"One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance," Justice John Paul Stevens wrote.is the rational used by Justice Stevens in the majority opinion. Of course, as Justice Thomas countered:
"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."Get that? The Court here is giving Congress (and itself) the power to regulate anything it wants, which is so far from what the original intent of the Commerce Clause was about it's absolutely head-spinning.
The politics of this decision are gut wrenching and sick. Basically what you have here is a state's-rights issue, but throw in a little moral "drug" issue as well and you might see where Stevens got his majority.
The core of the majority is Stevens, Breyer, Ginsburg and Souter. Not surprised here, as they are the more liberal, and tend to vote on issues that increase the federal government's power. The Justices in the minority are no surprise either. Thomas (fast becoming my favorite, if just for his consistency), O'Connor and Rehnquist.
The big shock here was Kennedy and Scalia. They both were champions of federalism in the 90s. They cast the majority opinions for cases such as the regulation of guns around school grounds (Lopez, 1995), citing the autonomy of states when interstate commerce was not at issue. Well it's at issue here again, and what are they doing on the other side?
The Wall Street Journal rips the court for this decision.
Raich would appear to end the Lopez line of reasoning, since the two decisions don't seem reconcilable. If, as Justice Antonin Scalia wrote in his majority concurrence, non-economic activities can be regulated so long as they are part of a "comprehensive scheme of regulation," there would appear to be no federal power the Commerce Clause couldn't theoretically justify.
And let no one be deluded that the democratic preference of America's largest state isn't being trampled here. We didn't support the California medical marijuana ballot initiative at issue in Raich. But a clear majority of Californians did. Just because an issue is "important" doesn't mean it should be a matter for federal law. Almost all homicide is regulated at the state level, and contentious issues like abortion rights are best handled not by judicial fiat but by democratic compromises in the 50 states. Who knows what further intrusions into the rights of local polities the Raich decision may one day be used to justify?
On the flip side, the feds try to soften the blow with the announcement that the really aren't after the mom and pop marijuana growers, and don't have the resources to deal with all the pot growers and smokers in the land.
"We go after major trafficking organizations," DEA spokesman Bill Grant in Washington, D.C., said Monday. "Our mission hasn't changed."The Oregonian also notes that local juries will usually handle the federal cases, and a jury made up of citizens who voted for medicinal marijuana are probably unlikely to convict someone who was complying with State law. Which is no real consolation (although it probably is for the people using it). The principle of the thing is already cast into the pit of darkness, and it will take a court with an entirely different makeup to resurrect the Constitution's original intent.
The Oregon House, in response to this (or perhaps they were doing it anyway) are passing a bill through that would allow employers to fire medicinal marijuana users.
A House judiciary subcommittee Monday held a hearing on House Bill 2693, which would allow Oregon employers with drug-free workplace policies to fire workers found with marijuana in their system.
If the bill makes it out of the Republican-controlled House, it could face significant opposition in the Democrat-controlled Senate.
"I still think it violates a disabled person's right to hold a job," said Sen. Bill Morrisette, D-Springfield. "I would hope that we would not even have a hearing on it on the Senate side."
I normally hate to agree with Democrats in the Oregon Senate, but in this case I'll make an exception. I think that the House Republicans are walking a fine line between their moral beliefs about pot, and the laws of the state and the will of the people.
I really don't have much of a problem with Medicinal Pot. There are many drugs that, while not legal and outright dangerous if used recreationally, are fine and dandy when prescribed by a physician (heroin by-products among them). Why is Pot so different? Why would House republicans do the equivalent of telling employers that they can fire someone who tests positive for Codeine? (Note: exceptions for working with heavy machinery and the like, as you can't operate that stuff on Codeine either).
And yes, I have a problem with the way the Federal government classes and deals with pot. The feds, to this day, still classify marijuana with drugs such as crack, cocaine and heroin. Conversely, alcoholic drinks are perfectly legal, and rarely get much attention when minors drink them.
My experience with pot (and it was considerable when I was younger) was thus:
I knew friends who used crack, and most of my friends in college drank heavily on weekends (and sometimes on weekdays too). Those friends of mine into harder drugs got into severe trouble. Some ended up pregnant, in the hospital, or in jail. Cocaine was, and is, extremely addictive physically, and those friends of mine who tried to give it up went through some pretty shitty hell. One or two couldn't give it up, but I don't know what happened to them. Lost contact somewhere down the road.
Of all the alcohol use I saw in high school and college, the common theme was violence. There were always fights. If kids weren't getting into fights, they were having sex randomly, driving and getting into accidents (or mercifully, getting caught before hand).
My experience with all the people I knew who smoked pot was that they were more likely than not to sit at home watching the nature channel. They didn't fight. They were unlikely to want to drive anywhere, and rarely did. Taking walks around the quad and watching the lights play with the leaves of the trees was groovy too.
I'm not saying that pot isn't bad at all. The other side of that drug is that those smoking it tended to be very unmotivated to do anything. School or Job performance does suffer some. I knew people who did have a problem with it, and lacked the self control to resist the temptation of other things when high. These tended to be the same people who had problems with all sorts of things. If it wasn't pot, it was alcohol, or sex, or cigarettes, or eating. Addiction is just as likely mental as physical.
All this is to say, I think that the federal government wastes a lot of time on this particular substance. I wouldn't be alone in thinking that the war on drugs, up to this point, has been a colossal waste of money. Sure, you can make pot a controlled substance. It needs to be. But putting it in the holy ranks of Crank and Heroin is a mistake.
If we could get all those Crank and Heroin users over to Marijuana use the violent crime rate would plummet. Who has time to rob the liquor store when your roommate just turned on the lava lamp?
And so I wonder if certain Justices of the Court have sacrificed their legal Constitutional beliefs because they wanted to stop dead someone's attempt to make partially available a substance they equate with Crank? I find that detestable, and certainly give Scalia black marks for this decision.
Glenn Reynolds has a nice roundup, it's short, but he links to other roundups. It includes some links to the boys over at Volokh. Is there anyone in the blogosphere who likes this decision?
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