From Reuters:
The federal government has the power to prevent sick patients from smoking home-grown marijuana that a doctor recommended to relieve chronic pain, a divided U.S. Supreme Court ruled on Monday in a setback for the medical marijuana movement.
The 6-3 ruling means the federal government can enforce a federal law prohibiting the cultivation, possession and use of medical marijuana even where it is legal under state law. At least nine states allow medical use of marijuana.
Justice John Paul Stevens said for the court majority that the federal law, the Controlled Substances Act of 1970, was a valid exercise of federal power by the U.S. Congress “even as applied to the troubling facts of this case” involving two seriously ill California women.
Stevens […] said the question before the court was not whether it was wise to enforce the federal law in these circumstances, but only whether Congress has the power to adopt such a law.
Stevens said the democratic process might be more important than the legal challenges and added that supporters of medical marijuana “may one day be heard in the halls of Congress.”
The ruling was a victory for the Bush administration, which appealed to the Supreme Court after a federal appeals court in California ruled for the two women.
Well, so much for states’ rights. To be clear, this ruling is nothing to do with legalizing drugs and everything to do with federal overreach (specifically on the part of the Justice Dept). To justify this ruling under the Commerce Clause means that just about anything the Court chooses to justify with the Commerce Clause is fair game, which, in effect, means that federalism is truly moribund—just one more piece of ideology jurists can summon when useful, or dismiss when inconvenient, if they find themselves inclined toward massaging the law to fit a personal belief.
Which, isn’t that the very definition of judicial activism?
Or, to put it more bluntly, there is nothing conservative about the prospect of federal law enforcement officers going state to state arresting sick people who’ve opted to make use of a plant, prescribed by doctors, to relieve their pain. I’m eager to see the how the social conservatives who supported Lawrence (as I did, provisionally—though I’m anything but a social conservative) will react to this. Hopefully they won’t tie themselves in knots trying to reconcile the two decisions…
Now if you’ll excuse me, I think I’ll go engage in a little civil disobedience. BECAUSE OF THE HYPOCRISY! AND THE FUNYONS!
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More: David Bernstein, writing at Volokh, notes:
The five-member majority of the Court simply does not take federalism seriously[…]
I predicted the outcome of this case […] on the theory that wavering Justices such as Kennedy, who voted with the majority, would be affected by political trends apparent in the United States. When Kennedy voted with the majority in Lopez, congressional Republicans were making serious (albeit hamhanded) efforts to limit the federal government, and their rhetoric was even more strongly devolutionary. A decade later, the Republican Congress is vying with the Democratic Congresses of the 1930’s and 1960’s as the biggest supporter of increased federal power in American history. Scalia’s vote was also likely affected by the sense that the Court should not expend political capital, especially with new Republican nominees soon to be voted on, on trying to limit federal power without any support from the political branches.
[…] There are essentially two strategies for those who are concerned with civil liberties for limiting the government’s ability to abuse the rights of the public. One is the standard ACLU strategy of being a liberal supporter of broad government power, and then insisting that the government respect individual rights, especially constitutional rights, when using that power. The other strategy, followed by libertarians, is to try to limit the government’s general power to begin with because the government cannot abuse power it does not have. The drug war provides a least one example of the superiority of the libertarian strategy. The drug war has run roughshod over the civil libertarian accomplishments of the Warren Court, leading to a weakening to various degrees of the First, Second, Fourth, Fifth, Sixth, and Eighth amendments, not to mention a huge increase in the prison population, and the denial of the basic right to use relatively innocuous recreational drugs, even for medicinal or health purposes. Far better to have denied the federal government the power to regulate intrastate use of and sale of drugs to begin with, as, I recall, Justice Van Devanter advocated on Commerce Clause grounds way back in the “dark ages” of the 1920’s.
Precisely.
See also: SCOTUSblog, Rand Simberg, Glenn, Bill INDC, and Michael Ledeen, who writes, ”Thomas’s dissent is part of his continuing primal scream against the use of the Commerce Clause to regulate anything that the Feds want to regulate…and tax anything they want to tax. Whazzup with Scalia, anyway? Why did he fall for this one?”
Why, indeed…?
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Radley Balko writes, “Let it no longer be said that Thomas carries water for Scalia.
“He’s easily the most principled and consistent defender of federalism on the court.” Absolutely right.
(h/t Cole)
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update: Ann Althouse defends Scalia.
The Supreme Court has completely destroyed my buzz.
Indeed this is judicial activism. But it is judicial activism that dates to the New Deal. This interpretation has been the law since the case of <a href=”http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=111″>Wickard v. Filburn</a>. The general judicial philosophy that opposes judicial activism also prefers stare decisis.
