# 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:** 7
**Author:** ![Ike\_Witt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ike_witt/32/283_2.png) [@Ike\_Witt](https://boards.straightdope.com/u/Ike_Witt)\ **Post date:** [June 8, 2005, 9:46pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/121 "2005-06-08T21:46:06Z")
Based on what I have read in this thread, the federal government could make home vegetable gardens illegal. I doubt that they would take action against somebody growing their own peas, but what about people making their own beer or wine? ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [June 8, 2005, 10:11pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/122 "2005-06-08T22:11:14Z")
I can’t see a relevant difference between Marijuana grown to smoke and wheat, wops or whatever you feel like brewing with. The 21st amendment doesn’t seem to be a barrier either: > [@](#): > > The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. That doesn’t seem to be a barrier for Congress to ban alcohol or anything related to alcohol production. ---
**Author:** ![ISiddiqui](https://avatars.discourse-cdn.com/v4/letter/i/97f17d/32.png) [@ISiddiqui](https://boards.straightdope.com/u/ISiddiqui)\ **Post date:** [June 8, 2005, 10:13pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/123 "2005-06-08T22:13:44Z")
> [@Gfactor](#): > > Sounds like a completely arbitrary distinction to me. BTW, while the word “commercial” appears in _Lopez_, that’s not the test. The test is what I quoted earlier. For all intents and purposes if its deemed commerical, Congress can regulate. Any commerce will fall under the three prongs the way they have been defined. So while technically that isn’t the test, in application it seems that is the test, even if it is not explicitly stated. > [@](#): > > Now as long as we’re applying the wrong standard, let’s take it another step: guns are frequently used to commit crimes–including the sale of drugs, which the Court has already held is part of commerce. Why isn’t it reasonable for Congress to say that carrying guns around schools is part of the commercial process? How is carrying a gun part of the ‘commercial process’? Is it manufacturing, production, selling? A gun being used in an interstate drug crime doesn’t make carrying the gun something commerical. > [@treis](#): > > Someone somewhere pays for sex therefore the Federal Government can regulate sex as long as they have a rational basis for what they do. I doubt the Supreme Court would ever consider ordinary sex to be something commerical or that the Congress has proved a rational basis for tying it to commerce. > [@](#): > > Sex (a service) without an exchange for money is no different than growing pot (manufacturing) without selling it. I disagree. I have severe doubts that sex would be considered a service, even by Congress who was to pass any law restricting sexual practices. Sex for money may indeed be considered a service. But regular sex? Sorry, I just don’t see it. On the other hand production of aggricultural goods (farming) is something considered commerical. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [June 8, 2005, 10:33pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/124 "2005-06-08T22:33:22Z")
> [@ISiddiqui](#): > > I doubt the Supreme Court would ever consider ordinary sex to be something commerical or that the Congress has proved a rational basis for tying it to commerce. What of all my scenarios? Certainly Dildos are manufactured and sold, Prostitutes exchange sex for money and people exchange money for mail-order brides. Those actions certainly constitute commerce and the reasons I gave pass the rational basis test for Congress to regulate those markets. > [@ISiddiqui](#): > > I disagree. I have severe doubts that sex would be considered a service, even by Congress who was to pass any law restricting sexual practices. Sex for money may indeed be considered a service. But regular sex? Sorry, I just don’t see it. On the other hand production of aggricultural goods (farming) is something considered commerical. I don’t understand. Growing pot for money=commerce, Sex for money=commerce, Growing pot for personal use=commerce, Sex for personal use=not commerce? What exactly is the difference between those two cases. I am not trying to be obtuse or argumentative here but this is what I get when I read the ruling. All the Federal Government has to do is show a rational basis for something affecting commerece anywhere and it has the power to regulate it. That for all intents and purposes means anything and everything. ---
