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What's with the Flip-Flop on State's Rights?
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| occrider |
No seriously ... now conservatives are promoting federalism and democrats are state's rights advocates? And what's with the Bush administration trying to declare home grown medicinal marijuana as a violation of “commerce”? What the 9th circuit court did was brilliant by the way. They essentially took Rehnquist’s and Scalia’s own ruling in a gun case that limits federal application of the commerce clause and applied it to this situation as a federal intrusion into peoples’ homes. Essentially the conservative justices will be hypocrites unless they rule in favor of the state in this case. I have heard that liberal Briar and Stevens will likely be voting in favor of the federal government since they are advocates of federalism. Let’s see if the conservatives are willing to stand by their principles.
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Dude, Where's My Integrity?
Medical marijuana tests the Supreme Court's true love of federalism.
By Dahlia Lithwick
Posted Monday, Nov. 29, 2004, at 3:49 PM PT
If medical science conspired to construct, at the submolecular level, the world's most sympathetic plaintiff, it could do no better than Angel McClary Raich. Raich suffers from a host of painful wasting diseases, including fibromyalgia, endometriosis, scoliosis, uterine fibroid tumors, paralysis, asthma, and rotator cuff syndrome. She has an inoperable brain tumor, seizures, and struggles to consume enough calories to live. In her brief before the Supreme Court, an affidavit from her doctor enumerates not only Raich's staggering list of illnesses, but also the 35 alternative medicines she has tried without success. He adds that she "may suffer rapid death" if forced to stop using the marijuana she consumes (via pipe, massage oils, and quantities of pot-spiked zucchini bread) every two waking hours of the day.
Lucky for Raich, she resides in California—which passed the Compassionate Use Act of 1996. Unlucky for Raich, and for her co-plaintiff, Diane Monson, California is still part of the United States, in which the federal drug laws draw no distinctions between the deathly ill and the merrily stoned. Ashcroft v. Raich pits the federal Controlled Substances Act—which makes marijuana a Schedule I drug with no legitimate medical use—against California's legalization of that drug for sick people under a doctor's care. In the simplest sense this is a states' rights, or federalism, case. But it's also a case full of twists and inversions, endless electric guitar solos, tie-dyed mayhem, and strange bedfellows. And that's not just among the folks camped out on the courthouse steps for oral argument this morning—many of whom were probably later rounded up and forced to pee in small cups outside John Ashcroft's office.
Acting Solicitor General Paul Clement represents Ashcroft in this case, and he is arguing that states' rights are a good thing, unless the state in question is one of the 10, 11, or 12 states (depending on how you count them) that have legalized medicinal marijuana. His opening comments are quickly interrupted by Justice Sandra Day O'Connor, asking whether the Supreme Court's recent federalism rulings in United States v. Lopez (1995) and United States v. Morrison (2000) cast doubt on his case.
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Before Lopez and Morrison, the Supreme Court mostly kicked back and enjoyed a lengthy period of deference to Congress' view of the limits on its so-called "commerce clause" powers. Article 1, Section 8 of the U.S. Constitution empowers Congress to "regulate Commerce with foreign nations, and among the several states," and—starting in the late 1930s and into the '40s—interstate commerce began to include just about anything Congress wished to regulate, like employment and wages, right on up to just about any conduct save for interstate burping. The Rehnquist court put a stop to all that madness with Lopez and Morrison—striking down, respectively, a federal gun law and a law creating a federal cause of action for female victims of violence—as straying far beyond the commerce-clause power. Suddenly, "interstate" and "commerce" were words with meaning again.
Clement tells O'Connor that those federalism cases can be distinguished from the marijuana one, but O'Connor shoots back with a question about Wickard v. Filburn, the classic commerce-clause case from 1942. Wickard involved a farmer who owned a family dairy farm and exceeded the annual wheat quota then allowed by the federal government. The farmer argued that his wheat was for his own consumption and that Congress had exceeded its commerce-clause powers in setting quotas. The Supreme Court disagreed. O'Connor points out that the wheat grown in Wickard entered a national market. Whereas pot grown on a windowsill by dying women or their caregivers does not. Or, to quote Ruth Bader Ginsburg: "Nobody's buying anything. Nobody's selling anything."
