# How can SCOTUS allow the feds to regulate non-interstate marijuana? **URL:** \ **Category:** Great Debates\ **Created:** [June 7, 2005, 9:09am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275 "2005-06-07T09:09:19Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 7, 2005, 1:08pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/21 "2005-06-07T13:08:20Z")
**Bricker** , _Wickard_ was by far the high water mark of the New Deal decisions. One needn’t be a hypocrite to disagree with the reasoning and result in _Wickard_ while agreeing with the other cases of the time. So yeah, we _can_ have it both ways in that respect. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [June 7, 2005, 1:12pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/22 "2005-06-07T13:12:27Z")
> [@Snowboarder Bo](#): > > On to the larger issue: the Wickard decision seems along the lines to me of “compelling interest”, another legal doctrine that I consider to be dangerous and overbearing. Am I wrong to draw these decisions as similiar? The two decisions are precisely similar, and based on a source of legal doctrine which is usually examined by a doctor wearing a rubber glove. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [June 7, 2005, 1:24pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/23 "2005-06-07T13:24:47Z")
> [@RTFirefly](#): > > I remember first hearing about _Wickard_. Barry Goldwater discusses it in passing in _The Conscience of a Conservative_. It seemed outrageous to me then, and as I’ve made my personal journey from Goldwater conservative to the Democratic wing of the Democratic party, it’s never ceased to seem excessive. Consider that a mere decade and a half earlier, it seems to have simply not occurred to anyone to avoid all the bother of amending the Constitution by simply pulling a prohibition power out of some emanation of a penumbra of the Commerce Clause. Even in its time, the decision was radical. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 7, 2005, 1:55pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/24 "2005-06-07T13:55:26Z")
> [@Gadarene](#): > > **Bricker** , _Wickard_ was by far the high water mark of the New Deal decisions. One needn’t be a hypocrite to disagree with the reasoning and result in _Wickard_ while agreeing with the other cases of the time. So yeah, we _can_ have it both ways in that respect. Can you explain your reasoning? Just stating your opinion, as you have done here, isn’t really meaningful. How are the decisions materially different? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2005, 2:06pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/25 "2005-06-07T14:06:25Z")
> [@Gadarene](#): > > **Bricker** , _Wickard_ was by far the high water mark of the New Deal decisions. One needn’t be a hypocrite to disagree with the reasoning and result in _Wickard_ while agreeing with the other cases of the time. So yeah, we _can_ have it both ways in that respect. No, I don’t agree – except if your basis for drawing the line is simply that you agree with the result. Any other rationale you care to advance is simply rationalization: deciding what you want the result to be, and then crafting a test or line to allow you to distinguish cases to reach your desired result. Convince me otherwise. What is the principled, non-results-based rationale that makes _Wickard_ wrong but other New Deal decisions right? (Or, if you prefer, what makes _Wickard_ right and the instant case wrong?) When I say “non-results-based” I mean a rationale that has the Court simply interpreting the law, not crafting policy. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 7, 2005, 2:37pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/26 "2005-06-07T14:37:48Z")
Let’s get on the same page first. When you say “New Deal Commerce Clause decisions,” to what are you referring? I’m assuming you’re not talking about Warren Court Commerce Clause cases like _Katzenbach v. McClung_ and _Heart of Atlanta_, right? I also assume you’re not talking about New Deal cases like _West Coast Hotel_ that don’t deal with the Commerce Clause. So you’re specifically referring to _Darby_ and _Jones & Laughlin_. Is that accurate? (By the way, how would you have decided _Heart of Atlanta_?) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 7, 2005, 2:47pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/27 "2005-06-07T14:47:53Z")
> [@RTFirefly](#): > > I stand foursquare behind a fairly liberal interpretation of the Constitutional authority of the government to regulate interstate commerce. But this decision troubles me. > > Forget the ‘interstate’ part for a moment. But if someone grows and smokes their own weed, how exactly is that ‘commerce’? > > And from the POV of the Commerce Clause, how does the pot someone grows and smokes themselves differ from the tomatoes I grow in my garden for my personal consumption? > > [As Justice Thomas said](http://www.washingtonpost.com/wp-dyn/content/article/2005/06/06/AR2005060600564.html), it appears that “the Federal Government may now regulate quilting bees, clothes drives and potluck suppers throughout the 50 states.” I’m not a big Clarence Thomas fan, but is he off base? If the reach of the decision rests on the Commerce Clause, it’s hard to see how that would be so. Indeed. I’d like someone who defends this decision to explain exactly which kind of intrastate commerce the feds can’t control, and why. This decision makes a mockery of the commerce clause. And \*\*Bricker \*\*is exactly right here. This is a perfect example of a decision most of the folks on this board will disagree with, even though the process by which the court arrived at it is no different than that used to arrive at decisions with which many do agree. ---