**Author:** ![ISiddiqui](https://avatars.discourse-cdn.com/v4/letter/i/97f17d/32.png) [@ISiddiqui](https://boards.straightdope.com/u/ISiddiqui)\ **Post date:** [June 8, 2005, 10:44pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/125 "2005-06-08T22:44:03Z")
> [@treis](#): > > What of all my scenarios? Certainly Dildos are manufactured and sold, Prostitutes exchange sex for money and people exchange money for mail-order brides. Those actions certainly constitute commerce and the reasons I gave pass the rational basis test for Congress to regulate those markets. Well, what I said applies for both scenarios. Lesbian sex and sex with your spouse are not commerce nor ‘services’. No court would say they even come close to passing a rational basis linking them to dildos and mail order brides. Rational basis isn’t an automatic win for the government. The government has lost on rational basis tests. > [@](#): > > I don’t understand. Growing pot for money=commerce, Sex for money=commerce, Growing pot for personal use=commerce, Sex for personal use=not commerce? What exactly is the difference between those two cases. I am not trying to be obtuse or argumentative here but this is what I get when I read the ruling. All the Federal Government has to do is show a rational basis for something affecting commerece anywhere and it has the power to regulate it. That for all intents and purposes means anything and everything. The problem is that limiting sex on the basis of prostitution does not follow a rational basis. Marijuana is a good. It’s growth, even for personal use has direct effects on the market (even if that is a black market). If sex was a service, you would have a point that it can be considered commerce, but I think most would disagree with the characterization of sex in that way. Therefore saying that sex should be regulated as commerce because prostitution is selling sex does not pass rational basis. Furthermore, for all intents and purposes, it seems anything to do with goods will fall under commerce, but anything to do with personal behavior (outside of selling something, advertising, or other things you’d do in a business setting) will not fall under commerce. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [June 8, 2005, 10:57pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/126 "2005-06-08T22:57:49Z")
> [@ISiddiqui](#): > > Well, what I said applies for both scenarios. Lesbian sex and sex with your spouse are not commerce nor ‘services’. No court would say they even come close to passing a rational basis linking them to dildos and mail order brides. > > Rational basis isn’t an automatic win for the government. The government has lost on rational basis tests. Maybe I am missing something here but I don’t see how marijuana used under the instruction of a physician and regulated by the State has any more impact on a market than lesbians do on the Dildo market. The amount of marijuana used under this law is miniscule in comparison to the amount of marijuana consumed in the country at large. I would wager that banning lesbian sex and enforcing it as strictly as they do with marijuana would have just as much if not more effect on the market than banning medical marijuana. > [@ISiddiqui](#): > > The problem is that limiting sex on the basis of prostitution does not follow a rational basis. Marijuana is a good. It’s growth, even for personal use has direct effects on the market (even if that is a black market). If sex was a service, you would have a point that it can be considered commerce, but I think most would disagree with the characterization of sex in that way. Therefore saying that sex should be regulated as commerce because prostitution is selling sex does not pass rational basis. I think most people would also disagree that growing a plant in your private garden for personal consumption constitutes commerce also. But again most people isn’t the test, its whether there is a rational basis for believing the law would affect commerce. Certainly requiring a permit for sex would discourage prostitution which is no less of commerce than exchanging money for goods. > [@ISiddiqui](#): > > Furthermore, for all intents and purposes, it seems anything to do with goods will fall under commerce, but anything to do with personal behavior (outside of selling something, advertising, or other things you’d do in a business setting) will not fall under commerce. This is the problem I have with your reasoning. Why does a physical object that you do not sell, do not advertise and do not do anything related to business count as commerce on the sole basis that someone else sells it? On what basis does the classification change just becuase it is a service instead of an object? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 9, 2005, 2:24am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/127 "2005-06-09T02:24:01Z")