Clement responds that it's impossible to know which pot is grown by individuals and which comes from illegal markets. O'Connor, still bogarting the oral argument, insists that the state of California can be trusted to enforce its own drug laws and crack down on illegal markets. Clement retorts, "There's no reason to believe California will have some unnatural ability to keep only one part of a fungible market separate."
Justice Antonin Scalia is in something of a tight spot today. One the one hand, he voted with the states'-rights majorities in Lopez and Morrison. On the other hand, he isn't going to go off tripping lightly to the land of Cheech and Chong with those loonies on the 9th Circuit (who ruled the federal drug laws unconstitutional as applied to Raich and Monson). So he toys with Clement, suggesting that the rationale in Wickard doesn't really apply here. In Wickard, Congress wanted to regulate all interstate commerce in wheat. In this case, Congress wants to stop all interstate drug trafficking. Justice John Paul Stevens is in a mirror image of that same tight spot. He frickin' hates Lopez and Morrison. But his sweet old heart bleeds for the folks who would die if their pot was taken away.
Justice Anthony Kennedy asks if this case is easier or harder than Wickard, given that the buying and selling of wheat is lawful, whereas the mere possession of pot is not. Clement replies that this is an easier case. If Congress can prohibit something from interstate commerce altogether, it should be able to "excise out any small island of unlawful possession that would compromise its goals."
Ginsburg asks whether there would be any lawful recourse if these two particular plaintiffs were prosecuted under the federal drug laws. Clement quite cheerfully points out that in the 2001 medicinal marijuana case, United States v. Oakland Cannabis Buyers' Cooperative, the court held 8-0 that there was no implied medical necessity exception to the federal drug statutes. So no, these women would pretty much have to suffer, die, or move to Amsterdam.
Kennedy asks, in what sounds suspiciously like his pre-Christmas shopping voice: "If we rule for the respondents in this case, do you think the street price of marijuana would go up or down?" And Stevens asks whether the court is bound by Congress' findings that there is no medical use for marijuana or could follow some other entity's findings (say, the Institute of Medicine's 1999 study finding that marijuana holds promise for alleviating nausea and vomiting in people undergoing chemotherapy and shows potential for improving severe weight loss caused by AIDS). Clement replies that it's as easy as petitioning Congress to reclassify marijuana as a non-dangerous drug. He adds, amazingly, that Congress considers marijuana nonmedicinal "because smoking is harmful."
Professor Randy Barnett represents Raich and Monson. But this doesn't keep the liberal justices from beating up on him for curtailing congressional power while the conservatives beat up on his doper clients. Barnett warns that if the court finds for Ashcroft, this case will come to "replace Wickard as the most far-reaching case of interstate regulation." He adds that just because some product may have an interstate market (and what really doesn't, aside from phlegm, perhaps?) can't mean its possession implicates interstate commerce. Scalia notes that mere possession of ivory tusks or eagle feathers is illegal—regardless of what market they come from.
Barnett says there is no market if the marijuana is entirely isolated and policed by the state of California. "Isolated?" cries Scalia. "I understand some communes grow marijuana for medical usage!" Everything inside him recoils in horror. Federalism be damned.
Justice Stephen Breyer tries to generate a list of really dangerous items that can be grown privately, in which the feds may still maintain a regulatory interest. He comes up with "heroin, cocaine," and "tomatoes with genomes in them"—the ones who may someday have dangerous "tomato children." And Justice David Souter—who clearly has never been high on anything stronger than yogurt—says it's clear that most Californians will go out and buy their medical marijuana "on the street." That would mean tens of thousands of Californians on chemotherapy and many more recreational users pretending to be. He adds, "every kid buying a bag or whatever you'd call a small quantity ... they're not getting prosecuted."
Scalia insists this case can't be distinguished from Wickard. Barnett says this would be like Wickard if the farmer was eating all the wheat he grew, as opposed to feeding it to his livestock and replanting it—activities that implicate interstate commerce. Breyer disagrees: Wickard said a farmer's consumption of homegrown wheat, "though not commerce, may still be regulated so long as there's an interstate effect on commerce. I take it Justice Scalia is exactly right." Never comforting words for an oral advocate.
Breyer concludes with the suggestion that the plaintiffs in this case should have gone to the FDA and said "take marijuana off the list ... that would be the obvious way to get what they want." He adds, "Medicine by regulation is better than medicine by referendum." Catchy. Barnett urges him to read the amicus briefs describing government obstruction of even basic cannabis research.
