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Grass Roots Case

Opinion Editorial
December 9, 2004

By Mike Krause

Were the Bush Administration and Congressional Republicans as committed to federalism as they are to budget deficits, then the case of Raich v. Ashcroft would likely never have come about. But they arent. So on November 29th the U.S. Supreme Court heard arguments in Raich, which is about the ongoing conflict between states and the federal government concerning the medical use of marijuana.

The case potentially has an impact far beyond the legitimacy of Colorados own medical marijuana law. Raich is also about what, if any, constitutional limits there are on Congress power to regulate interstate commerce; in other words, its about the future of federalism and the ability of Colorado’s legislature and voters to make decisions separate from the dictates of Washington DC.

Angel Raich legally uses medical marijuana under Californias Compassionate Use Act. In 2003, out of a well-founded fear of federal prosecution, she asked the Ninth Circuit Court in San Francisco for a declaratory judgment on the constitutionality of the federal governments prohibiting (the federal Controlled Substances Act) marijuana possession for personal, medical use. She won the case, but the federal government appealed to the Supreme Court

According to Boston University Law Professor Randy Barnett, who argued Raich’s case before the Supreme Court, the Ninth Circuit found that, Because the cultivation, possession, and use of medical cannabis was a completely non-economic activity and too attenuated from interstate commerce, applying the federal Controlled Substance Act to this conduct exceeded the power of Congress under the Commerce Clause.

The government replied that the constitutional authority to regulate commerceamong the several states gives Congress the power to prohibit the possession of any amount of any controlled substance.

The federal argument is that even growing and using tiny amounts of marijuana for personal medical use entirely within one’s home somehow threatens the national laws about interstate drug sales.

Although the Controlled Substances Act was passed as under Congressional authority to regulate interstate “commerce,” the cultivation of small amounts of marijuana for personal use is, obviously, not a commercial activity. But the federal lawyers creatively argue that the cultivation is “economic activity” even though is it not “commercial activity.

Should the court agree , the impact will be huge. As Case Western Reserve Business Law Professor Jonathon Adler describes it, the commerce clause as currently understood grants Congress the broad power to regulate commercial enterprises and other enterprises that have a substantial effect on interstate commerce.

The government is asking the court to expand this authority to include non-commercial activities with little or no impact on interstate commerce. As Adler points out, Under the governments reasoning, there is no activity beyond Congress graspa position the Supreme Court has repeatedly rejected over the past ten years.

What is most striking is that it is a Republican Administration seeking new power for the Congress to regulate inconsequential and even non-commercial activity taking place within the borders of an individual state.

Moreover, medical marijuana seems a strange fight to pick over the future of federal reach of the commerce clause. In just a few years over a third of the twenty-three American states which have the initiative process, have approved medical marijuana. You would think then, that medical marijuana would be the poster child for federalism and states rights Republicans. You would be wrong.

In another time– about up to 1996 — Republicans talked openly of devolving power to the states. Back then, Republican presidential candidate Bob Dole carried in his breast pocket and often displayed a copy of the tenth amendment to the U.S. Constitution; The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people. Whats at issue in Raich makes Mr. Doles respect for federalism seem quaint.

Decades ago, “states rights” was wrongfully used as a code word for state racism, harkening back to the days of Jim Crow laws.

Yet in 2001 and again in 2003, U.S. Representative Barney Frank, a Massachusetts Democrat with impeccable liberal credentials, introduced the States Rights for Medical Marijuana Act. The Act would simply allow states to implement their own policies without interference from the federal government. Yet rather than embracing a bill with states rights in its very title, Congressional Republicans have refused to even allow committee hearings on the Act.

Federalism is a wonderful idea. Washington, DC, is too often detached from the day to day lives of Americans, and the city is filled with small armies of busybodies. Regardless of which party is in power, the busybodies push more and more decisions about daily life in the United States to be made by a few people in Washington.

Federalism, on the other hand, respects the consent of the governed. As Jonah Goldberg from National Review puts it, The virtue of a federalist, republic form of government is that the more you push these decisions down to the level where people actually have to live with their consequences, the more likely it is they will be a) involved and interested in the decision making process, and b) happy with the result.

But should the government win Raich v. Ashcroft, there will be little or no aspect of American life off limits to federal regulation.

The Independence Institute
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INDEPENDENCE INSTITUTE is a non-profit, non-partisan Colorado think tank. It is governed by a statewide board of trustees and holds a 501(c)(3) tax exemption from the IRS. Its public policy research focuses on economic growth, education reform, local government effectiveness, and Constitutional rights.
JON CALDARA is the President of the Independence Institute.

MIKE KRAUSE is a Senior Fellow at the Independence Institute.

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