> [@ISiddiqui](#): > > For all intents and purposes if its deemed **commerical** , Congress can regulate. Any \*\*commerce \*\*will fall under the three prongs the way they have been defined. So while technically that isn’t the test, in application it seems that is the test, even if it is not explicitly stated. (Emphasis added). There you go again, using the terms interchangeably. Do you have any authority to support this position? Moreover, if something commercial will fall under the three categories, then why do we need an additional concept? More important, if it “falls under,” then the notions of interstate commerce and commercial are not coterminous–there are types of interstate commerce that are not commercial. So commerciality is neither neccessary nor sufficient to determine whether an act is within the commerce power. > [@](#): > > How is carrying a gun part of the ‘commercial process’? Is it manufacturing, production, selling? A gun being used in an interstate drug crime doesn’t make carrying the gun something commerical. How about carrying or possessing pot? Because that’s what happened in this case: > [@](#): > > After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, > after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants. > > Respondents thereafter brought this action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA), 84 Stat. 1242, 21 U. S. C. §801 et seq., to the extent \*\*it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. Would it make any difference if it the ban were part of an integrated regulatory scheme like the CSA? We’ve already had statutes regulating what kinds of weapons and ammunition can be sold and how and to whom they may be sold. How about if Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any firearms, except in the manner authorized by the act (of Course the Act would have to give lip service for possession of firearms reasonably related to the preservation or efficiency of a well-regulated militia? And while we are at it, how about one that bans any personfrom possessing a machinegun? [http://frwebgate1.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=283202168067+0+0+0&WAISaction=retrieve](http://frwebgate1.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=283202168067+0+0+0&WAISaction=retrieve) or a sawed-off shotgun? [http://www.usdoj.gov/usao/ct/Press2005/20050318-1.html](http://www.usdoj.gov/usao/ct/Press2005/20050318-1.html) Is it manufacturing, production, selling? ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [June 9, 2005, 3:49am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/128 "2005-06-09T03:49:25Z")
> [@treis](#): > > Congress could ban lesbian sex on the basis that lesbians engaging in sex increases the demand for dildos. [Although in this case Loving may be more pertinent.] > > Congress could ban sex with your spouse on the basis that it would encourage single people to purchase a mail-order bride. > > Sex (a service) without an exchange for money is no different than growing pot (manufacturing) without selling it. Actually, under _Lawrence v. Texas_ sex without an exchange for money is quite different. There the Court ruled that people have a liberty interest in private, consentual, non-commercial sexual conduct. Despite congress’s general Commerce Clause powers, the _Lawrence_ liberty interest would prevent congress from regulating lesbian or spousal sex, though it most likely regulate or prohibit prostitution, a commercial activity that most likely could be rationally believed to have interstate commerce effects. Perhaps a more straightforward example would be that under the First Amendment Free Press Clause, congress most likely could not prohibit or substantially limit the publication of newspapers, even though they clearly move in interstate commerce. However, if a product or service that moves in or affects interstate commerce, unless there is some other constitutional protection, it appears that congress can regulate or prohibit its sale or general possession. ---
**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 9, 2005, 4:55am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/129 "2005-06-09T04:55:51Z")
ISiddiqui, I think the things your saying are failing to take into account the complete wording here… according to Wickard, Congress can not only regulate interstate commerce, it can regulate _anything that would affect_ interstate commerce. And EVERYTHING we do, say, watch, hear, but, eat, drink etc. can be said to have _some effect_. I mean, if I build a big fire, and smoke gets blown downwind to the next state, and now people’s cars have ash on em, so they have to go to the car wash, which gets it’s detergent from a third state… oops, now I have affected interstate commerce with my leaf-burning, and the feds can now step in. The gun I’m carrying near the school? It frightens children, which causes them to want fewer Happy Meals. Now the feds can step in. I can see an endless stream of easily-justified regulatory action, and the color of the stream is brown. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [June 9, 2005, 5:16am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/130 "2005-06-09T05:16:01Z")
