# 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:** 4
**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, 6:37pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/61 "2005-06-07T18:37:04Z")
**Bricker:** > [@](#): > > But that’s not the right question. It’s for the legislature to solve that problem, not the courts. Well, except of course that under your formulation the legislature _can’t_ solve it. State legislatures, yes. The legislature, no. **ISiddiqui:** > [@](#): > > 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. …Which is why I specified that it’d be a much better argument if the doctor’s office was the only one in town. 🙂 That does make it necessarily open to the public, in some meaningful way. ---
**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, 6:39pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/62 "2005-06-07T18:39:00Z")
**treis:** > [@](#): > > As long as Congress has a rational (meaning remotely possible) belief that an activity impacts interstate (and I would assume foriegn also) commerce. I’m not sure why “foreign also” would be a valid assumption. Can you elaborate? ---
**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, 6:42pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/63 "2005-06-07T18:42:00Z")
Article I Section 8 of the Constitution: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” If it applies for inter-state commerce I don’t see why it wouldn’t also apply with foriegn commerce. ---
**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, 6:46pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/64 "2005-06-07T18:46:25Z")
> [@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? The answer would be, to all practical extents and purposes, nothing. That was Scalia’s point exactly. The ability to regulate non-economic matters which have some impact, not necessarially significant impact, on interstate trade is enough. We’ve seen this logic used when a resturant was getting supplies from out of state to regulate what the resturant does with the finished product. Basically this line of reasoning is a blank check. Just like SDP and various penumbras and emanations. Enjoy, Steven ---
**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, 6:47pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/65 "2005-06-07T18:47:39Z")
**treis:** > [@](#): > > Article I Section 8 of the Constitution: > > “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” > > If it applies for inter-state commerce I don’t see why it wouldn’t also apply with foriegn commerce. :smack: Right. Carry on. ---
**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, 6:50pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/66 "2005-06-07T18:50:16Z")
> [@Gadarene](#): > > **Bricker:** > > Well, except of course that under your formulation the legislature _can’t_ solve it. State legislatures, yes. The legislature, no. But that’s not the right question. It’s for the state 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, 6:51pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/67 "2005-06-07T18:51:01Z")
> [@Bricker](#): > > 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 …” No, I’m pointing to results that a vast majority don’t like and suggesting the court’s decision should not be modified. If you get rid of _Wickard_, things like that are open. It’s because removing it would lead to many results that most people would not like, the process should continue, even if once in a while a decision is made, using that process, that people don’t like. Basically, getting rid of _Wickard_ is an extreme reaction and I have a feeling that most people haven’t totally thought it through and what it would mean. ---
**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, 6:52pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/68 "2005-06-07T18:52:42Z")
> [@Mtgman](#): > > The answer would be, to all practical extents and purposes, nothing. That was Scalia’s point exactly. The ability to regulate non-economic matters which have some impact, not necessarially significant impact, on interstate trade is enough. We’ve seen this logic used when a resturant was getting supplies from out of state to regulate what the resturant does with the finished product. > > Basically this line of reasoning is a blank check. Just like SDP and various penumbras and emanations. > > Enjoy, > Steven Scalia’s point? He was with the majority, you know? 😃 He distinguished this, saying it was an economic activity, unlike carrying a gun (_Lopez_) or beating your wife (_Morrison_). ---
**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, 6:54pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/69 "2005-06-07T18:54:19Z")
**Bricker** you do see the distinction between handing a blank check to the Federal Government to regulate anything at all and requiring the Federal Government to have a rational basis to violate Due Process, correct? ---
**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, 7:11pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/70 "2005-06-07T19:11:50Z")
> [@treis](#): > > **Bricker** you do see the distinction between handing a blank check to the Federal Government to regulate anything at all and requiring the Federal Government to have a rational basis to violate Due Process, correct? It’s a distinction of results, not of process. ---
