The U.S. Supreme Court just ruled that people who grow their own marijuana for personal medical use on a doctor’s orders can be federally prosecuted.
What’s the reasoning behind this?
This is recent news, so the articles I’ve seen don’t explain it. For example, article in NY Times
I haven’t read the decision yet, but it seems interesting: the Stevens group included Scalia, from what I can see, and O’Connor led the dissent. The gist of it is that the federal government can regulate interstate commerce, and because medical marijuana impacts interstate commerce, the federal government’s regulations of it can trump conflicting state law. So the dissent is being characterized as “pro-states’ rights” and the majority as “pro-federal regulation.” Which makes me wonder why Scalia is in the majority.
Watch this blog for analysis later in the day as the scholars read and post.
They’e just posted a slightly more complete article. Here’s an excerpt:
Here’s a link to the decision itself: PDF File from the Supreme Court
The key issue is the extent of the Commerce Clause of the U.S. Constitution, which permits congress to regulate interstate and international commerce. The petitioners arguments (in favor of medical marajuana use) were that the private growth of medical marajuana for medical purposes solely within California and not involving any sale was not part of interstate commerce that could be regulated by congress.
The court majority relied on older case law holding that congress could regulate intra-state conduct that has an effect on interstate commerce. The court found this case to be virtually identical to Wickard v.Filburn, 317 U.S.111 (1942), which upheld federal wheat price and production controls as applied to a small farmer growing wheat for personal use on the grounds that growing of wheat for personal use across all of the farmers that would do so would affect interstate commerce.
They found that congress could rationally determine that local possession or sale of marajuana would affect the interstate market, so the prohibition of marajuana sale or possession, as part of the comprehensive Controlled Substances Act, was a proper regulation of interstate commerce.
This was an easy one to call. I am a bit surprised by the split. I thought Thomas would be the only one in dissent, but given that it’s closer than 8-1, I’m surprised Scalia joined the majority.
–Cliffy
Somebody please explain to me why it took a Constitutional Amendment to Prohibit Alcohol, but just a simple Law to Prohibit a Plant? Could not Congress now use this Ruling to outlaw Alcohol?
Damn Activist Judges.
George Orwell only got the date wrong.
Peace through Liberty
rwjefferson
The only reason I can imagine for Scalia to have joined the majority is respect for stare decisis.
IANAL, but it seems to me that this argument would apply to anything. Is there some property that marijuana and wheat have that would make this argument apply to them, where it would not apply to (say) books or electricity or baseball players?
What “interstate market” are they worried about here? The black market?
Yes, among others.
–Cliffy
According to Justice O’Connor, the marijuana at question was grown and produced by the users themselves, and didn’t involve interstate commerce in any way shape or form. She asked, “If the Federal government can regulate this, it can regulate anything.”
That’s pretty close to what I learned in law school. But that was before *Lopez *and Morrison.
I’m not surprised by the result. At all.
Was Justice O’Connor sick the day her ConLaw prof taught Wickard? 
–Cliffy
Do you consider this case an example of a right the judiciary made up out of the cloth?
WIthout putting words in his mouth, I think Bricker was making an observation, not a normative statement. To expand, I’m surprised that, if there were multiple dissenters, the author of U.S. v. Lopez was not amongst them.
–Cliffy
Probably I’m misunderstanding something here, but people are making it sound like only states can pass a law unless it has something to do with commerce. Are all federal drug laws based on the commerce clause? What about federal laws on marriage, schools, etc.?
Is it typical for the majority decision to rip on the dissenting opinions as often as in this ruling? I can’t remember anything like some of the statements in any other decision that I have read.
This “simple law” didn’t just prohibit a plant. A large (but probably not controlling) part of the court’s analysis was that the prohibition of marijuana was just a small part of the comprehensive scheme regulating drugs in the U.S.
Under the 1970 Controlled Substances Act, drugs are classified into five schedules based on their medical use and possibility for abuse. Marijuana was classified into Schedule I, because, under the law: “Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment.§812(b)(1).” The sale or possession of Schedule I drugs is prohibited, except in authorized research programs. (Schedule II drugs such as cocaine are have recognized medical use, and may be validly perscribed, though with significant assocated recordkeeping. Schedule III and lower drugs may also be prescribed, but with respectively less recordkeeping and other burdens)
Marijuana was originally classified on Schedule I by congress in the CSA, and the courts have noted that efforts to have it rescheduled to a less restrictive schedule (by NORML, among others) have failed. Although advocates claim that marijuana has a valid medical use, they would have to convince the Department of Health & Human Services or congress of that to change the schedule.