Actually the gun law was found to be unconstitutional in Lopez. A quote I found humorous from that ruling: > [@](#): > > JUSTICE BREYER rejects our reading of precedent and argues that “Congress . . . could rationally conclude that schools fall on the commercial side of the line.” Post, at 16. Again, JUSTICE BREYER’S rationale lacks any real limits because, depending on the level of generality, any activity can be looked upon as commercial. Under the dissent’s rationale, Congress could just as easily look at child rearing as “fall[ing] on the commercial side of the line” because it provides a “valuable service - namely, to equip [children] with the skills they need to survive in life and, more specifically, in the workplace.” Ibid. We do not doubt that Congress has authority under the Commerce Clause to regulate numerous commercial activities that substantially affect interstate commerce and also affect the educational process. That authority, though broad, does not include the authority to regulate each and every aspect of local schools. Basically the Court is saying sure we realize we are giving Congress broad control but everyone knows that somehow it can’t regulate all aspects of local government. The logical arguments at where the line is drawn of course are conviently left out. ---
**Author:** ![ISiddiqui](https://avatars.discourse-cdn.com/v4/letter/i/97f17d/32.png) [@ISiddiqui](https://boards.straightdope.com/u/ISiddiqui)\ **Post date:** [June 9, 2005, 5:17am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/131 "2005-06-09T05:17:39Z")
> [@treis](#): > > Maybe I am missing something here but I don’t see how marijuana used under the instruction of a physician and regulated by the State has any more impact on a market than lesbians do on the Dildo market. The amount of marijuana used under this law is miniscule in comparison to the amount of marijuana consumed in the country at large. I would wager that banning lesbian sex and enforcing it as strictly as they do with marijuana would have just as much if not more effect on the market than banning medical marijuana. How do lesbians have an effect on the dildo market anyway? I’d wager that the majority of users are straight women and I don’t think the sexual orientation of the person determines if they will get a dildo. Furthermore, being a lesbian isn’t a service. Marijuana used by doctor’s perscriptions will result in more growing of pot. Imagine if every state allowed this. The effect would be vast. > [@](#): > > I think most people would also disagree that growing a plant in your private garden for personal consumption constitutes commerce also. But again most people isn’t the test, its whether there is a rational basis for believing the law would affect commerce. Certainly requiring a permit for sex would discourage prostitution which is no less of commerce than exchanging money for goods. Apparently enough people agree, including 6 member of the Supreme Court ;). And isn’t ‘rational basis’ a standard requiring that the people agree (somewhat). People who think that labeling sex, by itself, as commerce (or affecting commerce) is irrational are not going to think the government has passed a rational basis test. > [@](#): > > This is the problem I have with your reasoning. Why does a physical object that you do not sell, do not advertise and do not do anything related to business count as commerce on the sole basis that someone else sells it? On what basis does the classification change just becuase it is a service instead of an object? You have yet to show me that any of your examples include ‘services’. Sex with your spouse/girlfiend and lesbian sex aren’t services, unless there is a transaction of money. > [@GFactor](#): > > using the terms interchangeably As one of the definitions of commerical is “Engaged in commerce”, I’m not sure that it matters. > **[Definition of commercial | Dictionary.com](https://www.dictionary.com/browse/commercial)** > > Definition of commercial from Dictionary.com, the world’s leading online source for English definitions, pronunciations, word origins, idioms, Word of the Day, and more. > [@](#): > > More important, if it “falls under,” then the notions of interstate commerce and commercial are not coterminous–there are types of interstate commerce that are not commercial. So commerciality is neither neccessary nor sufficient to determine whether an act is within the commerce power. What?! Where did you pull this from? I said any commerce will fall under the three prongs. That means any commerical activity. That means that there are no types of interstate commerce that are not commerical. > [@](#): > > How about carrying or possessing pot? That’s where I disagree with the Court. I have no problem with them saying that medical marijuana falls under the Commerce Clause. However, I