TCS Daily


Fumbling Federalism (Part Deux)

By Pejman Yousefzadeh - December 9, 2004 12:00 AM

We've previously seen the Bush Administration's lack of devotion to the principles of federalism in the debate over the Federal Marriage Amendment -- which proposed to constitutionalize the precept that in all fifty states, marriage should be limited to being between one man and one woman. Now the Administration's stance in Ashcroft v. Raich resurrects concerns among small-government conservatives and libertarians that the principles of federalism are going by the boards.

Angel Raich is a California mother who suffers from an appalling variety of serious medical conditions, and is consequently confined to a wheelchair. She cannot consume conventional pharmaceutical medicines because she is severely allergic to just about all of them. Because of the devastating nature of her condition, and because of her adverse reaction to other medicines, Raich's doctor prescribed marijuana to alleviate her symptoms, and Raich became a "medical necessity" patient of the Oakland Cannabis Buyers' Cooperative. Marijuana does not help Raich get stoned. It helps her achieve a state of normalcy that would be inconceivable given the variety of diseases that afflict her.

Recognizing the plight of patients like Angel Raich, the state of California legalized the use of marijuana for medical purposes in 1996 via Proposition 215. But the Federal Government has stepped forward to declare that the use of medical marijuana violated the Controlled Substances Act. The Act is part of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

Article I, section 8 of the Constitution enumerates the instances in which congressional action is and legislation is permitted. By far the most popular enumerated power serving as the basis of Congressional power is the Commerce Clause, under which Congress is constitutionally empowered "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Sure enough, we see that the Controlled Substances Act is enabled by the following invocation: "Incidents of the traffic [in drugs] which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce." The reasons for this effect on interstate commerce are threefold, according to the legislation:

(A) after manufacture, many controlled substances are transported in interstate commerce,

(B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and

(C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.

Unfortunately, the Commerce Clause has been expanded far beyond its originally intended dimensions, and as a result, the Supreme Court's recent jurisprudence has placed limits on the use of the Clause as an enabling instrument for Congressional legislation. In United States v. Lopez, the Court found that the Gun-Free School Zones Act of 1990, which prohibited the possession or discharge of a firearm in a school zone was unconstitutional because under the Commerce Clause and applicable case law, Congress could only regulate (a) the channels of interstate commerce; (b) the instrumentalities of interstate commerce; and (c) actions that substantially affect interstate commerce. Writing for the majority, Chief Justice Rehnquist found that under these criteria, a finding that the Gun-Free School Zones Act was within Congress's enumerated power to promulgate, the Court "would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."

Similarly, in United States v. Morrison, the Court ruled that the Violence Against Women Act (VAWA) which proposed a federal civil remedy against perpetrators of gender violence was unconstitutional because Congress may not regulate "noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce." The Court stated that it could not countenance a judicial philosophy that "would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption."

Angel Raich is assisted in growing her own marijuana in her own backyard. She sells that marijuana to no one, but uses it herself -- meaning that there is no interstate commercial activity involved. As such, she uses neither the "channels" nor the "instrumentalities" of interstate commerce, and her activities cannot be found to "substantially affect interstate commerce." Even if the growing of medicinal marijuana would have an aggregate effect on interstate commerce, precedent set in both Lopez and Morrison puts the activities of people like Angel Raich outside of the purview of Congress's power to regulate interstate commerce in general, or through the Controlled Substances Act in particular. Former Reagan Administration Solicitor General Charles Fried -- who wrote an amicus brief supporting Raich -- made the analogy on a National Public Radio news story between growing marijuana in one's backyard for one's own medicinal purposes without the intention of selling it to anyone, and with the growing of geraniums. He then wondered whether the government would have the same right under the Commerce Clause to regulate the growing of geraniums as it would the growing of marijuana for one's own medicinal purposes

Nevertheless the government is actually arguing that products grown in one's own backyard fall under regulation thanks to the Commerce Clause. Amazingly -- as highlighted by blogger and Yale law student Will Baude -- the government essentially answers Fried's query in the affirmative by saying that Congress could regulate the growing of "hallucinogenic roses" through the Commerce Clause. If this isn't anti-federalism run amok, it is hard to conceive of what would be. As law professor Jonathan Adler points out, "Under the government's reasoning there is no activity beyond Congress's grasp -- a position the Supreme Court has repeatedly rejected over the past ten years."

It is paradoxical that a conservative Republican Administration should repeatedly be seeking to inflict hammer blows against a cherished conservative and libertarian doctrine -- the doctrine of federalism which is part and parcel of our Constitutional order. But on issues like same-sex marriage and the Raich case, the Bush Administration has sought to undermine the system of federalism and to instead establish a federal police power that is entirely anathema to our system of government. This effort must be resisted by conservatives and libertarians as surely as if the effort were being made by a liberal Democratic Administration. Federalism deserves no less.

The author is a lawyer and frequent TCS contributor. Find more of his writing here.


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