The facts are, from the majority opinion:

“Respondents Angel Raich and Diane Monson are Cali­fornia residents who suffer from a variety of serious medi­cal conditions and have sought to avail themselves of medical marijuana pursuant to the terms of the Compas­sionate Use Act. They are being treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat respondents’ conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursu­ant to their doctors’ recommendation, and both rely heav­ily on cannabis to function on a daily basis. Indeed, Raich’s physician believes that forgoing cannabis treat­ments would certainly cause Raich excruciating pain and could very well prove fatal.

Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two care­givers, litigating as “John Does,” to provide her with lo­cally grown marijuana at no charge. These caregivers also process the cannabis into hashish or keif, and Raich her­self processes some of the marijuana into oils, balms, and foods for consumption.

On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson’s home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Never­theless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants.”

So Congress has denied under through the Controlled Substances Act (CSA) remedies prescribed by physicians to pained citizens. Can the Congress do this? Of course they can because of this Supreme Court ruling. However, it is legally incorrect.

Under the federal system of government, the Founders recognized the many sovereign states would not give up their full authority over activities within their borders but would cede some powers in order to facilitate good economic relations among the states. This limited offer from the states would help develop a federal government that was strong enough to ensure individual rights to “life, liberty and property”. The earlier Articles of Confederation were relatively successful but flawed as to the economic needs of the new nation. Thus, the Commerce Clause of Article I allows the federal government to regulate “Commerce…among the several States”.

The majority opinion discussed how this clause was initially interpreted for the first century of America’s existence. “[T]he primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been per­missible. Then, in response to rapid industrial develop­ment and an increasingly interdependent national econ­omy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enact­ment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890…”

How could the first generation of interpretations of this clause be wrong when the actual individuals who drafted and ratified the Constitution were still living? How can a different and expansive interpretation be true to the intent?

Justice O’Connor recognized the need to uphold the concept of enumerated powers. It is the essence of the unique federalism in a country like ours. She wrote:

“This case exemplifies the role of State as laboratories. The States’ core police powers have always included authority to define criminal law and to protect the health, safety and welfare of their citizens.”

Experiments are done in labs to avoid extraneous inputs, to focus the analysis and limit the environment in case of damage. Think of the movie “The Blob”. One giant oozing blob can only go so far. It can “roll” or shimmy over a few people, turning them into skeletons and to threaten, at most, a small city. Local militia can use flames throwers or modern lasers to sizzle the Blob into black scrambled eggs. It is a tough go for that city but the damage is contained. A federal “Blob”, simultaneously unleashed in 50 states at once would be less easy to contain, if not be a catastrophe.

However, the majority sees today as part of the earlier mentioned “new era”:

“[T]hree general catego­ries of regulation in which Congress is authorized to en­gage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U. S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regu­late activities that substantially affect interstate com­merce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). Only the third category is implicated in the case at hand.”

The majority then discussed the case that most parallels this issue, that provides the stare decisis or precedent for their decision:

“Our decision in Wickard, 317 U. S. 111, is of particular relevance. In Wickard, we upheld the application of regu­lations promulgated under the Agricultural Adjustment Act of 1938, 52 Stat. 31, which were designed to control the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and consequent abnormally low prices. The regulations established an allotment of 11.1 acres for Filburn’s 1941 wheat crop, but he sowed 23 acres, intending to use the excess by consum­ing it on his own farm. Filburn argued that even though we had sustained Congress’ power to regulate the produc­tion of goods for commerce, that power did not authorize “federal regulation [of] production not intended in any part for commerce but wholly for consumption on the farm.” Wickard, 317 U. S., at 118. Justice Jackson’s opinion for a unanimous Court rejected this submission.”

How did a person growing his own crops like one does in typical ones own garden fall within the Commerce Clause?

The majority cited 3 instances when Congress may act without exceeding the Commerce Clause:

1. To regulate the channels of interstate commerce;
2. To regulate and protect the instrumentalities of interstate commerce;
3. To regulate activities that substantially affects interstate commerce.

It is the 3rd prong’s “substantially affect” that is stretched beyond logic. What does not affect another thing? The famous “butterfly effect” is the concept that a butterfly that flaps its wing in Asia can create a hurricane in Puerto Rico. One seemingly unrelated occurrence can have an affect somewhere else. The 3rd prong is so tenuous that very basis of the enumerated powers philosophy that permeates the Constitution is destroyed.