do not believe that carrying or possessing drugs falls under Congress’s Commerce Clause power. If the states want to legalize carrying or possessing a small amount that is fine with me. However, I realize that the Court has said that falls under Congress’ power. I believe they used the ‘necessary and proper clause’, at least that is what I got from Scalia’s opinion, that it undermines the federal government’s ability to fight interstate drug trafficking or some sort of thing. > [@Snowboard Bo](#): > > ISiddiqui, I think the things your saying are failing to take into account the complete wording here… according to Wickard, Congress can not only regulate interstate commerce, it can regulate anything that would affect interstate commerce. And EVERYTHING we do, say, watch, hear, but, eat, drink etc. can be said to have some effect. I think you are overstating things. Wikard has been limited in its ability to regulate “everything” because Congress asserts some tiny interstate commerical effect by the cases of Lopez and Morrison, as one of your examples… > [@](#): > > The gun I’m carrying near the school? It frightens children, which causes them to want fewer Happy Meals. Now the feds can step in. Actually in US v. Lopez, the Supreme Court ruled that federal laws that prohibited carrying a gun in X yards of a school was beyond Congress’ Commerce Clause power. And that case came quite a bit after Wickard was established precedent. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [June 9, 2005, 5:26am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/132 "2005-06-09T05:26:25Z")
> [@ISiddiqui](#): > > How do lesbians have an effect on the dildo market anyway? I’d wager that the majority of users are straight women and I don’t think the sexual orientation of the person determines if they will get a dildo. Furthermore, being a lesbian isn’t a service. Marijuana used by doctor’s perscriptions will result in more growing of pot. Imagine if every state allowed this. The effect would be vast. I don’t know exactly but is it rational to think that it would have an effect? I mean you do realize how miniscule a couple sick people in California growning and smoking their own dope has on the national marijuana market? > [@ISiddiqui](#): > > Apparently enough people agree, including 6 member of the Supreme Court ;). And isn’t ‘rational basis’ a standard requiring that the people agree (somewhat). People who think that labeling sex, by itself, as commerce (or affecting commerce) is irrational are not going to think the government has passed a rational basis test. No my understanding of rational basis is just that. Congress just needs to show they have a rational reason to believe that the law they pass will impact interstate or foreign trade. > [@ISiddiqui](#): > > You have yet to show me that any of your examples include ‘services’. Sex with your spouse/girlfiend and lesbian sex aren’t services, unless there is a transaction of money. Why do you require a transfer of money for a service to be considered commerce yet no such money transfer is required for a physical object? I don’t understand the distinction here: Sex for money=commerce, growing drugs for money=commerce, Sex not involving money transer=not commerce, growing drugs without money transer=commerce. Why are services excluded from commerece if money doesn’t change hands? What if I don’t charge you and help you gardening does that constitute commerce? ---
**Author:** ![ISiddiqui](https://avatars.discourse-cdn.com/v4/letter/i/97f17d/32.png) [@ISiddiqui](https://boards.straightdope.com/u/ISiddiqui)\ **Post date:** [June 9, 2005, 5:45am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/133 "2005-06-09T05:45:57Z")
> [@treis](#): > > I don’t know exactly but is it rational to think that it would have an effect? I mean you do realize how miniscule a couple sick people in California growning and smoking their own dope has on the national marijuana market? I don’t think the lesbians to dildo line is very rational at all. And it isn’t just a couple of sick people in California, but what would happen if, for example, every state had a med marijuana program and millions used these programs. > [@](#): > > No my understanding of rational basis is just that. Congress just needs to show they have a rational reason to believe that the law they pass will impact interstate or foreign trade. And that I think is the problem with your examples, you picked them for their irrationality ;). > [@](#): > > Why do you require a transfer of money for a service to be considered commerce yet no such money transfer is required for a physical object? I don’t understand the distinction here: Sex for money=commerce, growing drugs for money=commerce, Sex not involving money transer=not commerce, growing drugs without money transer=commerce. Why are services excluded from commerece if money