Man Without Qualities

Monday, June 06, 2005

On Dope

The Supreme Court just held that Federal regulation can and does criminalize "medical marijuana" notwithstanding state laws that purport to protect users from the federal ban on the drug. The decision itself is a predictable reversal of yet another Ninth Circuit distraction. It was also predictable that Justice Stevens would take advantage of this case to endorse the notorious and questionably written Wickard v. Filburn, 317 U. S. 111, 128-129 (1942).

But what was not predictable, and what is by far the most interesting aspect of this Supreme Court decision, is the line up of the Justices. Justices O'Connor filed a dissenting opinion, in which Rehnquist and Thomas joined as to all but it's final two paragraphs (paragraphs constituting a vague, opaque, almost incoherent and arguably sweeping endorsement of states' rights), Justice Thomas filed his own dissenting opinion and Justice Scalia filed a "concurrence in the judgment" emphasizing his view that "activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather ... Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause."

The Court's recent decisions restricting the power of the Commerce Clause have attracted a good deal of controversy. Justice O'Connor is often seen as a "swing" vote on the Court. But today's decision indicates that she is willing to go vastly further in restricting this central power of Congress than what has been seen to date, probably much further than any other justice is willing to go.

Also of note were some reations to the decision, including this one:
Alan Hopper, an American Civil Liberties Union attorney, said that local and state officers handle 99 percent of marijuana prosecutions and must still follow any state laws that protect patients. "This is probably not going to change a lot for individual medical marijuana patients," he said.
What this comment suggests is that either Mr. Hopper needs to read the Supremacy Clause of the Constitution (it is often quipped that the ACLU never reads any part of that document other than very selected portions of the Bill of Rights) and/or that he has a highly personal interest in marijuana issues. In any event, Mr. Hopper is completely wrong when he suggests that local and state officers must still follow state laws that protect patients where those state laws contradict the federal ban. This decision is going to change plenty for individual medical marijuana patients - starting with the shut down of various facilities dispensing medical marijuana that have recently opened in California. What has Mr. Hopper been smoking?

Does Mr. Hopper also think that local and state officers must still follow state laws that protect racially segregated public schools? Or that Supreme Court rulings to the contrary probably are not going to change a lot for individual public school students?

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