Clement concludes his rebuttal with his best argument: California law undermines enforcement of the entire federal drug regime. There is no way to distinguish between those in genuine medical need and those who are exploiting the system. He cites a case mentioned in the briefs in which a man was busted with pot in his backpack, his pocket, his other pocket, and another pocket. And some scales. The appellate court nevertheless found that he might have legitimately been buying the pot for medicinal reasons; he was just carrying the scales to "keep from being ripped off."
In a tribute to the chief justice, who missed oral argument again today, Angel Raich sought to woo him with empathy—saying she hoped his chemotherapy treatments "would soften his heart about the issue."
"I think he would find that cannabis would help him a lot," said Raich. Can't you just imagine it: William H. Rehnquist spooning Cheez Whiz right out of the jar and sewing gold armbands onto all his bathrobes?
Are these women just a little weird? Yes. But should the court's staunchest conservatives get away with being for states' rights only when the state in question isn't California? No. Will they? Oh, you can bet your bong on it.
http://slate.msn.com/id/2110204
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| igottaknow |
| They only believe in 'principles' when it supports what they want to do :rolleyes: |
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| Yoepus |
| Unless Congress has made majurana illegal (which they did), Supreme Court will have a hard time finding why it is not unconstitutional, because at the end of the day, congress is the one deciding what is interstate commerece. |
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| occrider |
| quote: | Originally posted by Yoepus
Unless Congress has made majurana illegal (which they did), Supreme Court will have a hard time finding why it is not unconstitutional, because at the end of the day, congress is the one deciding what is interstate commerece. |
Incorrect. In US v. Lopez, the SCOTUS clearly stated that there were limitations to the commerce clause:
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The commerce power "is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Id., at 196. The Gibbons Court, however, acknowledged that limitations on the commerce power are inherent in the very language of the Commerce Clause.
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But even these modern era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits. In Jones & Laughlin Steel, the Court warned that the scope of the interstate commerce power "must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government." 301 U. S., at 37; see also Darby, supra, at 119-120 (Congress may regulate intrastate activity that has a "substantial effect" on interstate commerce); Wickard, supra, at 125 (Congress may regulate activity that "exerts a substantial economic effect on interstate commerce"). Since that time, the Court has heeded that warning and undertaken to decide whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce. See, e.g., Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-280 (1981); Perez v. United States, 402 U.S. 146, 155-156 (1971); Katzenbach v. McClung, 379 U.S. 294, 299-301 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-253 (1964). [n.2]
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Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. Perez v. United States, supra, at 150; see also Hodel v. Virginia Surface Mining & Reclamation Assn., supra, at 276-277. First, Congress may regulate the use of the channels of interstate commerce. See, e.g., Darby, 312 U. S., at 114; Heart of Atlanta Motel, supra, at 256 (" `[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.' " (quoting Caminetti v. United States, 242 U.S. 470, 491 (1917)). Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. See, e.g., Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce); Perez, supra, at 150 ("[F]or example, the destruction of an aircraft (18 U.S.C. § 32), or . . . thefts from interstate shipments (18 U.S.C. § 659)"). Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, Jones & Laughlin Steel, 301 U. S., at 37, i.e., those activities that substantially affect interstate commerce. Wirtz, supra, at 196, n. 27.
http://supct.law.cornell.edu/supct/html/93-1260.ZO.html
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You say that because Congress has made marijuana illegal then they have the ability to regulate it as interstate commerce? Well in the Gun Free School Zones Act of 1990, congress made made it a federal offense for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone. In US vs. Lopez, however, SCOTUS ruled that the act did not regulate commercial activity nor contained a requirement that the possession be connected in any way to interstate commerce:
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The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.
http://supct.law.cornell.edu/supct/html/93-1260.ZO.html
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Similarly in Ashcroft vs. Raith, there is no engagement of commerce. Raith is not purchasing or trading marijuana in any way whatsoever. She is growing it herself for her own medicinal use as allowed by California state law. Any and all policing of her medicinal marijuana use is the responsiblity of the state, not the federal government. Scalia and Rehnquist are ardent state right's advocates ... let's see them put their money where their mouth is. |
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| Yoepus |
Right, but Congress can chose (as it might be doing) to regulate marijuana as it does other drugs perscription drugs or dangerous items.
For instance: One can not manufacture certain drugs without FDA approval.