**Author:** ![Arwin](https://avatars.discourse-cdn.com/v4/letter/a/51bf81/32.png) [@Arwin](https://boards.straightdope.com/u/Arwin)\ **Post date:** [June 7, 2005, 3:00pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/28 "2005-06-07T15:00:41Z")
> [@Snowboarder Bo](#): > > But if my understanding is correct, part of what this decision would mean is that Alaska can go jump in a lake with regard to what that state wants to do about the criminalization of marijuana. The fed says it’s illegal, so it’s illegal EVERYWHERE ALL THE TIME NO EXCEPTIONS. > > Your state constitution matters naught. The wishes of your citizenry to live as they please behind their state’s borders matters naught. I read the court text above and that’s indeed what it seems to come down to. How long before marijuana will be recognised for its medicinal use on a federal level, is the question now. In the Netherlands, we’ve monopolised marijuana production for medicinal use to one state controlled manufacturor, to make sure the distinction between illegal (production of marijuana is still illegal here, but you can have up to 5 plants for personal use or something like that) and legal marijuana is clear. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 7, 2005, 3:05pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/29 "2005-06-07T15:05:39Z")
> [@](#): > > This is a perfect example of a decision most of the folks on this board will disagree with, even though the process by which the court arrived at it is no different than that used to arrive at decisions with which many do agree. Can you name some of those decisions, please? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 7, 2005, 3:18pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/30 "2005-06-07T15:18:34Z")
> [@Gadarene](#): > > Can you name some of those decisions, please? Bricker already did, in post #17. The process, as he also already outlined, is starting with a desired result, and expanding on the original intent of the constitutional authors to find a rationale for that result (although I might disagree with him about _Lawrence_). ---
**Author:** ![Fuji\_Kitakyusho](https://avatars.discourse-cdn.com/v4/letter/f/f0a364/32.png) [@Fuji\_Kitakyusho](https://boards.straightdope.com/u/Fuji_Kitakyusho)\ **Post date:** [June 7, 2005, 3:33pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/31 "2005-06-07T15:33:49Z")
I can’t even believe that this is a significant enough issue to get to the desk of a higher-up politician, much less become a federal law. Granted, I reside in British Columbia, so I have a bit of a different perspective, but I’m currently in Denver on business and am awed that this is front page news (USA Today). What is it about THC that makes it so different from alcohol, nicotine or any common OTC drug, that makes user responsibility an insufficient control? ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [June 7, 2005, 3:34pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/32 "2005-06-07T15:34:24Z")
> [@Snowboarder Bo](#): > > I am curious to see if someone can explain, in simple language fit for a snowboarder, just how exactly the SC found that the feds had cause, legally, to prosecute marijuana production and consumption that does not cross state lines? Justifiable judicial activism? :rolleyes: ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [June 7, 2005, 3:44pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/33 "2005-06-07T15:44:56Z")
> [@Justice Scalia](#): > > Since Perez v. United States, 402 U. S. 146 (1971), our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that “substantially affect” interstate commerce. Id., at 150; see United States v. Morrison, 529 U. S. 598, 608-609 (2000); United States v. Lopez, 514 U. S. 549, 558-559 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276-277 (1981). The first two categories are self-evident, since they are the ingredients of interstate commerce itself. See Gibbons v. Ogden, 9 Wheat. 1, 189-190 (1824). The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete. > … > And the category of “activities that substantially affect interstate commerce,” Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. 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. There’s the textualist analysis. To be fair, most of it is drawn from other cases, not from the Constitution itself. So this case seems to be built on previous cases rather than the underlying Constitution’s text, even in Scalia’s opinion. Probably a good case to use in the future to demonstrate that constitutional decisions, like those by the SCotUS are not all that far removed from amendments in the legal hierarchy. Enjoy, Steven ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 7, 2005, 3:52pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/34 "2005-06-07T15:52:12Z")
> [@Debaser](#): > > …and some states have passed laws making it legal. When a state and the federal government disagree the state is supposed to win out, unless we are talking about powers specifically given to the federal government by the constitution. Marijuana isn’t covered in the constitution so the states should be able to do what they please. **Bricker** said it well, but **Debaser** said it more succinctly. A stupid decision, and an illegitimate power grab by the feds. Regards, Shodan ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 7, 2005, 3:53pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/35 "2005-06-07T15:53:25Z")
