The Electric Commentary

Monday, June 28, 2004

Distinguishing Medical Marijuana from Recreational Pot

The Supreme Court has granted cert in Raich v. Ashcroft. This case, an appeal from the 9th circuit, asks the Supreme Court to determine whether sick people in california who grow and use marijuana under doctor's orders are subject to the federal drug ban. The decision could make a big impact on the reach of the Interstate Commerce Clause.

The Interstate Commerce Clause has, for much of its history, been the tool of the government to do what it wants. Case law relating to the clause has consisted of the courts extending its power beyond what the framers could have possibly intended the clause to mean using terms like "having a substantial effect" on interstate commerce. The extention of the clause culminated in Wickard v. Filburn, a case in which the Court held that a farmer who grew wheat, for personal consumption, beyond the quotas of the Agricultural Adjustment Act was subject to congress under the Interstate Commerce Clause. The court finally put an end to its ridiculous extension on the Interstate Commerce Clause in two important decision. The first was Lopez, a case in which the court held that Congress did not, under the Interstate Commerce Clause, have the power to make a federal law forbidding people from carrying guns near schools. The second was Morrison, a case in which the Court held that Congress did not have the power to pass a federal law that provides a civil remedy for gender-motivated violence.

Raich, however, has the potential to put Commerce Clause jurisprudence back to the Wickard standard. Ann Althouse notes the similarity between Raich and Wickard:

"The 9th Circuit solved that problem by characterizing the homegrown medical use as separate from the commercial market in marijuana, both "the broader illicit drug market -- as well as any broader commercial market for medicinal marijuana." The idea is that a home-growing, recreational user could quite easily turn to selling his crop, and the need to control the market justifies reaching him, but the home-growing medical user does not pose a similar risk, so Congress cannot similarly justify looping the medical patient into the large federal scheme to control the sale of marijuana. A key precedent(Wickard) involves a farmer who grew more than his allotment of wheat, but planned to use the wheat on his farm and not sell it. The Court saw the wheat as "overhang[ing] the market": the farmer might change his plan and sell the wheat. Thus, Congress, pursuant to a plan to control supply in the wheat market, could also regulate the home-consumed wheat. Similarly, the Controlled Substances Act means to control the market in marijuana, and people who claim their crop is for home use might turn around and sell it, so controlling their production is a legitimate part of controlling the market. Will the Court say the medical users' supply does not overhang the market? Arguably, these users are off in a different sphere of life where they are not tempted to become dealers."

Althouse's understanding of the Wickard decision seems to miss a key point. The Court did not say that the farmer could not grow wheat for personal use because he may change his mind and sell it if the market was good. They said he could not grow his own wheat beyond the quota because, if he was growing his own wheat, he was not buying other wheat and therefore affecting the market and in turn affecting interstate commerce. This decision will probably have less of an impact on the Raich case than Althouse contends because there is no legal market for marijuana. Could the court really argue that Raich can't grow her own marijuana for personal use because it affects the market, and interstate commerce, by making it unnecessary for her to buy it elsewhere?

The problem is this idea applies equally to those that grow marijuana for medicinal purposes and those that grow marijuana to make Pink Floyd tolerable. Either way, it is beyond the power of commerce to stop them because it wants them to participate in the weed-market. The Court won't see it that way but hopefully they will at least find some way to distinguish medical marijuana from recreational marijuana.

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