- The Washington Times - Tuesday, December 14, 2004

Ashcroft vs. Raich, the “medical marijuana” case argued this month in the Supreme Court, is less about marijuana and its medical effects than federal power — the power of Congress to regulate interstate commerce.

Liberals worry a court that in recent years has somewhat limited that power will use Raich to make serious forward progress with its “new federalism agenda.” To judge by the oral argument, however, no majority seems ready to do so. Yet if, as seems likely, Raich is decided narrowly, the big issues finessed by the court undoubtedly will return in later cases.

Raich is a case from California, which passed a referendum authorizing the possession, manufacture and distribution (for free) of marijuana for personal medical use under a doctor’s supervision. Nine other states have similar laws, which exempt patients and their caregivers from criminal sanctions.

Those laws, however, happen to conflict with a federal law, the Controlled Substances Act of 1970, which outlaws manufacture, distribution and possession of marijuana, with no exceptions for medical use. Raich is about that conflict.

After federal agents acting under the Controlled Substances Act seized the drug supplies of two California women using marijuana under their doctors’ care, the women sued and challenged the law as unconstitutional by encompassing medical marijuana. They argued that the Article I clause authorizing Congress to “regulate commerce … among the several states” does not permit the CSA-codified comprehensive regulation of marijuana. In other words, they claim the should be able, consistent with California law, to use marijuana as a pain reliever.

Raich is not an easy case if you (a conservative) think Congress regulates too much in the name of interstate commerce but also want the federal government to wage war on illegal drugs. It is also not easy if you (a liberal) think there should be exemptions for medical marijuana but also believe there is virtually nothing the federal government can’t regulate as interstate commerce. Only libertarians can contemplete Raich with ease since they oppose laws criminalizing drug use and the big federal government developed since the New Deal, much of its foundation laid by the commerce clause.

Raich inevitably forces a person to think about the line of New Deal commerce-clause cases culminating in Wickard vs. Filburn (1942). Wickard is the famous case of an Ohio farmer who grew wheat to feed his livestock and to grind into flour for his family. It never left the farm. Yet the government had an interest in Roscoe Filburn’s “local” farming because he produced more wheat than federal law allowed.

Fined $117, Mr. Filburn sued but lost his argument that Congress had no power to regulate his wheat production. The court said his activity could be regulated because it had a “substantial effect” on the nation’s commerce. How so? Because if other farmers did as he, their personal wheat farming would reduce the national demand for wheat and thus its price — contrary to the government regulatory scheme.

Wickard yielded a commerce clause with no real limits on congressional power. But nine years ago, in the Lopez case from San Antonio challenging the Gun-Free School Zones Act, the court for the first time in more than a half-century found the clause limited Congress. Yet it did not overrule Wickard.

The problem Raich presents for the justices is if they follow Lopez, they probably have to side with the California plaintiffs. But if they do that, they probably have to confront Wickard, because the two cases are in serious tension. To judge by the oral argument, the justices are not anxious to side with the plaintiffs nor to overrule or seriously modify Wickard.

That’s why the smart betting is they will muddle through, finding a way to side with the government. Left for another day will be what to do about a federalism jurisprudence that one must hope is not rendered further incoherent by the decision.

Terry Eastland is publisher of the Weekly Standard.

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