> [@](#): > > Bricker already did, in post #17. 😕 I’m sorry; I thought your critique was targeted at the specific type of analysis used in this case concerning interstate commerce. _Lawrence_, _Roe_, etc. have nothing to do with interstate commerce. I didn’t realize you were using this case as a typical broadside against non-originalist jurisprudence. Can you make any showing whatsoever that the above decisions are any more results-oriented than any other cases for which original intent is disputed or ambiguous? (I can come up with a number of them in which _both_ conservative and liberal justices tortured the intent of the framers into supporting their personal constitutional vision.) You’re basically accusing the justices of deciding which way they want to rule and then trying to reverse-engineer the result to find reasoning that works. What evidence do you have that this is the case, rather than the justices simply having a different understanding of constitutional interpretation than you do? Do you think the Administrative Procedures Act is unconstitutional? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2005, 4:09pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/36 "2005-06-07T16:09:52Z")
> [@Gadarene](#): > > Let’s get on the same page first. When you say “New Deal Commerce Clause decisions,” to what are you referring? I’m assuming you’re not talking about Warren Court Commerce Clause cases like _Katzenbach v. McClung_ and _Heart of Atlanta_, right? I also assume you’re not talking about New Deal cases like _West Coast Hotel_ that don’t deal with the Commerce Clause. So you’re specifically referring to _Darby_ and _Jones & Laughlin_. Is that accurate? Perhaps I shouldn’t have said “New Deal,” because that’s unnecessarily limiting. I’m talking about abuses of the term “commerce” that arise in _Caminetti v. US_ and _Cleveland v. US_. I have no problem with _Katzenbach v. McClung_ and _Heart of Atlanta_. I have a bit of heartburn with _National Labor Relations Board v. Feinblatt_ (same problem I have with _Darby_ and _Jones & Laughlin_), and a big problem with _US v. Wrightwood Dairy_. > [@](#): > > (By the way, how would you have decided _Heart of Atlanta_?) Given the record’s showing that Heart of Atlanta motel actively solicited interstate travellers by advertising and the finding that 75% of their guests were from out of state, I would have had no problem finding that their policies burdened interstate commerce and were subject to Congressional reach. _[fix code --G]_ ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2005, 4:13pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/37 "2005-06-07T16:13:56Z")
It’s probably just a new doctrine waiting to be born: Substantive Due Commerce. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 7, 2005, 4:30pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/38 "2005-06-07T16:30:43Z")
If you agree with _Heart of Atlanta_ and (especially) _Katzenbach_, then you’ve answered your own question about how I would principledly distinguish _Wickard_ as an outlier even in its own time. From _Katzenbach_: > [@](#): > > Ollie’s Barbecue admits that it is covered by these provisions of the Act. The Government makes no contention that the discrimination at the restaurant was supported by the State of Alabama. There is no claim that interstate travelers frequented the restaurant. The sole question, therefore, narrows down to whether Title II, as applied to a restaurant annually receiving about $70,000 worth of food which has moved in commerce, is a valid exercise of the power of Congress. The Court answered yes. You’re cool with that? I’ll take a look at, and respond to, the cases you cited in a bit, when I get another free moment. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2005, 4:44pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/39 "2005-06-07T16:44:03Z")
> [@Gadarene](#): > > You’re cool with that? > [@Katzenbach Court](#): > > The District Court expressly found that a substantial portion of the food served in the restaurant had moved in interstate commerce. Yes, based on what I just quoted, I’m cool with that. While the dollar value of the food may not be gigantic, the fact is that a substantial portion of the food was procured via interstate commerce. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 7, 2005, 5:00pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/40 "2005-06-07T17:00:31Z")
Great, so there’s the principled distinction. _Wickard_ and this new case concerned goods that were produced, moved, and used wholly intrastate, yes? If the problem here is with the “substantial affects” prong, why does that implicate caselaw that either applied that prong in a much more reasonable fashion or didn’t need to apply it at all? Thus…one can be a liberal and oppose the result of this decision without trying to have it both ways. (For my part, I oppose it because I’m a liberal with a strong belief in states’ rights where appropriate–something I might turn into a thread later today. That doesn’t make me a hypocrite for supporting those New Deal decisions that, to my view, justifiably upheld the exercise of federal power.) [Previous page](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275.md?page=1) [Next page](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275.md?page=3)