Before the Lopez decision (1996), the US Supreme Court had not struck down a single piece of federal legislation on the grounds that it exceeded Congress’s authority since 1937.
60 years of unhindered federal expansion and usurpation of authority. Federalism has been moribund for a long time. Lopez was just the death rattle. The Commerce Clause and the whole concept of enumerated powers has effectively been rendered bullshit.
Jefferson wrote the Kentucky Resolutions of 1798, in which appeared this concept:
where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy; that every State has a natural right … to nullify of their own authority all assumptions of power by others within their limits; that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them
Scalia seems all over the map on these decision (see: gun possession in the proximity of schools, eg), which to me suggests he’s bending his federalism to fit his social conservative viewpoint.
Rand Simberg on Wickard:
The reality is that Lopez is sometimes heralded as being more of a limitation of Commerce clause power than it really was. Lopez can be interpreted as saying not that the federal gun possession statute wasn’t within the Commerce clause power but that Congress didn’t bother to invent a figleaf of excuse for the possession affecting interstate commerce.
This decision was entirely predictable.
I am completely with you on this Jeff! And you know I am a social conservative.
Young mothers need to unite on this!
Our mothers had martinis and cigs. We had to give up martinis because of hangovers and driving our kids EVERYWHERE (that pesky DUI thing) and cigs because they caused wrinkles (horrors!) and bad breath.
We need this!!!
I don’t suppose any of this figured into the Court’s decision, huh?
Predictable and “right” aren’t synonomous.
I like the first paragraph of Thomas’ dissent:
Doesn’t get any simpler than that.
I think it’s time we faced facts: the Federal Government is no longer one of limited and enumerated powers.
This isn’t a hypothetical state of affairs. This is here and now.
Or, to put it more bluntly…, Jeff?
Well, I agree, and it certainly takes a stretching of the Commerce Clause to believe that it would impact a market that is supposed to be illegal anyway; can the Court take into account the commerce of illicit markets?
You, know…not to spliff hairs or anything.
can the Court take into account the commerce of illicit markets
All economic activity affects its related market. That’s what “economic” means—everything is interconnected.
And just about everything is a form of economic activity. Any action that anyone takes to change his situation is a form of economic activity.
Washing your dishes by hand “affects” the market for dishwashers. Having sex “affects” the market for prostitutes. Eating a peanut butter sandwich “affects” the market for restaurant food.
Make no mistake—there are no real limits on federal power. The US government, as it was conceived, designed and first implemented no longer exists.
[drags] What if uhh…f-e-d-e-r-a-l-i-s-m really spelled centralism?
Uhhh so does this mean they are going to start regulating the sex that I have in the privacy of my own home? Even though I’m not selling it or anything, cause it affects the market for prostitutes?
SW: Soon whoa….
Not that it matters, but I hope Thomas is ultimately nominated to Chief.
Most disingenuous quote (from Stevens’s majority opinion): “But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress”.
Unless, of course, those voices start talking crazy talk about abortion restrictions or gay marriage or the death penalty or so-called affirmative action, or…
I think a major problem with rolling back the Commerce Clause power of Congress, to the point of taking the power to pass laws like this out of Congress’s hands (which I wholeheartedly agree with) is that it would upset the grounding of the Civil Rights Act of 1964. It was a case involving that law (I forget the name of it) that really put the Commerce Clause power in cruise control. The Court allowed the Act on the reasoning that African Americans in transit across state lines would need to use hotels, inns, restaurants, etc., and therefore discrimination against them at such establishments would affect interstate commerce simply by virtue of the fact that some African-Americans would be travelling interstate.
To say that for these reasons, wholly intrastate transactions fell within the Commerce Clause power of Congress was a stretch even for the Warren court, but it stuck. If the Court comes to its senses and decides to roll back the Commerce Clause power in the future, contravening stare decisis, should the court just say, with regard to the Civil Rights Act, that what’s done is done, and not touch its Civil Rights rulings? I mean, no politician will risk the ruiniation of his career by seeking the repeal of the Civil Rights Act, no jurist will risk the tarnishing of his reputation by voting to overturn the Civil Rights Act, and no business (that wants to stay in business) will risk its good will by challenging the Civil Rights Act. But still…
Mark, think of it on a longer time scale.
If this miraculous awakening occurs and the Civil Rights Act is effectively declared unconstitutional (which it is), then would not the next step to simply pass an appropriate Constitutional amendment? People talk of such a thing as if it’s well-nigh impossible.
If the CRA (and others) is so widely popular, then passage should be a snap.
The problem with rulings like this pile of jurisprudential dog shit is not the short-term results. The larger problem is that the procedure by which these legal changes are made results in a concentration of power at the highest level of government, which in turn affects every other decision for the foreseeable future.
