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Friday, Jul 10, 2009
What the medical marijuana ruling means for patients, the commerce clause, marital sex, Antonin Scalia's career and more.
Jun 7, 2005 | Before Monday's 6-3 Supreme Court ruling in Gonzales vs. Raich, federal agents had the authority to break down the doors of medical marijuana patients and haul them off -- and they still can. But should cancer patients who smoke pot worry about federal agents sending them to the clink? The reality is that more than 99 percent of all marijuana arrests are made at the state or local level. So if you live in California, where marijuana has been legal for medical purposes since the Compassionate Use Act of 1996, your medical marijuana card makes you pretty safe. (That is, unless your name is Angel Raich and you just sued the federal government.)
Raich and her co-defendant, Diane Monson, were not the only two watching this case. Legal scholars and court watchers from across the political spectrum have been anticipating the Raich ruling as one of the most important tests of the reach of federal power in roughly a decade. Now that it's here, what does it mean? Whom does it affect, and how?
As the plaintiffs, Raich and Monson aren't off to jail (yet) as a result of the ruling. In fact, pretty much every media outlet has so far missed the fact that the Supremes didn't rule definitively on their case. Rather, the majority ruled that the 9th Circuit had incorrectly applied the Constitution's "commerce clause" and ordered the case remanded back, with instructions. The plaintiffs still have two avenues -- due process and medical necessity -- that neither the Supreme Court nor the 9th Circuit ruled on. As for pot smoking, the two vowed to continue despite the court's ruling.
If you live in one of the 10 states (Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Washington and Vermont) that effectively allow medical patients to use marijuana, rest easy for now. The high court's ruling doesn't change state law whatsoever; as long as you only run into state and local cops, you're fine. David Michael, a co-counsel for the plaintiffs, explains it this way: "People don't understand how horrendous this is in its implications ... This ruling allows the feds to effectively -- effectively, not legally -- dismantle state laws that differ from federal laws." But, says Michael, if you're growing a few plants in your backyard on the recommendation of your doctor, "you may be safe. [The federal government] will attack growers, distributors and all the instrumentalities of the medical marijuana system, but leave the personal growers alone."
On the day of the decision, Oregon stopped issuing medical marijuana cards but is likely to resume issuing them soon. California Attorney General Bill Lockyer called for calm, telling reporters, "People shouldn't panic. There aren't going to be many changes. Nothing is different today than it was two days ago, in terms of real-world impact." Whether or not the feds will go after Grandma is not yet clear, but these are the same people who locked up Tommy Chong for his Los Angeles novelty shop Chong's Bongs.
Monday was a good day for the commerce clause in the Constitution. The section that gives Congress the authority to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" now stretches to include, according to Clarence Thomas' dissent, "virtually anything." Antonin Scalia, voting with the majority, clarified: "Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce."
In Raich, the two women were using California seeds and plants were following California law. No money changed hands. As Thomas writes, "By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power." So what can't the federal government regulate?
"Maybe marriage," says Orin Kerr, an associate professor at George Washington University law school and a former clerk for Justice Anthony Kennedy. "It's hard to tell what's non-economic." Randy Barnett, lead counsel for the plaintiffs and a Boston University law professor, takes it further. "Under the reasoning in the majority opinion, Congress can regulate whatever it wants."
Monday was not a good day for federalists. "Scalia went off the reservation," says George Mason University law professor and libertarian David Bernstein. Kerr says this case shows that "federalism is style over substance. When the rubber hits the road, the five votes aren't there." That may be a little harsh; as Barnett points out, "Three justices completely agreed with us," even though the case centered on marijuana, never an easy way to win conservative hearts.
For Bernstein, the failure for federalists can be chalked up to politics. "There's no political support for [federalism]. [Republicans on Capitol Hill] don't even talk about limiting federal power," he says. "Why waste political capital when the real goal is overturning Roe v. Wade? Scalia's eye is on the prize, and the prize is Roe."
Adding to the anti-federalist insult, the majority opinion was based on Wickard vs. Filburn, a 1942 ruling -- the bane of originalists -- that forbade a wheat farmer from growing more than his quota of wheat on his farm, even though it was for personal consumption. "You want to say [Scalia] just looked at the law," says Bernstein, "but it's difficult ... I don't know a single serious originalist who thinks Wickard was decided right." Well, not until Monday, anyway. So what was Scalia thinking? Don't worry, he gets his own heading down below.
Last November, during oral arguments in Raich, Barnett, the plaintiffs' lead counsel, momentarily silenced the stodgy courtroom. Think about prostitution and marital sex, Barnett said, not having to ask twice. In that case, he went on, the same act is regulated under some circumstances but not under others, even though the two influence each other. The less marital sex someone has, Barnett argued, the more times someone will seek out a prostitute. So by regulating that married couples have more sex, the state could reasonably expect to reduce the occurrence of prostitution. But surely the federal government can't regulate the number of times a couple must have sex in a week, Barnett concluded.
Monday, I asked him if Congress could now regulate marital sex. "Yes," he said, "under the reasoning of the majority opinion." Kerr wasn't sure: "It's my hope that Congress never tries."