**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, 7:28pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/71 "2005-06-07T19:28:00Z")
No its not the same process. The Court in this case took another step and gave the Federal Government power that was clearly left to the States. In the other cases you have cited the Court extended rights found in the Constitution and through the 9th amendment. Thats a pretty big difference. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 7, 2005, 7:28pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/72 "2005-06-07T19:28:33Z")
> [@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 noted the historical phenomenon by which the faction that is not in control of the government tends to favor states’ rights, while the faction in power tends to oppose them [here](http://boards.straightdope.com/sdmb/showthread.php?t=308026) . ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 7, 2005, 7:53pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/73 "2005-06-07T19:53:35Z")
> [@Bricker](#): > > This decision troubles me. > > I believe it’s absolutely correct if _Wickard_ is correct. To reach a different conclusion, they would have needed to ignore _stare decisis_ and overrule _Wickard_. My problem is that the Court kind of did that with \*Lopez \*and _Morrison_ > [@](#): > > I think _Wickard_ was wrong, as are the whole bunch of New Deal era Commerce Clause decisions. I had problems with some of them myself. > [@](#): > > But see, guys – you can’t have it both ways. If the Supreme Court had the power to decide back then that the Commerce Clause means something that the people who wrote it never would have imagined the words meaning… then they have the power to, in effect, substitute their version of the Constitution in any time they feel like it. Just as the Court had the power to decide _Lochner_ and its progeny. But your point is well taken. You can’t complain about the principal of judicial review only when you don’t like the results. That’s what was so baffling about Schiavo. The sides got reversed (sort of) and all of the sudden the folks who had been arguing for judicial restraint were instead arguing for activism–but they kept using the same words to do it. > [@](#): > > With this decision, I see a lot of liberal voices raised in protest – but they are protesting the result they don’t like, not the process that was used to reach it… and the process is the problem. If you’ve stood by cheering the Supreme Court over the years as it has twisted the Constitution’s words into new interpretations, and said nothing because you LIKED the new interpretations, I think it is absolutely intellectually dishonest of you to now complain because there’s a result you don’t like. Amen. > [@](#): > > I dislike this decision, too, but my dislike of the Animatronic Constitution School of Thought dates back quite a ways. In some ways, I like this result: marijuana should be illegal, and I think “medical” marijuana is a crock. So strictly om results, I should be pleased. But I’m not, because the ability of a state to decide for itself the issue of marijuana use is important; it’s not for me, but for the people of California, to decide how California treats its marijuana users. That’s an important principle, and it’s been vitiated by this decision. Wow. We’re in complete agreement about the principles. I agree that the states should be regulating this, and taking it from them is an example of paternalistic-big government. But as a matter of policy (and preference) I think pot should be legal. Wouldn’t it be great if I could move to a state where it was–you could live where it was illegal, and I could live where it was legal, and we’d both be happy (about pot, anyway). > [@](#): > > But this is not an aberration - it’s what happens when you cheer the Court on every time it substitutes its own views for simply reading the damn words. Are the words really helpful in this case? They seem kind of abstract, and subject to, well, interpretation. And one might expect the meaning of a concept like interstate commerce to stretch over time. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 7, 2005, 8:01pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/74 "2005-06-07T20:01:54Z")
> [@Gfactor](#): > > My problem is that the Court kind of did that with \*Lopez \*and _Morrison_ Didn’t complete the thought here (damn work). I meant to continue: the Court keeps repeating the same language and coming to differing results, which robs the language of meaning. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 7, 2005, 8:13pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/75 "2005-06-07T20:13:32Z")
> [@Liberal](#): > > For the record, I like practically nothing about the New Deal. It was a grand wealth redistribution scheme. The judicial complicity in that travesty was no better than in this new one. And it all started with similar threats against the judiciary. > [@](#): > > Roosevelt, however, emboldened by the triumphs of his first term, set out in 1937 to consolidate authority within the government in ways that provoked powerful opposition. Early in the year, he asked Congress to expand the number of justices on the Supreme Court so as to allow him to appoint members sympathetic to his ideas and hence tip the ideological balance of the Court. In one sense the proposal succeeded; Justice Owen Roberts, almost certainly in response to the threat, switched positions and began voting to uphold New Deal measures, effectively creating a liberal majority