# 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:** 3
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [June 7, 2005, 5:04pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/41 "2005-06-07T17:04:00Z")
To put the shoe on the other foot where it belongs, I imagine a lot of conservatives who cried ‘States’ rights! States rights! We must preserve states’ rights!" back when the feds were trying to keep racist pigs from maintaining Jim Crow down in the South, are now suddenly not so worried about states’ rights. That seems kinda hypocritical, too. ---
**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, 5:12pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/42 "2005-06-07T17:12:44Z")
> [@Evil Captor](#): > > To put the shoe on the other foot where it belongs, I imagine a lot of conservatives who cried ‘States’ rights! States rights! We must preserve states’ rights!" back when the feds were trying to keep racist pigs from maintaining Jim Crow down in the South, are now suddenly not so worried about states’ rights. That seems kinda hypocritical, too. Yes, it is. And I am just as disgusted with that hypocrisy. However, none of those folks seem to hang out here. ---
**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, 5:14pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/43 "2005-06-07T17:14:23Z")
> [@](#): > > To put the shoe on the other foot where it belongs, I imagine a lot of conservatives who cried ‘States’ rights! States rights! We must preserve states’ rights!" back when the feds were trying to keep racist pigs from maintaining Jim Crow down in the South, are now suddenly not so worried about states’ rights. That seems kinda hypocritical, too. Well, to be fair, with the exception (kinda) of Scalia, the Justices split down federalism lines in this case. Justice Thomas, after all, was arguing that the states should be free to do what they want with regard to intrastate marijuana. I don’t see any hypocrisy there for states’ righters, either…at least not those on the Court. ---
**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, 5:19pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/44 "2005-06-07T17:19:51Z")
> [@Evil Captor](#): > > To put the shoe on the other foot where it belongs, I imagine a lot of conservatives who cried ‘States’ rights! States rights! We must preserve states’ rights!" back when the feds were trying to keep racist pigs from maintaining Jim Crow down in the South, are now suddenly not so worried about states’ rights. That seems kinda hypocritical, too. I does to me, too, in certain instances-- ie, government enforced discrimination. But then, that would apply to many Affirmative Action laws as well. And just because most textualists or originalists tend to be on wshat is usually considered the conservative side of the spectrum, that doesn’t mean that most conservatives are textualists or originalists. Most conservatives, like Bush Jr, want to interpret the consitution in favor of their political leanings, too. ---
**Author:** ![ISiddiqui](https://avatars.discourse-cdn.com/v4/letter/i/97f17d/32.png) [@ISiddiqui](https://boards.straightdope.com/u/ISiddiqui)\ **Post date:** [June 7, 2005, 5:47pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/45 "2005-06-07T17:47:24Z")
> [@Gadarene](#): > > 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.) Here is the problem. What about a doctor’s office in a small town in, say, Mississippi which hasn’t gotten anything through interstate commerce in setting up its practice, which decides to deny access to blacks and denies hiring blacks? That’s covered under the _Wickard_ precedent. Getting rid of _Wickard_ would mean that if a business can prove it just engages in intrastate commerce is not subject to the dictates of Title VII or other types of federal regulatory laws. ---
**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, 5:54pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/46 "2005-06-07T17:54:41Z")
> [@](#): > > Here is the problem. What about a doctor’s office in a small town in, say, Mississippi which hasn’t gotten anything through interstate commerce in setting up its practice, which decides to deny access to blacks and denies hiring blacks? That’s covered under the Wickard precedent. Getting rid of Wickard would mean that if a business can prove it just engages in intrastate commerce is not subject to the dictates of Title VII or other types of federal regulatory laws. Yup. Well, nope. Yup that it wouldn’t be a Commerce Clause problem. But Congress can act pursuant to Section V of the Fourteenth Amendment as well. One might cobble together some theory of public accommodation and equal protection that would allow Congress to validly regulate in that area, if the doctor’s office, for example, was the only one in that town. If there were other doctor’s offces that _did_ serve and hire blacks, I agree that Congress wouldn’t be able to act in that area. The state could, of course. ---