doesn’t change hands? > > What if I don’t charge you and help you gardening does that constitute commerce? I don’t think Congress or the Courts would characterize “sex not involving money transfer” as services, that is why I put the money part in there to distinguish the part that would be called services by people and that which would not. If you help with the gardening? Yeah, I can see that as a service under commerce. After all, there may be an implied barter for future free services down the line. Once again, I’m not saying that free services don’t count as commerce, I’m saying sexual relations, which are not prostitution, would not be considered services by a vast, vast majority of people, especially those in Congress and the Courts. ---
**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 9, 2005, 5:50am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/134 "2005-06-09T05:50:38Z")
> [@treis](#): > > Why do you require a transfer of money for a service to be considered commerce yet no such money transfer is required for a physical object? I don’t understand the distinction here: Sex for money=commerce, growing drugs for money=commerce, Sex not involving money transer=not commerce, growing drugs without money transer=commerce. Why are services excluded from commerece if money doesn’t change hands? > > What if I don’t charge you and help you gardening does that constitute commerce? It doesn’t have to consitute commerce on it’s own, it only has to affect (interstate) commerce. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [June 9, 2005, 6:00am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/135 "2005-06-09T06:00:52Z")
> [@ISiddiqui](#): > > If you help with the gardening? Yeah, I can see that as a service under commerce. After all, there may be an implied barter for future free services down the line. Not married are we? 😉 ---
**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 9, 2005, 12:03pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/136 "2005-06-09T12:03:24Z")
> [@Gfactor](#): > > 1. I thought that decision sucked, too. > 2. How would you design the system so that decisions like that could not happen? > 3. Intentionally or not, sometimes all judges get the wrong answer. But that does not prove that there are not right answers. And this presents a problem for those who design legal systems. At some point, error correction must stop. At some point the need for \*an answer \* trumps the need for the right answer. Oh, I have to redesign the federal judiciary to make my point, eh? If Mr. Smith knocks over a liquor store and I say he did a bad thing, I have to devise a system for keeping liquor stores from ever being robbed again, or my complaint has no bearing, eh? Interesting viewpoint. Still, I accept your challenge. Offhand, how about a law that allows judges to say in essence: “The law compels decision Y from me. But this is one of those cases where decision Y would be an affront to ordinary decency and morality. A woman who has brain cancer obviously has far bigger problems than some kid looking to get high. Invoking the power of the federal judiciary to prosecute her is insanely cruel and stupid, therefore we rule that although the feds may have the power to prosecute people when they use drugs recreationally, you have to make an exceptional for really ill people who are just trying to get better.” This would also work in the lower courts, frex, the case where a guy was jailed for life under California’s “three strikes” law for stealing a bicycle. You could call it “The Insanely Cruel and Stupid Exception” rule. > [@](#): > > But let me ask you this. How far does the moral force of law go. Am I morally obligated to follow a law just because its the law? Am I free to ignore any old law that I don’t like, or does it have to offend my highest moral principles? The system and its agents claim that the system is justified in enforcing judge’s decision because it applies a fair system. If, in an individual case, I think the system has been unfair, does that change my moral obligation to follow the law? Obviously, citizens must be free to disobey laws that are insanely cruel and stupid. I mean, wasn’t that the basis for the prosecutions at Nuremburg? Surely if we were willing to prosecute Germans for obeying their laws, implying that they should not have done so, we should hold our citizens to the same standard. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 9, 2005, 2:14pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/137 "2005-06-09T14:14:34Z")