The majority claims Wickard established “that Congress can regulate purely intrastate activity that is not itself .commercial, in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”

I have not heard about this interstate market for pot. I have not heard about its regulation that must mean it is taxed and has FDA oversight. But, such is not the case. The Court reasoned that medical marijuana will be drawn into the illegal interstate market! Cancer patients are going to be at the Phish concerts in Idaho and Arizona to make a few dollars instead of smoking the stuff in order to hold down a sandwich after Chemo treatment. Cmon!

The majority held that, while the CSA is broad in its application, since some issues are legitimately within the Congress’ purview, they will let the rest of the unconstitutional stuff slide. Your honors, that is exactly why you get paid the big bucks! You are supposed to read the whole law and uphold that which is lawful and throw out that which is not. In contract law it is called the “Savings” rule. You save the good parts and toss out the bad. However, if the complete law is tainted by the bad, then it all gets tossed.

O’Connor says Congress cannot make a law that is too long and complex that way. The idea is not to confuse Justices with words. She writes that Congress now has incentives to “legislate broadly.”

She adds:

“Today’s decision suggests that the federal regulation of local activity is immune to Commerce Clause challenge because Congress chose to act with an ambitious, all encompassing statute, rather than piecemeal. In my view, allowing Congress to set the terms of the constitutional debate in this way, i.e., by packaging regulation of local
activity in broader schemes, is tantamount to removing meaningful limits on the Commerce Clause.”

Justice Thomas is befuddled by the connection between this ruling and interstate drug trafficking. He wrote:

“Congress’ goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. That is, unless Congress’ aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana.”

But what is all the hullabaloo anyway? Giving appropriate historical perspective, Thomas wrote:

“[T]he Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce–not to mention a host of local activities, like mere drug possession, that are not commercial.”

If the States have no policing powers, then federal fiat from a majority vote in Congress is the law for everyone in the country. Our Founders held a reasonable fear of this tyranny of the majority. The assumptions were that criminal activity would be best policed by the people facing the criminals or their locally elected officials. If a street gang hassles people, local officials can pass and enforce laws to deal with that local problem. The federal bureaucrats will inevitably wait too long and come up with a bad solution because they lack the knowledge to properly police the problem.

As central government cannot effectively dictate the economic needs of millions who have individual wants, neither can the federal government dictate criminal law for individual states with differing issues. When we want government to protect our life, liberty and property, it is best done locally.

Justice Thomas wrapped it all up succinctly:

“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.”

There were many debates among our Founders regarding the scope of the power of government. The Founders possessed a wealth of personal experience in self-government in the colonies and over-government during the final stage of King George’s rule. They were well-grounded in political theory and chose liberty as the over-riding goal of the administration of law. They knew that once in office, the natural proclivity of the politician is to assume more power (even small government icon Jefferson exceeded constitutional powers in the Louisiana Purchase).

Historian Paul Johnson has said: “[The] Founding Fathers were loyal to their respective states, and they weren’t about to embrace a constitution which made the states mere precincts of the federal government. That’s why the resulting Constitution divided power between states and federal government as well as among branches of the federal government.”

The Raich case has nothing to do with getting high on marijuana. In a country that values freedom, rulings that exceed the enumerated powers of the Constitution deprives us of liberty. Congress is obligated to prove that its actions are authorized by the Constitution. When the duty is forced upon the people to prove a given Congressional Act is not within the Constitution’s boundaries, our liberty is lost. And liberty, the thing that makes America surprisingly unique in this authoritarian world is the one thing we as Americans should get a buzz on.


At 12:44 PM, Anonymous Old Hippie said...

bravo -- just as the court has stretched the emminent domain powers so it has by invoking the interstate commerce clause to an absurd length-- so the land of the home and the free locks up people for smoking/distributing a weed for health reasons and it locks up reporters for protecting their sources

At 8:12 AM, Anonymous Skip March said...

A very thorough review and analysis of the abuse of interstate commerce regulation and the assault on "enumerated powers" of the federal government......thank you Neal. The effort to move again to a more federal form of government means breaking down wrong assumptions which have framed the thinking and understanding of citizens over the years


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