Opinion Editorial
July 2, 2005

By Mike Krause

On May 6th, in Gonzales v. Raich, the U.S. Supreme Court did more than just rule on the federal/state conflict over medical marijuana. The Court also gutted what was left of federalism and gave Congress the go ahead to regulate virtually any aspect of American life.

In its 6-3 decision, the Court ruled that the interstate commerce clause — Article I, section 8 of the U.S. Constitution granting Congress the power to “regulate Commerceamong the several States” — gives Congress, through the federal Controlled Substances Act, authority to ban even the cultivation and personal use of small amounts of marijuana for medical purposes entirely within the borders of a state such as Colorado, where medical marijuana has been voter approved.

Forget for the moment that it was marijuana at issue. According to the ruling, the scope of Congress’ authority under the interstate commerce clause now includes noncommercial, wholly intrastate economic activity that might affect commercial, interstate economic activity in some way.

The court defined such economic activity as “the production, distribution, and consumption of commodities.” In other words: everything.

For instance, many rural Coloradans keep chickens on their property, and they either collect and eat the eggs or trade with their neighbors for something they grow (tomatoes, cucumbers, etc.). They also might occasionally slaughter a chicken to eat.

According to the Raich ruling, Congress could decide that too many people keeping chickens might somehow impact the national chicken and egg market, and use the interstate commerce clause to ban or otherwise regulate backyard chicken coops as part of a broader regulatory scheme.

As Justice Clarence Thomas said in his dissent to Raich, “Respondentsuse marijuana that has never been bought or sold, that has never crossed state lines, and that has no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.”

Normally federalist leaning Justice Antonin Scalia called the federal ban on noncommercial activity a “necessary and proper” part of the broader regulatory scheme allowed under the interstate commerce clause.

Yet as Thomas continued, “If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’s Article I powers–as expanded by the Necessary and Proper Clause–have no meaningful limits.”

Having Washington set policies for all fifty states, whether they possess shared values or not, is precisely the kind of thing conservatives howl about when it is liberals setting the agenda.

The great irony of Raich is that the Bush Administration got its bigger government victory not through a majority of conservative judges who might agree on moral issues (Thomas, Rehnquist and O’Connor all voted against), but rather from a majority of “liberal activist” judges who believe the federal government should always trump states’ rights (Stevens, Ginsburg, Souter and Breyer all voted in favor).

On June 15, only nine days after the Raich decision, Congress voted down the bi-partisan Rohrabacher/Hinchey Amendment, which would have simply prohibited the Justice Department — which includes the Drug Enforcement Administration — from spending any money undermining state medical marijuana laws.

Only 15 Republicans voted in favor of the Amendment. Among them were Colorado’s Tom Tancredo and Bob Beauprez (Colorado Democrats Dianne DeGette and Mark Udall also voted for the Amendment).

According to his office, Congressman Beauprez’ yes vote “does not endorse the use of marijuana, but does respect states’ rights and the will of the people of Colorado.” And indeed, regardless of the Court’s decision or the personal feelings of lawmakers, medical marijuana is exactly the kind of experimentation that a federalist form of government is supposed to allow.

Colorado’s ability to implement policies that may conflict with the desires of the federal regulatory apparatus will now be determined not by constitutional limitations under the interstate commerce clause, but rather by Congressional restraint, thus requiring federalist leaning Republican lawmakers to consistently practice the principles to which they lay claim.

Judging from the vote on Rohrabacher/Hinchey, it is not clear that the majority of Republicans are up to the job.