> [@Evil Captor](#): > > Oh, I have to redesign the federal judiciary to make my point, eh? If Mr. Smith knocks over a liquor store and I say he did a bad thing, I have to devise a system for keeping liquor stores from ever being robbed again, or my complaint has no bearing, eh? Interesting viewpoint. Let’s not get our undies in a bunch. I was responding to this: > [@](#): > > Originally Posted by **Evil Captor** > I would feel like a fool if I took the Supreme Court at their word wrt to their decisions after the Florida election decision of 2000. I judge them as what they are … a bunch of cheap partisan hacks doing whatever appeals to their partisan interests and their venal impulses. Were you just venting? If you are comaring this complaint to a complaint about a liquor store robbery, in the case of the liquor store robbery, you’d be seeking justice by calling the cops and asking them to investigate and arrest the culprit; in the case of your dissatisfaction with the Supreme Court (I took it to be that cheap partisan hacks are on the court and deciding cases based on disingenuous rationales–a criticism that has been laid by many at various times in history), I was simply wondering what would meet your criticism. > [@](#): > > Still, I accept your challenge. Offhand, how about a law that allows judges to say in essence: “The law compels decision Y from me. But this is one of those cases where decision Y would be an affront to ordinary decency and morality. A woman who has brain cancer obviously has far bigger problems than some kid looking to get high. Invoking the power of the federal judiciary to prosecute her is insanely cruel and stupid, therefore we rule that although the feds may have the power to prosecute people when they use drugs recreationally, you have to make an exceptional for really ill people who are just trying to get better.” Some legal theorists would argue that an immoral law is no law at all, or a more sophisticated version of this, as [Ronald Dworkin](http://en.wikipedia.org/wiki/Ronald_Dworkin) does: the law includes the highest moral principles of a society, and it is the judge’s obligation to interpret the law with these in mind. But this doesn’t answer your objection. Even Dworkin would admit that sometimes judges get the wrong answer. My question was, how do we design a system for correcting the errors of our court of last resort. Adding another layer of appeal won’t work (what if that court got the wrong answer?), so what will? > [@](#): > > You could call it “The Insanely Cruel and Stupid Exception” rule. Around here, we call it substantive due process. 😉 > [@](#): > > Obviously, citizens must be free to disobey laws that are insanely cruel and stupid. I mean, wasn’t that the basis for the prosecutions at Nuremburg? Surely if we were willing to prosecute Germans for obeying their laws, implying that they should not have done so, we should hold our citizens to the same standard. The question remains: who decides? I agree that one need not follow an immoral law. One that I simply disagree with OTOH, well if everybody did that, where would we be? Nuremberg is one of the classic cases. It gave rise to one of the best known [debates](http://www.sixthform.info/law/01_modules/mod6/15_01_law_and_morality/07_hart_fuller.htm) in legal theory between Lon Fuller and H.L.A. Hart. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [June 9, 2005, 2:53pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/138 "2005-06-09T14:53:12Z")
> [@ISiddiqui](#): > > I don’t think the lesbians to dildo line is very rational at all. And it isn’t just a couple of sick people in California, but what would happen if, for example, every state had a med marijuana program and millions used these programs. You think there are millions of people in the US with terminal deseases that would be eligible for medical marijuana? I coulnd’t find the exact number but I would be suprised if it were more than a couple hundred in California. > [@ISiddiqui](#): > > I don’t think Congress or the Courts would characterize “sex not involving money transfer” as services, that is why I put the money part in there to distinguish the part that would be called services by people and that which would not. Hang on, the hypothetical law was requiring a permit and a medical examination before each sexual encounter. The justification for this would be that it would make prostitution safer/harder to get. Certainly there is a rational reason to believe that is true. > [@ISiddiqui](#): > > Once again, I’m not saying that free services don’t count as commerce, I’m saying sexual relations, which are not prostitution, would not be considered services by a vast, vast majority of people, especially those in Congress and the Courts. Of course they aren’t but how is a private garden any more of commerce than private intercourse? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 9, 2005, 3:29pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/139 "2005-06-09T15:29:34Z")
