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The Supreme Court Hears Oral Argument on a Possible California "Medical Marijuana" Exception
to the Federal Controlled Substances Act

Thursday, Dec. 02, 2004

On Monday, November 29, the Supreme Court heard oral argument in Ashcroft v. Raich. The case asks whether the federal Controlled Substance Act can constitutionally trump state law that permits the medical use of marijuana.

Significantly, California state law expressly permits the medical use of marijuana. And the court below, the U.S. Court of Appeals for the Ninth Circuit, held that the plaintiffs were likely to succeed on the merits, because the issue was properly left to the states - not Congress. Why? Because the law regulates the intrastate medical use of marijuana, not interstate commerce.

This case is, of course, about medical marijuana - and thus it has sparked debate about the drug's importance, or lack thereof, in medical treatment, or in making illness bearable. Headlines, unsurprisingly, have focused on the medical marijuana issue - and focused on it from a policy perspective: Is it good or bad to permit medical marijuana?

But the Court's job is not to make policy, but to interpret the Constitution. And this case is fundamentally about the basic constitutional doctrine of federalism - the relationship between the federal government and the states.

Lately, federalism debates have tended to be passionate and political. But Raich could open the way to a more reasoned federalism debate. The Court ought to rule that Congress's power does not extend this far, and that California can do as it wishes when it comes to prescribed, regulated, intrastate medical marijuana.

That happens to be a victory for the left. Other federalism victories happen to be victories for the right. But federalism itself isn't a partisan political doctrine; it's a basic constitutional doctrine.

The California Law, and the Federal Law

To see the federalism issue, it's important first to focus on the specifics of the statutes at issue here.

The federal Controlled Substances Act generally prohibits the use of marijuana, period - with no exceptions for medical marijuana, small amounts grown for personal use to treatment illnesses like multiple sclerosis.

The California law specifically permits the cultivation, possession, and use of marijuana, but only when it is obtained in-state, prescribed by a physician, and used solely for medical purposes. And the use must be accordance with all other California laws. (For example, driving under the influence of marijuana remains a crime in California--even if the marijuana was taken for medicinal purposes.)

The Key Commerce Clause Precedent: Wickard v. Filburn

The key Supreme Court precedent here is an old classic: Wickard v. Filburn. In that case, a farmer planted and grew wheat on his farm solely for his family's consumption. But the federal government argued that federal limitations on the growing of wheat applied nonetheless.

The Court ruled for the federal government. It reasoned that if many farmers planted, grew, and used wheat for their own families intrastate, on their own farms, that would have an effect on interstate commerce, since home production and consumption affect the market for wheat. Thus, Congress had the power under the Commerce Clause to regulate.

Wickard's logic, though, seemed to prove too much. Did it mean that the Commerce Clause authorized Congress to regulate any intrastate activity -- no matter how trivial its impact on the national economy - if there would be a substantial effect on the economy if lots of people did the activity?

The current Court has wrestled with Wickard's logic, but has never overruled it. It's unlikely it will do so in Raich. Nevertheless, Raich may give the Court a welcome opportunity to put some limits on Wickard's expansive logic.

How Wickard's Facts Are Different From Those of Raich

Here's why Wickard and Raich are different:

First, no state law at all was at issue in Wickard - let alone a state law that, as in Raich, expressly permitted the activity at issue. The farmer in Wickard argued his action was too trivial to come within federal law - not that state law allowed it. Thus, federalism was not even at issue. No legislature had vetted the issue and determined that the law was needed to serve the public good, as has happened in California with medical marijuana. That is an enormous difference.

Second, the answers to the "What if everyone else did it?" question are different in Wickard and Raich. Millions of Americans have room for a tiny wheat crop in their own backyards. But how many can obtain a medical marijuana prescription according to California's procedures? Unless doctors are unscrupulous - and if they were, they could and should be prosecuted - very few.

