Third Party & Independents Archives

Supreme Court Chooses Unlimited Federal Power as the Most Important Constitutional Value

“Respondents… use marijuana that has never been bought or sold, that has never crossed state lines, and that has had 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” - Justice Thomas, dissenting in Gonzales v. Raich

Yesturday, the Supreme Court held that the Controlled Substances Act constitutionally extinguished efforts by states like California to allow individuals suffering from serious medical illnesses to use marijuana to ease their pain.

The 6-3 majority was led by all four liberal justices, joined by centrist Justice Kennedy, with a concurrence from Justice Scalia. Justices OConnor, Rehnquist and Thomas dissented, with Thomas writing a separate dissent which was the best opinion in the case. While many people may focus on the drug aspect of this case- the principle that the majority was trying reaffirm was far more dangerous than even the drug war- as long as the Congress can frame its legislation in a clever enough way, if can regulate any activity, in any facet of life.

Gonzales v. Raich is the result of the convergence of two disturbing lines of cases. One line began with Champion v. Ames, where the Supreme Court held that Congress had the power to ban the interstate shipment of lottery tickets, even though Congress' goal had nothing to do with the original reason for the commerce clause.

Second, in Wickard v. Filburn, the Court approved congressional regulation of a single individual growing food for consumption on his own farm. The Court's rationale was that the farmer's isolated activity, if aggregated with other such isolated activities, would substantially affect interstate commerce. If one combines these two lines of cases, then Congress can regulate or ban any item from interstate shipment, no matter what its reason, and it can regulate any activity by any individual that, aggregated with other similar activities, would help make the national regulatory scheme more effective. To put it simply-it is a perfect storm of unlimited Congressional power.

Due to the convergence of this unlimited power, Ms. Raich's small attempt to ease her own pain amazingly became a matter of national concern and national regulation. Since, under Ames, Congress could regulate controlled substances in interstate commerce, and since Ms. Raich's attempt to grow some marijuana for herself was not that different from the farmer making food for himself on his farm, the federal government had the power to punish Ms. Raich. This result must be amazing to any non-lawyer, but this is the actual mess that the Supreme Court has turned the commerce clause into.

When this case came up for oral argument, I posted about this topic here and almost everyone agreed that Ms. Raich was right here, and the federal government was wrong. Yet, when I tried to explain that to the liberals on the Court, the idea of unlimited federal power is the most important constitutional value - no one seemed to believe me. Well, my friends, the proof is in the pudding. The quest to expand the power of the national government has trampled on the original reason for the commerce clause; destroyed all notions of enumerated powers; and today, it ran roughshod over the rights of a woman with brain cancer, for whom medical marijuana gave the only serious prospect of a decent life. That's progressive jurisprudence for you.

Posted by Misha Tseytlin at June 7, 2005 2:08 AM