Posted 10:11 AM by Robert

On Dope II

For some reason, much of the blogosphere (here and here) and the mainstream media continue to obscure the legal significance of the Supreme Court ruling, as with this Associated Press story, which repeats as (incorrect) fact bizarre opinions of the ACLU's Mr. Hopper quoted in the prior related post:

Local and state officers handle nearly all marijuana prosecutions and must still follow any state laws that protect patients.

The ruling does not strike down California's law, or similar ones in Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington state. However, it may hurt efforts to pass laws in other states because the federal government's prosecution authority trumps states' wishes.

It is certainly correct that the federal government will not be seen arresting many cancer patients for smoking dope; the federal government also does not arrest many cancer patients taking the quack cancer pseudo-remedy, laetrile.

But that is far from saying that the Court's ruling is unlikely to change things in a big way for current users of "medical marijuana." Yes, it is literally correct that the Court's ruling does not strike down California's Compassionate Use Act, the medical-marijuana initiative adopted by the state's voters nine years ago (or other similar laws). Literally correct but highly misleading. The Court ordered the Ninth Circuit to consider other challenges to the application of federal drug law. But there is no other serious challenge to the applicability and validity of the federal law and therefore the invalidity of the California initiative. The losing plaintiffs/respondents in the Court’s case also raised a substantive due process claim and a medical necessity defense, neither of which the Ninth Circuit even reached. But that's not surprising because those are not serious issues (although a contrary ruling from another nutty Ninth Circuit panel could gum things up for another short while). The substantive due process claim is a formless, baseless "Hail Mary," and the "medical necessity" defense would apply to any drug over which the state and the federal government differ - and the Court is not about to gut the drug regulatory system over this issue. In any event, such a defense would not shield the doctors, clinics and other suppliers of medical marijuana (and their co-conspirators) even if this "medical defense" argument were accepted on the narrow facts of this case. Even the now-overturned Ninth Circuit decision implicitly acknowledges the insubstantiality of these other claims because federal courts are loathe to over rule federal law on Constitutional grounds if any other grounds exist - but the Ninth Circuit based its decision on the Constitutional argument. What's left is a mere mopping up operation.

And it is also true that the Court did not strike the laws of states other than California. It did not strike those laws down because those laws were not challenged in the case before the Court. So what? The ruling makes Supremely clear beyond reasonable doubt that all existing medical marijuana laws are voidable as contrary to federal law and the Supremacy Clause of the US Constitution. In other words, anyone with legal standing - including the US Department of Justice and lots of other people - may now go to federal court and have those state laws actually declared invalid. Mrs. Raich, one of the plaintiffs/respondents said she would continue to use the marijuana that was prescribed by her doctor and is grown for her by friends. That's all very well and good, but her doctor should contemplate where he or she will be upon losing the right to prescribe any drugs at all pursuant to federal government enforcement actions, and, as for her friends, well, federal minimum security prisons aren't all that bad as those things go.

Some things are going to change a good deal. For example, many clinics now exist in California to supply those who present the proper prescription and identification under California's Compassionate Use Act. The Court's decision overturned a 2003 ruling by federal Ninth Circuit Court of Appeals that shielded those clinics and that Act from the reach of federal drug enforcement. That injunction and its shield are now gone. It is very likely that these clinics will be shut down. Indeed, the federal government had already moved against such clinics. Those enforcement efforts will now probably be revived and intensified. Moreover, state officials facilitating the operations of such clinics now run a clear risk of being subject to federal conspiracy and aiding and abetting charges. Is that consistent with the AP/UCLA claim that "state officers ... must still follow any state laws that protect patients?" Not unless one construes "protect patients" to include actions that keep them from exposure to the Reefer Madness of medical marijuana.

Those clinics do serve some cancer patients. But, contrary to both mainstream media and blogosphere suggestions, the clinics already serve many people who are not at all sick and seriously undermine federal drug enforcement efforts (whether such efforts should be made by the federal government or any government is another question). Many such prescriptions are bogus. For example, the Man Without Qualities knows people who avail themselves of such clinics in Los Angeles with prescriptions allegedly for treatment of serious anorexia from which they do not suffer.

As for the blogosphere, claims such as those that the five-member majority of the Court simply does not take federalism seriously and the like are just hyperbolic and, worse, politically naive - almost childish. On a practical level, one should seriously ponder any argument that leads one to the conclusion that Justice Kennedy simply does not take federalism seriously. This is just irresponsible and naive. He is not my favorite Justice, but he does take federalism seriously - as his votes in both United States v. Lopez, 514 U. S. 549, and United States v. Morrison, 529 U. S. 598 quite clearly demonstrate. It's a fact. Those who think otherwise should just used to it, and not rely on such a rhetorical crutch to spare themselves the exertion of understanding why Justice Kennedy took a different direction in this case.

In addition, no intellectually honest person could believe that the Court could have sided with the Ninth Circuit without over ruling the notorious Wickard v. Filburn, 317 U. S. 111, 128-129 (1942). If federal authority under the Commerce Clause can reach one's right to grow and distribute wheat, it reaches one's right to grow and distribute dope. Of course, the Ninth Circuit didn't admit that - but that's the kind of thing that makes the Ninth Circuit an intellectually dishonest national laughing stock. The Supreme Court does not want to follow that particular lead.

This is not the case to over rule Wickard, regardless of how one feels about Wickard. My own belief is that Wickard is too broad. But there can hardly be a worse case in which to challenge a key decision expanding Congressional power and the legitimacy of the New Deal and the welfare state that this one. As noted above, the California law already in fact actually does broadly and directly undermine federal regulation efforts by allowing many people with bogus prescriptions to obtain medical marijuana. Indeed, my own personal, anecdotal evidence suggests that many of the people voting for this initiative actually intended exactly that result. Aside from any theoretical problems with the argument that there is no federal authority here (and there are plenty - as Justice Scalia correctly points out in his concurrence), a decision upholding the state law would have placed a wedge between two major conservative blocs: libertarians and social conservatives. There are lots of issues that could serve as bases for narrowing Wickard on which those two blocs are in complete accord. Let's make a Supreme Court case out of one of those.

For children and legal precedents alike, it is better to come into the world without one's parents fighting bitterly over the legitimacy of one's birth.