Jewish World Review Dec. 7, 2004 / 24 Kislev, 5765

Terry Eastland

JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
James Glassman
Paul Greenberg
Bob Greene
Betsy Hart
Nat Hentoff
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
Michelle Malkin
Jackie Mason
Chris Matthews
Michael Medved
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Roger Simon
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports

Marijuana case is really about power | Ashcroft vs. Raich, the "medical marijuana" case argued in the Supreme Court, is less about marijuana and its medical effects than it is about federal power — specifically the power of Congress to regulate interstate commerce.

Liberals worry that a court that in recent years has somewhat limited that power will use Raich to make serious forward progress with its "new federalism agenda." To judge by the oral argument, however, no majority seems ready to do that. Yet if, as seems likely, Raich is decided on narrow grounds, the big issues the court will have finessed will undoubtedly return in subsequent cases.

Raich is a case from California, which passed a referendum authorizing the possession, manufacture and distribution (for free) of marijuana for personal medical use under a doctor's supervision. Nine other states have similar laws, which exempt patients and their caregivers from criminal sanctions.

Those laws, however, happen to be in conflict with a federal law, the Controlled Substances Act of 1970, which outlaws the manufacture, distribution and possession of marijuana, making no exceptions for medical use. Raich is about that conflict.

After two California women using marijuana under their doctor's care had their drug supplies seized by federal agents acting under the Controlled Substances Act, they sued, challenging the law as unconstitutional because it encompasses medical marijuana. The pith of their complaint is that the Article I clause authorizing Congress to "regulate commerce ... among the several states" doesn't permit the comprehensive regulation of marijuana codified in the CSA. In other words, they ought to be able, consistent with California law, to use marijuana to relieve their pain.

Raich is not an easy case if you (a conservative) think Congress regulates too much in the name of interstate commerce but you also want the federal government to war against illegal drugs. It is also not easy if you (a liberal) think there should be exemptions for medical marijuana but also believe there is virtually nothing the federal government can't regulate as interstate commerce. Only libertarians are at ease in thinking about Raich since they're against laws criminalizing drug use and the big federal government grown up since the New Deal, much of its foundation being laid by the commerce clause.

Raich inevitably forces you to think about the line of New Deal commerce-clause cases culminating in Wickard vs. Filburn (1942). Wickard is the famous case of an Ohio farmer who grew wheat to feed his livestock and to grind into flour for his family. It never left the farm. Yet the government had an interest in Roscoe Filburn's "local" farming because he produced more wheat than federal law allowed.

Donate to JWR

Fined $117, Mr. Filburn sued but lost his argument that Congress had no power to regulate his wheat production. The court said that his activity could be regulated because it had a "substantial effect" on the nation's commerce. How so? Because if other farmers followed his example, their personal wheat farming would reduce the national demand for wheat and thus its price — contrary to the government's regulatory scheme.

Wickard yielded a commerce clause that placed no real limits on congressional power. Nine years ago, however, in the Lopez case from San Antonio challenging the Gun-Free School Zones Act, the court for the first time in more than a half-century found that the clause did limit Congress. Yet it didn't overrule Wickard.

The problem that Raich presents for the justices is that if they follow Lopez, they probably have to side with the California plaintiffs. But if they do that, they probably have to confront Wickard, because the two cases are in serious tension. To judge by the oral argument, the justices are not anxious to side with the plaintiffs nor to overrule or seriously modify Wickard.

That's why the smart betting is that they will muddle through, finding a way to side with the government. Left for another day is what to do about a federalism jurisprudence that one must hope is not rendered further incoherent by the court's decision.

Every weekday publishes what many in Washington and in the media consider "must reading." Sign up for the daily JWR update. It's free. Just click here.

JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

10/19/04: Justices only seem to be immortal
09/15/04: Second Bush term could bring radical tax change
08/30/04: To appeal to conservatives, add some nuance to compassion
07/28/04: How many more 'adverse' court decisions will it take before the case for an amendment to protect traditional marriage becomes compelling?
07/15/04: Edwards wasn't chosen just for his hair
06/23/04: Special counsel law: Reform gone awry
06/14/04: Reagan's influence is apparent in federal judiciary
05/25/04: What do Bush's sagging approval ratings really mean for November?
05/17/04: We must make distinctions between Berg, Abu Ghraib
05/11/04: College costs rise with students' expectations
04/30/04: A country's declining birthrate into oblivion
04/26/04: Dems escalate the judicial war
04/09/04: Bush was right to permit Rice to testify on 9-11
03/25/04: Colleges doing away with their racially exclusive programs
03/02/04: What does a conservative beat mean for The New York Times?
12/31/03: America is right to press for religious freedom worldwide
10/22/03: Case involving pledge should be easy for justices to decide
10/15/03: Dean places political considerations ahead of national security
08/28/03: Colleges creating policies that discourage intellectual exchange
08/14/03: Progressive reform could end up limiting government
07/30/03: Congressman, please consult Miss Manners
07/23/03:Words reveal much about Bush: Maybe there is a reason he won't retract sentence
07/08/03: Justices also said affirmative action must end
06/25/03: Court's law school ruling isn't persuasive
06/24/03: Whatever the Lynch story, everyone wants it
06/18/03: A judge shows he can set aside his strong views
06/04/03: Boston church becomes politically important again
05/28/03: YWCA names culture warrior as its new head
05/23/03: Washington steps in to help teach history
05/13/03: It may take another election to change filibuster rules
05/07/03: Paige works to improve education from inside out
04/30/03: Iraqis have choice to make regarding religious freedom
04/16/03: Is it acceptable for an education secretary to state a personal preference for religious schooling?
04/08/03: University officials must put academics ahead of athletics
04/02/03: Support for our soldiers means support for their orders
03/27/03: 'Free Iraqi Forces' underscore Bush's sincerity
03/18/03: Dems misunderstand judge's job
03/13/03: Justices show right restraint in ruling on anti-crime measures
03/05/03: America's imperial intentions
02/25/03: The weakness of Dems' stated reason for their filibuster makes you wonder whether it is the real reason
02/19/03: Administration fine-tunes religious rights in public education
02/12/03: France and Germany need to be reminded of the necessity of a strong, even predominant America
02/06/03: Judiciary's 'balance' -- or lack of it -- is our doing
01/29/03: The child who almost wasn't
01/21/03: President decides to punt on affirmative action case
01/14/03: Bush's faith has influenced his conduct in public office
01/07/03: Dems need ideas, not more microphones
12/17/02: Gray Lady should learn that times have changed
12/10/02: Will High Court be guilty of activism?
12/03/02: The missing facts in news accounts of Saudi Princess Haifa's putative 'charity'
11/26/02: Americans don't have to be worried about Big Brother
11/19/02: Texas' reputation for flamboyance may be revised
11/11/02: Bush now can repair confirmation system
11/05/02: Dems shouldn't believe too strongly in history
10/30/02: Snipers had lots of motives
10/23/02: No one should be shut out of marketplace of ideas
10/15/02: Open hearings that could imperil the nation
10/08/02: Debating the clear and present danger
10/01/02: A great awakening in China?
09/25/02: Abortion, again? The settled but still unsettling law of Roe v. Wade
09/18/02: A relevant presidency--and irrelevant U.N?
09/10/02: Ashcroft's obtuse judicial statement
09/04/02: The Education Gadfly stings again
08/28/02: So then let the president declare war
08/21/02: Will Bush finally 'fix' affirmative action once and for all?
08/06/02: President must take up cause of Egyptian democracy warrior
07/31/02: With each war, civil liberties are curtailed less

© 2004, Terry Eastland