> [@ISiddiqui](#): > > As one of the definitions of commerical is “Engaged in commerce”, I’m not sure that it matters. > > [http://dictionary.reference.com/search?q=commercial](http://dictionary.reference.com/search?q=commercial) Ya see, that’s the thing. First, if as you say commercial means commerce, then why not just say commerce? It’ll save you two keystrokes. Using two terms for the same idea just confuses the matter. But you seem to go back and forth, sometimes using “commercial” in the sense of paying money for stuff. \*E.g., \* > [@](#): > > Has to be commerce, or a commerical activity. Growing marijuana plants is considered a commerical activity (growing crops can affect supply and demand and marijuana is an agg crop… simply because it is illegal doesn’t mean that isn’t commercial anymore). Growing crops is considered part of the commerical process (manufacturing). Something like sex, by itself, is not commerce. The act of sex is not considered commercial, well unless someone is paying you for it . But neither commercial nor commerce is the legal test. Here is the test. Again: > [@](#): > > In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine **whether respondents’activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.** So to be covered by Congress’s Commerce Power an act need not be in itself commercial. It need only when aggregated with other activities, substantially affect commerce. It seems to me that some of the time you use commercial as an additional requirement, but when I point that out, you back off and say commercial just means that it satisfies the test quoted above. That’s called [equivocation](http://en.wikipedia.org/wiki/Equivocation). Bottom line, if commercial just means that it passes the commerce clause test, then it doesn’t add a thing to the discussion. If it is a new limitation, is it your own, or do you have some authority for its existence in the cases? > [@](#): > > What?! Where did you pull this from? I said any commerce will fall under the three prongs. That means any commerical activity. That means that there are no types of interstate commerce that are not commerical. At best, a tautology. Are there commercial things that aren’t interstate commerce? > [@](#): > > That’s where I disagree with the Court. I have no problem with them saying that medical marijuana falls under the Commerce Clause. However, I do not believe that carrying or possessing drugs falls under Congress’s Commerce Clause power. If the states want to legalize carrying or possessing a small amount that is fine with me. > > However, I realize that the Court has said that falls under Congress’ power. I believe they used the ‘necessary and proper clause’, at least that is what I got from Scalia’s opinion, that it undermines the federal government’s ability to fight interstate drug trafficking or some sort of thing. Huh? Necessary and Proper and Commerce Clause have been a conceptual pair at least since 1838: > [@](#): > > Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to “make all Laws which shall be necessary and proper” to “regulate Commerce . . . among the several States.” U. S. Const., Art. I, §8. That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme. (Opinion of Court) > [@](#): > > Rather, as this Court has acknowledgedsince at least United States v. Coombs, 12 Pet. 72 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. Id., at 78; Katzenbach v. McClung, 379 U. S. 294, 301–302 (1964); United States v. Wrightwood Dairy Co., 315 U. S. 110, 119 (1942); Shreveport Rate Cases, 234 U. S. 342, 353 (1914); United States v. E. C. Knight Co., 156 U. S. 1, 39–40 (1895) (Harlan, J., dissenting).1 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. (Scalia concurring). And the clause certainly seems to justify the application: > [@](#): > > To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. [U.S. Constitution: Article I](http://caselaw.lp.findlaw.com/data/constitution/article01/) That’s why the standard I have been quoting is so broad. It goes way beyond money changing hands and stuff being sent between states. If I understand you correctly, you are saying that you didn’t know this, and you don’t have any authority to the contrary. In other words, what we have been talking about is not your interpretation of current Commerce Clause cases, but your opinion about how commerce clause cases ought to be decided (I don’t intend this as a criticism–I’m just trying to figure out if we are on the same page, because the rules are different for that kind of discussion). So you disagree with the entire pot decision, except that the part where the Court impliedly approves the law prohibiting marijuana cultivation? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 9, 2005, 3:40pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/140 "2005-06-09T15:40:58Z")
Eep. If a mod could fix the coding on that one, I’d consider it a personal favor. [Previous page](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275.md?page=6) [Next page](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275.md?page=8)