Third, the national economy is left unaffected by this intrastate activity. What California has done is to create a wholly in-state independent market for medicinal marijuana that is separate from the illegal recreational drug trade the federal government has every power to regulate. A heavily regulated market in medicinal marijuana has been established within California's state boundaries. If California has its way, as it should, there will be a small legal intrastate medical marijuana market - meaning those who need medical marijuana will no longer have to get it on the black market. The logical result would be that medical marijuana would diminish the national marijuana black market. That is consistent with the federal policy, even if the federal government has no business regulating intrastate activity that is permitted because the state has enacted a law to serve the general healthy, safety, and welfare, which constitutes their primary arena for the exercise of sovereignty.

In sum, given all these significant distinctions between Wickard and Raich, the Court could easily hold that while Congress did not exceed its Commerce Clause power by regulating home wheat use, it did exceed its Commerce Clause power by regulating intrastate medical marijuana.

As I explained in a prior column, in far more recent precedents than Wickard, the Court has tried to do what should have been done all along: To recognize that Congress's powers are enumerated for a reason: Because unlimited power inevitably leads to tyranny. There is nothing about Congress that alters this political fact.

The Neutrality of Federalism: Not A Creature of the Right, or of the Left

If the Court says - as it should it if it is to be consistent with prior precedent - that the Controlled Substances Act cannot apply to intrastate, doctor-prescribed medical marijuana, the opinion will be an interesting animal: A federalism victory for the left.

The truth is that federalism is neither left nor right politically; rather, it is a politically neutral structural principle embedded in our Constitution. Many law professors - such as Reva Siegel and Robert Post -- have claimed that federalism is inherently a political tool for the right and, even more indefensibly, that the Supreme Court's federalism jurisprudence is judicial activism gone wild. Apparently, they reached this conclusion because conservative Justices pioneered the recent federalism revival. (The pro-federalism Justices include Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice Kennedy, and Justice Thomas.)

But of course, the left can employ federalism too. And now, more than ever - when Washington is in the hands of the Republicans. The Democrat agenda is stalled at the federal level. Guess what? If federalism is permitted to flourish, it will now be pursued at the state level, as it has been in California, and suddenly, federalism will work for the left.

The most fascinating aspect of this case is that we can now see so clearly how power determines policy. The Republicans came to Washington on a "small government" mandate. But once they controlled the White House and now the Congress as well, small government was no longer a motivating concern. In this case, the Bush Administration's Department of Justice has used federal power to try to enlarge the conservative agenda of limiting the use of illegal drugs - despite the fact that it means running roughshod over the states' power to make laws concerning the general welfare. And it's not the first time the Ashcroft Justice Department has tried to quash a state law regulating only intrastate conduct: It also went after Oregon to challenge its liberal law on assisted suicide.

This political turnabout is just what the Framers would have predicted. They wisely believed that no one who holds power can be trusted to act in the larger public interest. Rather, the system must provide checks to ensure that the individual's temptation to abuse power is mitigated. We are familiar with checks such as judicial review, and the bicameral legislature. But after Congress was permitted plenary and unlimited power for decades, we are less apt to see federalism as what it is: A powerful check and balance.

The wisdom of federalism lies not only in that function, but also in its ability to keep issues that are best decided locally out of the hands of a distant federal government.

Justice Brandeis imagined that federalism could render the United States a set of fifty social experiments - with the best teaching valuable lessons that would spread nationwide. Cases like Raich hold out the possibility that his dream could become reality. How will we really know if medical marijuana prescription limitations are enforceable - or just an easy gateway for drugs to move into the black market - until some state tries to enforce such limitations? Whatever happens, we will all learn from California's experiment, just as California is learning from the handful of other states that permit medical marijuana use.

There is no better way for the citizens of the United States to determine which social policies are beneficial, and which are not, than to permit the states to experiment with their various laws. (As I discussed in a previous column, marriage laws are no exception.)

The Supreme Court has been called all sorts of vile names for reinvigorating the limits of federalism. This is its opportunity to put to rest the lie that federalism will only serve conservative interests.

Note: Interested readers can find the Raich briefs here, at - Ed.

Marci A. Hamilton is a Visiting Scholar at the Princeton Theological Seminary and the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns, including those on other issues related to federalism, can be found on this site. Her email is

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