**Author:** ![Spectre\_of\_Pithecanthropus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spectre_of_pithecanthropus/32/12343_2.png) [@Spectre\_of\_Pithecanthropus](https://boards.straightdope.com/u/Spectre_of_Pithecanthropus)\ **Post date:** [June 7, 2005, 6:00pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/47 "2005-06-07T18:00:22Z")
This case is, IMO, a good example of unintended bad consequences. If I understand correctly, there is language in the opinion to the effect that MJ grown at home, for private use, comes under the heading of interstate commerce because there is a national market for marijuana. Now, this isn’t too surprising, since the power of the Federal government to tax or regulate even illicit commerce is well established. However, by making this decision, while at the same time allowing for the possibility that medical MJ is indeed beneficial, the Court is, in essence, encouraging users to participate in the illegal drug supply network, in that their only recourse is to buy MJ that has been grown and sold by someone else. ---
**Author:** ![ISiddiqui](https://avatars.discourse-cdn.com/v4/letter/i/97f17d/32.png) [@ISiddiqui](https://boards.straightdope.com/u/ISiddiqui)\ **Post date:** [June 7, 2005, 6:11pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/48 "2005-06-07T18:11:07Z")
> [@Gadarene](#): > > Yup. Well, nope. Yup that it wouldn’t be a Commerce Clause problem. But Congress can act pursuant to Section V of the Fourteenth Amendment as well. One might cobble together some theory of public accommodation and equal protection that would allow Congress to validly regulate in that area, if the doctor’s office, for example, was the only one in that town. If there were other doctor’s offces that _did_ serve and hire blacks, I agree that Congress wouldn’t be able to act in that area. The state could, of course. Section V of the 14th Amendment only applies to State Action and not private action. Title VII is mostly based on the Commerce Clause, IIRC, which is why it really only applies to business. A better argument MAY be the ‘badges or incidents of slavery’ in the 13th Amendment, but IIRC, it isn’t considered one (or else the Klan would have been forced to integrate ;)). ---
**Author:** ![Spectre\_of\_Pithecanthropus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spectre_of_pithecanthropus/32/12343_2.png) [@Spectre\_of\_Pithecanthropus](https://boards.straightdope.com/u/Spectre_of_Pithecanthropus)\ **Post date:** [June 7, 2005, 6:15pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/49 "2005-06-07T18:15:57Z")
> [@Spectre of Pithecanthropus](#): > > If I understand correctly, there is language in the opinion to the effect that MJ grown at home, for private use, comes under the heading of interstate commerce because there is a national market for marijuana. > . I should have finished connecting the dots here. The underlying concept is that by growing your own MJ, you _impact_ the national market for that commodity, in that you opt out, presumably tending to drive prices down. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [June 7, 2005, 6:18pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/50 "2005-06-07T18:18:04Z")
> [@Spectre of Pithecanthropus](#): > > However, by making this decision, while at the same time allowing for the possibility that medical MJ is indeed beneficial, the Court is, in essence, encouraging users to participate in the illegal drug supply network, in that their only recourse is to buy MJ that has been grown and sold by someone else. No, they can suffer horribly and die from their brain tumors and cancers and whatnot, as is clearly the Court’s intent. ---
**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, 6:18pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/51 "2005-06-07T18:18:45Z")
> [@](#): > > Section V of the 14th Amendment only applies to State Action and not private action. Hence this portion of my post: 😉 > [@](#): > > One might cobble together some theory of public accommodation and equal protection that would allow Congress to validly regulate in that area, if the doctor’s office, for example, was the only one in that town. Places of public accommodation often have common-law duties above and beyond other private businesses. Such duties could arguably be extended, in certain circumstances, to make such places quasi-state actors under the Fourteenth Amendment. (See the mall free speech cases, for instance.) I’m not saying that this argument would hold any water, ultimately, but it’s at least articulable. ---
**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, 6:19pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/52 "2005-06-07T18:19:40Z")
> [@Spectre of Pithecanthropus](#): > > I should have finished connecting the dots here. The underlying concept is that by growing your own MJ, you _impact_ the national market for that commodity, in that you opt out, presumably tending to drive prices down. So, can the feds regulate the tomotoes I grow in my backyard (as per what \*\*RTF \*\*said earlier)? They impact the national market, too. What CAN’T the feds regulate, if we accept this interpretation of the Commerce Clause? ---
**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, 6:20pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/53 "2005-06-07T18:20:21Z")
> [@](#): > > No, they can suffer horribly and die from their brain tumors and cancers and whatnot, as is clearly the Court’s intent. Ah yes. Justices Stevens, Breyer, Souter, and Ginsburg wish nothing but ill upon the marijuana users of America. :rolleyes: ---
**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, 6:23pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/54 "2005-06-07T18:23:25Z")
> [@](#): > > So, can the feds regulate the tomotoes I grow in my backyard (as per what RTF said earlier)? They impact the national market, too. > > What CAN’T the feds regulate, if we accept this interpretation of the Commerce Clause? In response to this argument the majority makes hand-waving reference to the complex and comprehensive character of the Controlled Substances Act. So they do address the question; how well they do so is depends on how persuaded you are by their reasoning. ---