Under current commerce clause jurisprudence, much of which developed after prohibition, congress could probably restrict or prohibit commerce in or possession of most any product (except possibly for alcohol due to the prohibition-repeal amendment’s reservation of alcohol regulation to the states). More or less, if it is traded in interstate commerce, the federal government can regulate it, unless it is otherwise constitutionally protected. borschevsky asked about regulation of “books or electricity or baseball players.” Electricity is currently the subject of significant federal regulation and has a whole regulatory agency for it (FERC). In the Curt Flood case, the Supreme Court only continued to apply baseball’s anti-trust exemption to the game because congress had not acted on prior anti-trust cases (practically inviting congress to act, an invitation which it has not accepted). Regulation of books would be problematic because of First Amendment freedom of the press.
This was very much not a case of activist judges. As far as I could tell, this is a straightforward application of the Supremacy Clause and prior case law that federal legislation on products in interstate commerce supercedes state law on the matter. I too am surprised that this case drew three judges in dissent, or indeed any dissent at all (and that Justice O’Connor was a dissenter–I’m reasonably sure that Wickard would have been called to her attention sometime during the proceedings even if she had missed that day in class, and besides, who could forget Ollie’s Barbeque). And Bricker, Cliffy and treis, you should read Justice Scalia’s concurrence to see why he joined the majority, and his views of the limits of the commerce clause under decided case law.
As to Satasha’s question of what was the “interstate market”, the CSA regulated interstate commerce in drugs of all kinds. Prior case law is quite clear that congress can regulate interstate commerce in a product by prohibiting it altogether, and this is the case for Schedule I drugs. Indeed, the interstate black market was a substantial issue here in that there was a strong view in the majority that because of the possibility that if personal use medical marijuana could be easily diverted into the illegal interstate drug trade, congress could properly prohibit it.
jackdavinci, under the Tenth Amendment to the Constitution, congress’s power is limited to passing laws on the subjects listed in Article I, Section 8 including matters “necessary and proper” to carry the listed items. However, commerce clause, the power “To regulate Commerce with foreign Nations, and among the several States”, has been interpreted to broadly permit regulation of products and services that are involved in or affect interstate commerce. Some believe that this power has been intrepreted too broadly and give congress too much power. Recently, the outer limits of the commerce clause power has been explored in cases like Lopez, which invalidated the federal Gun-Free School Zone Act, and Morrison, which overturned the federal Violence Against Women Act. These two cases were relied upon by the dissent to argue that the CSA’s regulation of marijuana went too far, but the majority believed that they should not be used to create an exception to a generally applicable and valid regulatory scheme like the CSA.
As to the overall question of whether medical marijuana should be permitted under law (and indeed the question of judicial activism), the conclusion to the majority opinion is instructive:
IANAL, but-- Wheat is not a Schedule I controlled substance. I’m reading today’s decision and it seems like the court is kind of hedging its bets. On the one hand, they’re saying that people can be prohibited from growing or making anything that the states or federal government want to control in any way, for whatever reason (because of Wickard). But they go on to imply that if it could be shown that there were something wrong with the Controlled Substances Act, then growing marijuana might be permitted??? These seem like two entirely separate and unrelated or even contradictory arguments.
If I wanted to grow small amounts of tobacco at home for my own use, presumably that could also be prohibited (because of Wickard)??
What made the case hard at all was the Court’s more recent commerce clause cases, which reinterpretted commerce clause cases from the New Deal to the present as offering Congress a much more restricted commerce power than most commentators read them to offer.
http://slate.msn.com/id/2110204/
The reasoning in *Wickard * has been criticized as giving Congress plenary power because it imposed such a lax standard of review. As the quotation above shows, after Wickard, many lawyers and commentators believed that the standard permitted Congress to do just about anything as long as some rationale, no matter how far-fetched, could tie the law to interstate commerce. As I indicated, that is what I was taught in law school, and that is what I learned when I prepared for two different multi-state bar exams.
Then the Court struck down two laws that seemed to fit within the pattern of laws that had been upheld by previous courts, and observers believed that the Court was reigning in the commerce power.* And now the Court is back to the old, broad formulation:
(Emphasis added).
That’s the interesting part.
*
And see, *http://en.wikipedia.org/wiki/Commerce_clause for a brief summary of commerce clause jurisprudence.
*I represented one of the *amici * in Lopez.