One expirement in WMDs without government approval either...
Or a better example: One can not burry radio-active toxic waste in one's own backyard (despite the absense of state laws) even if one creates the toxic waste for personal use (say one wants to become a mutant like the hulk).
I don't think if the Supreme court rules in this case that it will rule against an individual or a state for doing what they want. Thats not the issue with medical marijuana. The issue is that it creates a loophole that opponents are worried will be exploited to promote the sale/distribution/use of marijuana in and out of the state with those laws.
Through things like ATF it is obvious to me Congress has the power to control even non-commerce issues when national and inter-state health is concerned. |
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| NeoPhono |
| I'm sure I'm preaching to the choir here, but I can only hope that someday people with cooler heads and logic at their side will see how silly criminalizing marijuana truly is. How many mountains of evidence showing the trivial side-effects of casual marijuana use have been brushed aside in the face of propaganda and fear? This country already self-medicates itself to no end. You can kill yourself with Tylenol or die from alcohol withdraw but you can't smoke a plant. It's almost funny. |
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| occrider |
| quote: | Originally posted by Yoepus
Right, but Congress can chose (as it might be doing) to regulate marijuana as it does other drugs perscription drugs or dangerous items.
For instance: One can not manufacture certain drugs without FDA approval.
One expirement in WMDs without government approval either...
Or a better example: One can not burry radio-active toxic waste in one's own backyard (despite the absense of state laws) even if one creates the toxic waste for personal use (say one wants to become a mutant like the hulk).
I don't think if the Supreme court rules in this case that it will rule against an individual or a state for doing what they want. Thats not the issue with medical marijuana. The issue is that it creates a loophole that opponents are worried will be exploited to promote the sale/distribution/use of marijuana in and out of the state with those laws.
Through things like ATF it is obvious to me Congress has the power to control even non-commerce issues when national and inter-state health is concerned. |
Some, not all, of the things you mention above fall under the jurisdiction of the federal government because the constitution explicity grants those responsibilities to congress. However, article X of the bill of rights states:
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The fact of the matter is that many states adopt the same drug laws adopted by the federal government which is why you never see a federal/state dispute over other drugs such as heroin, cocaine, firearms etc. Furthermore states must abide by the FDA's drug decisions because if they didn't, their actions of distributing non FDA approved drugs would constitute as commerce which would fall under federal jurisdiction. Despite the federal government's jurisdiction you still see states violating the federal government by suing for rights to import drugs from Canada as we see Illinios and Vermont doing ... but I digress.
The key word is that the federal government only has jurisdiction when it comes to commerce. If the government were to try to ban a substance with respect to mere possession, no commerce invovled, Congress must pass a constitutional amendment such as what it did for prohibition in the 30's. The controlled substance act is not a constitutional amendment however. The federal government assumes jurisdiction under the commerce clause since it is assumed that most "illegal" drugs are sold. But utlimately without a constitutional amendment the states not the federal government has jurisdiction over determining what substances are legal or illegal. Therefore in instances such as this case, where there is no commerce involved, the federal government has NO jursidiction over the state. The SCOTUS already made such a judgment in US vs. Lopez which ruled in favor of conservatives. Therefore if the jurisdication of the federal government superceded the jurisdiction of the state, than not only should this appeal be overturned but US vs. Lopez should be overturned as well. Any other ruling is simply hypocritical. |
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| auujay |
| quote: | Originally posted by NeoPhono
I'm sure I'm preaching to the choir here, but I can only hope that someday people with cooler heads and logic at their side will see how silly criminalizing marijuana truly is. How many mountains of evidence showing the trivial side-effects of casual marijuana use have been brushed aside in the face of propaganda and fear? This country already self-medicates itself to no end. You can kill yourself with Tylenol or die from alcohol withdraw but you can't smoke a plant. It's almost funny. |
You're right you probobly won't find many people disagreeing with you here :)
While you are absolutly right about the side effects especially compared with other lagal substances, what REALLY pisses me off is that it is illegal as a presciption, excluding some states :) The fact that an tons of legal drugs (not even just "controled" drugs or "narcotics") have far worse side effects yet marijuana is still illiegal. There is no reason whatsoever for marijuana not being available by marijuana by persciption, I mean the people arguing against the legalization of it saying it will make it easier to get have no case with marijuana as a persciption.
... sorry for the slight tangent :) |
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