Medical Marijuana and Federalism

Editorial: Preserving the Power of Congress [RSS] (NYT)

The central issue is whether Congress had the constitutional power to criminalize the women’s activities. When it passed the Controlled Substances Act, Congress relied on the commerce clause of the Constitution, which authorizes it “to regulate commerce with foreign nations, and among the several states.” In recent years, the Supreme Court has taken a narrow view of what that authorizes Congress to do. It has ruled, in 5-to-4 decisions, that Congress did not have the power to pass the Gun-Free School Zones Act or a key part of the Violence Against Women Act.

We remain troubled by these decisions and, more generally, by the court’s narrow reading of Congress’s power. But given the state of the law, the United States Court of Appeals for the Ninth Circuit was correct to hold that the federal government had no right to criminalize the California women’s actions. The marijuana in this case was far removed from interstate commerce, since it was raised in California for use within the state and was not sold commercially. The Justice Department has argued that allowing Californians to use medical marijuana “seriously undermines Congress’s comprehensive scheme for the regulation of dangerous drugs.” But when an individual treats herself with marijuana, under the sanction of state law and with a doctor’s guidance, the impact on trafficking in dangerous drugs is close to nonexistent.

Although the California women should win, it is important that they win on narrow, fact-specific grounds. Advocates of states’ rights have latched onto this case and are urging the court to use it to radically rewrite its commerce clause rulings, reviving ancient precedents that took a more limited view of Congressional power. This is where the greatest danger lies in this case. If this sharply restricted view prevails, it could substantially diminish the federal government’s ability to protect Americans from unsafe work conditions, pollution, discrimination and other harms.

The limits of the Commerce Clause, from which Congress–and hence the Federal government–derives its powers, has been the subject of intense debate since the earliest days of the Republic. While the Supremacy Clause makes clear that Federal law trumps those of the several States when the two are in conflict, Congress must have authority to act in the first place. Prior to the New Deal (specifically, the 1937 case NLRB v. Jones & Laughlin Steel Corp.), that was a meaningful limitation; since then, not so much. The Court has tried over the last decade or so to gradually restore it.

The right of Congress to legislate whether individuals can grow their own marijuana and injest it, on advice of their doctor, within the confines of their home state, is suspect indeed. Having the Supremes recognize this would make libertarians and, in this narrow case, many liberals, quite happy. As the Times editorial board correctly notes, though, the implications of such a ruling would be expansive indeed.

Indeed, this is the classic case of politics creating strange bedfellows:

Alabama, Louisiana and Mississippi, conservative states that do not have medical marijuana laws, sided with the marijuana users on grounds that the federal government was trying to butt into state business of providing “for the health, safety, welfare and morals of their citizens.”

We shall see.

FILED UNDER: Congress, Health, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.