This is one social conservative who thinks that this does not line up with the Lawerence decision.
Basically put, you can’t make gay sex illegal, and you can’t make medicinal marijuana legal. Fine and all, but why? I’d like a little more consistency here.
That’s a fact and it’s about time people took note of it. Thanks to Kelo we have property rights just as long as the government says so. Thanks to McCain-Feingold we have speech rights just as long as the government says so. Now this.
Bold prediction: Social cons in congress will realize by the end of the year that they now have the power to shut down assisted suicide in Oregon on interstate commerce grounds.
Apparently growing a plant yourself for your own use is now commerce. Amazing how the supreme court can redefine the English language.
What is the meaning of “is” again?
JSW, Stevens is doubly disingenuous there. The respondents already received relief through the democratic process by way of ballot initiatives. The people of California spoke. Just like they did in a number of other states.
Thomas for Chief Justice.
Let the dems filibuster that.
“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean–neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master–that’s all.”
OT:
Alpha, I recently read that very young children are often offended by the idea that words have more than one meaning – they want to know which meaning is the “real” one.
Since I started studying a foriegn language, I completely sympathize with that point of view. It’s annoying to be confused.
Of course this is good news for the big league importers from Columbia & etc. Their prices stay high, pun not intended.
I wonder how much Scalia and the other upholding judges have made under the table on this and other such unjust laws? And they wonder why so many people do not respect the government. Gotta keep that corruption institutionalized, otherwise it might get out of the government’s hands, eh?
Turing word: returned: as in, no government ever returned any power it had usurped back to the citizens.
I’m not so sure on everybody’s federalism kick here. I don’t understand it in this context. I haven’t read the opinion or arguments, but how is this different from any other preemption issue? The feds have a law outlawing MJ and a State makes a contrary law allowing MJ for certain purposes. The laws conflict and federal Supremecy Clause kicks State’s MJ down the crapper.
States should no more be able to pass medical MJ laws than they should be able to pass laws permitting States to pass food or environmental standards that don’t measure up to federal standards. I just don’t see the federalism argument when there’s already a federal law prohibitting marijuana possession on the books.
JS,
I totally sympathize with the frustration caused by words with more than one meaning when learning a foreign language.. especially the ones that have no real English equivalent.. But I really like HD’s line “..which is to be master–that’s all.â€Â
I’ll tell you what really annoys me.. Its hearing those talking heads on Cable News totally misuse words.. and I’m only really annoyed because they make so much more money than I do for their skill in speaking…
The whole legal/political aspect of the marijuana issue bores me.. but the hypocrisy of the issue is spellbinding.. Its like something dreamed up by Lewis Carroll..
On one hand we have a government that spends huge amounts of money at every level of government to make anti-weed laws, enforce them, prosecute offenders, interdict importation, fight drugs wars and destroy crops outside the country.. All to keep a minor drug illegal.. a drug thats never killed anyone directly (like alchohol); which mellows people out rather than stimulating violence and aggression (like alcohol); that isnt truly addictive (like alcohol); a drug thats used covertly and legalization supported by a large percentage of Americans in a broad age group and broad range of socio-economic backgrounds.
On the other hand we have billions of dollars spent to advertise alcoholic beverages by manufacturers; plenty of states have only state run retailers (so they get a cut of the profits); we have alcohol supported by the population at every level.. More than support.. its expected that one drinks in this culture.
If people want to scream about THE HYPOCRISY.. let them do it on this issue. I want my tax dollar going to protecting me from violent criminals and terrorists.. not pot smokers.
States should no more be able to pass medical MJ laws than they should be able to pass laws permitting States to pass food or environmental standards that don’t measure up to federal standards. I just don’t see the federalism argument when there’s already a federal law prohibitting marijuana possession on the books.
What you do not understand, ss, is that this federal law is not supposed to be “on the books” in the first place.
Did you not learn the concept of enumerated powers in civics class? It’s the idea that the federal government was granted specific and limited powers to do certain specific things … meaning that if it’s not on the list, the federal government does not have the authority to do it.
If you were born after 1937, I suspect you may have never heard of this concept, since FDR pretty much destroyed it 60 years ago.
It’s just taken a few decades for people to wake up to the fact that (a) the doctrine no longer exists, (b) getting rid of it means that the federal government has the power to do whatever the hell it wants, and (c) that’s not such a terrific idea.
Bill of Rights:
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Turing word: Fact
As in: .. and thats a fact jack.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people
Turing word: design
As In: That was by design when the founding fathers wrote the bill of rights.
I get it now…if only Roe had been cast in terms of its effect on the paper diaper market and subsequent effect on the environment…no need for emanations or penumbras!!