in West Coast Hotel Co. v. Parrish and National Labor Relations Board v. Jones & Laughlin Steel Corporation. Journalists called this change the “switch in time that saved nine.” But the “court packing plan,” as it was known, did lasting political damage to Roosevelt and was finally rejected by Congress in July. At about the same time, the administration proposed a plan to reorganize the executive branch in ways that would significantly increase the president’s control over the bureaucracy. Like the Court-packing plan, executive reorganization garnered opposition from those who feared a “Roosevelt dictatorship” and failed in Congress; a watered-down version of the bill finally won passage in 1939. > **[New Deal](https://en.wikipedia.org/wiki/New_Deal)** > > The New Deal a series of programs, public work projects, financial reforms, and regulations enacted by President Franklin D. Roosevelt in the United States between 1933 and 1939. Major federal programs and agencies included the Civilian Conservation Corps (CCC), the Civil Works Administration (CWA), the Farm Security Administration (FSA), the National Industrial Recovery Act of 1933 (NIRA) and the Social Security Administration (SSA). They provided support for farmers, the unemployed, youth an... > **[Judicial Procedures Reform Bill of 1937](https://en.wikipedia.org/wiki/Court-packing_Bill)** > > The Judicial Procedures Reform Bill of 1937, frequently called the "court-packing plan", was a legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court in order to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional. The central provision of the bill would have granted the president power to appoint an additional justice to the U.S. Supreme Court, up to a maximum of six, for every In the... ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [June 7, 2005, 8:14pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/76 "2005-06-07T20:14:05Z")
This has been very interesting and informative reading for me. Thanks to all who responded and provided such a wealth of legal cases, etc. for me to find and read up on. Not a lot of powder atm, so I have some free time to plow through all this. Based on what I’ve read so far tho, I don’t think my opinion will change (that this was a bad decision based on a precedent set from arguments that wouldn’t hold as much water as a tissue paper sack). ---
**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, 8:26pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/77 "2005-06-07T20:26:10Z")
> [@](#): > > Early in the year, he asked Congress to expand the number of justices on the Supreme Court so as to allow him to appoint members sympathetic to his ideas and hence tip the ideological balance of the Court. In one sense the proposal succeeded; Justice Owen Roberts, almost certainly in response to the threat, switched positions and began voting to uphold New Deal measures, effectively creating a liberal majority in West Coast Hotel Co. v. Parrish and National Labor Relations Board v. Jones & Laughlin Steel Corporation. Journalists called this change the “switch in time that saved nine.” Hijack: There’s no “almost certainly” about it. Law professor Barry Cushman [effectively debunks](http://www.amazon.com/exec/obidos/ASIN/0195120434/qid=1118176542/sr=2-1/ref=pd_bbs_b_2_1/102-1372111-7414531) the notion that Roberts’s switch was motivated by the court-packing plan, attributing it instead to a gradual jurisprudential shift away from the overly simplistic public-private distinction in an era of legal realism. As evidence, Cushman points, inter alia, to a vote that was taken on _West Coast Hotel_ before the court-packing plan had been formulated – Justice Roberts voted with the New Deal appointees. Just a little ignorance-fightin’. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 7, 2005, 8:34pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/78 "2005-06-07T20:34:45Z")
Interesting. Haven’t read the book to evaluate the effectiveness of his arguments. I have always been a little dubious of claims that one historical event “caused” another. I remember reading something about this in [A People’s History of the Surpreme Court](http://www.amazon.com/exec/obidos/tg/detail/-/0140292012/qid=1118176934/sr=8-1/ref=pd_csp_1/102-2660615-2526505?v=glance&s=books&n=507846), but I don’t recall the details. I’ll have to read and reread accordingly. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 8, 2005, 3:28am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/79 "2005-06-08T03:28:27Z")
Here is a review of a book that makes a similar argument, relying on Cushman’s work. [http://www.vqronline.org/viewmedia.php/prmMID/8285](http://www.vqronline.org/viewmedia.php/prmMID/8285) ---
**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 8, 2005, 4:34am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/80 "2005-06-08T04:34:07Z")
> [@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. In my cynical mode. If people would get busy and find out what substances in marijuana are effective in this area, drug companies could manufacture it and sell it at a profit, like they do morphine, etc. Voila! The problem is solved. Unfortunately I think experimentation with and study of marijuana is also poses some legal risks. Damn that Catch 22. [Previous page](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275.md?page=3) [Next page](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275.md?page=5)