**Author:** ![ISiddiqui](https://avatars.discourse-cdn.com/v4/letter/i/97f17d/32.png) [@ISiddiqui](https://boards.straightdope.com/u/ISiddiqui)\ **Post date:** [June 7, 2005, 6:26pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/55 "2005-06-07T18:26:00Z")
> [@Gadarene](#): > > Hence this portion of my post: 😉 > Places of public accommodation often have common-law duties above and beyond other private businesses. Such duties could arguably be extended, in certain circumstances, to make such places quasi-state actors under the Fourteenth Amendment. (See the mall free speech cases, for instance.) **I’m not saying that this argument would hold any water** , ultimately, but it’s at least articulable. And I’m arguing that it probably wouldn’t hold water ;). Seeing as in my hypo it is a private doctor’s office, I don’t think a court would see it as a quasi-state actor, unlike a mall, which is far more open to the public. ---
**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, 6:28pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/56 "2005-06-07T18:28:00Z")
> [@ISiddiqui](#): > > Here is the problem. What about a doctor’s office in a small town in, say, Mississippi which hasn’t gotten anything through interstate commerce in setting up its practice, which decides to deny access to blacks and denies hiring blacks? That’s covered under the _Wickard_ precedent. Getting rid of _Wickard_ would mean that if a business can prove it just engages in intrastate commerce is not subject to the dictates of Title VII or other types of federal regulatory laws. Good. And your argument is itself an example of what I find so abhorrent about this: you’re pointing to results you don’t like and suggesting that the court’s decisions should be modified accordingly. But that’s not the right question. It’s for the legislature to solve that problem, not the courts. ---
**Author:** ![ISiddiqui](https://avatars.discourse-cdn.com/v4/letter/i/97f17d/32.png) [@ISiddiqui](https://boards.straightdope.com/u/ISiddiqui)\ **Post date:** [June 7, 2005, 6:28pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/57 "2005-06-07T18:28:37Z")
> [@John Mace](#): > > So, can the feds regulate the tomotoes I grow in my backyard (as per what \*\*RTF \*\*said earlier)? They impact the national market, too. > > What CAN’T the feds regulate, if we accept this interpretation of the Commerce Clause? Things that have a very tenuous commerical or economic effect, such as for example carrying a gun or engaging in domestic violence. The argument is that if you didn’t grow the tomatoes in your backyard, you’d buy them from a market and if a bunch of people grew tomatoes, that would affect supply and demand in the market, giving it a substantial effect on interstate commerce. ---
**Author:** ![ISiddiqui](https://avatars.discourse-cdn.com/v4/letter/i/97f17d/32.png) [@ISiddiqui](https://boards.straightdope.com/u/ISiddiqui)\ **Post date:** [June 7, 2005, 6:30pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/58 "2005-06-07T18:30:57Z")
> [@Bricker](#): > > Good. > > And your argument is itself an example of what I find so abhorrent about this: you’re pointing to results you don’t like and suggesting that the court’s decisions should be modified accordingly. > > But that’s not the right question. It’s for the legislature to solve that problem, not the courts. What modification? That is just basic _Wickard_, which has been precedent for over 70 years. ---
**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, 6:34pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/59 "2005-06-07T18:34:40Z")
> [@ISiddiqui](#): > > What modification? That is just basic _Wickard_, which has been precedent for over 70 years. > [@ISiddiqui](#): > > **Getting rid of Wickard** would mean that if a business can prove it just engages in intrastate commerce is not subject to the dictates of Title VII or other types of federal regulatory laws. That modification. Only I should have said, “…you’re pointing to results you don’t like and suggesting that the court’s decisions should NOT be modified …” ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [June 7, 2005, 6:35pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/60 "2005-06-07T18:35:53Z")
> [@John Mace](#): > > So, can the feds regulate the tomotoes I grow in my backyard (as per what \*\*RTF \*\*said earlier)? They impact the national market, too. > > What CAN’T the feds regulate, if we accept this interpretation of the Commerce Clause? As long as Congress has a rational (meaning remotely possible) belief that an activity impacts interstate (and I would assume foriegn also) commerce. Why this doesn’t give the Federal Government to legislate about anything bought or sold anywhere in the world is beyond me. For example why can’t Congress ban basketball in public places becuase of the NBA, sex with your wife becuase that encourages mail-order brides or playing scrabble becuase a computer scrabble game is sold across state lines. [Previous page](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275.md?page=2) [Next page](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275.md?page=4)