What the medical marijuana ruling means for patients, the commerce clause, marital sex, Antonin Scalia's career and more.
Before Monday’s 6-3 Supreme Court ruling in Gonzales vs. Raich, federal agents had the authority to break down the doors of medical marijuana patients and haul them off — and they still can. But should cancer patients who smoke pot worry about federal agents sending them to the clink? The reality is that more than 99 percent of all marijuana arrests are made at the state or local level. So if you live in California, where marijuana has been legal for medical purposes since the Compassionate Use Act of 1996, your medical marijuana card makes you pretty safe. (That is, unless your name is Angel Raich and you just sued the federal government.)
Raich and her co-defendant, Diane Monson, were not the only two watching this case. Legal scholars and court watchers from across the political spectrum have been anticipating the Raich ruling as one of the most important tests of the reach of federal power in roughly a decade. Now that it’s here, what does it mean? Whom does it affect, and how?
As the plaintiffs, Raich and Monson aren’t off to jail (yet) as a result of the ruling. In fact, pretty much every media outlet has so far missed the fact that the Supremes didn’t rule definitively on their case. Rather, the majority ruled that the 9th Circuit had incorrectly applied the Constitution’s “commerce clause” and ordered the case remanded back, with instructions. The plaintiffs still have two avenues — due process and medical necessity — that neither the Supreme Court nor the 9th Circuit ruled on. As for pot smoking, the two vowed to continue despite the court’s ruling.
If you live in one of the 10 states (Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Washington and Vermont) that effectively allow medical patients to use marijuana, rest easy for now. The high court’s ruling doesn’t change state law whatsoever; as long as you only run into state and local cops, you’re fine. David Michael, a co-counsel for the plaintiffs, explains it this way: “People don’t understand how horrendous this is in its implications … This ruling allows the feds to effectively — effectively, not legally — dismantle state laws that differ from federal laws.” But, says Michael, if you’re growing a few plants in your backyard on the recommendation of your doctor, “you may be safe. [The federal government] will attack growers, distributors and all the instrumentalities of the medical marijuana system, but leave the personal growers alone.”
On the day of the decision, Oregon stopped issuing medical marijuana cards but is likely to resume issuing them soon. California Attorney General Bill Lockyer called for calm, telling reporters, “People shouldn’t panic. There aren’t going to be many changes. Nothing is different today than it was two days ago, in terms of real-world impact.” Whether or not the feds will go after Grandma is not yet clear, but these are the same people who locked up Tommy Chong for his Los Angeles novelty shop Chong’s Bongs.
Monday was a good day for the commerce clause in the Constitution. The section that gives Congress the authority to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” now stretches to include, according to Clarence Thomas’ dissent, “virtually anything.” Antonin Scalia, voting with the majority, clarified: “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.”
In Raich, the two women were using California seeds and plants were following California law. No money changed hands. As Thomas writes, “By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power.” So what can’t the federal government regulate?
“Maybe marriage,” says Orin Kerr, an associate professor at George Washington University law school and a former clerk for Justice Anthony Kennedy. “It’s hard to tell what’s non-economic.” Randy Barnett, lead counsel for the plaintiffs and a Boston University law professor, takes it further. “Under the reasoning in the majority opinion, Congress can regulate whatever it wants.”
Monday was not a good day for federalists. “Scalia went off the reservation,” says George Mason University law professor and libertarian David Bernstein. Kerr says this case shows that “federalism is style over substance. When the rubber hits the road, the five votes aren’t there.” That may be a little harsh; as Barnett points out, “Three justices completely agreed with us,” even though the case centered on marijuana, never an easy way to win conservative hearts.
For Bernstein, the failure for federalists can be chalked up to politics. “There’s no political support for [federalism]. [Republicans on Capitol Hill] don’t even talk about limiting federal power,” he says. “Why waste political capital when the real goal is overturning Roe v. Wade? Scalia’s eye is on the prize, and the prize is Roe.”
Adding to the anti-federalist insult, the majority opinion was based on Wickard vs. Filburn, a 1942 ruling — the bane of originalists — that forbade a wheat farmer from growing more than his quota of wheat on his farm, even though it was for personal consumption. “You want to say [Scalia] just looked at the law,” says Bernstein, “but it’s difficult … I don’t know a single serious originalist who thinks Wickard was decided right.” Well, not until Monday, anyway. So what was Scalia thinking? Don’t worry, he gets his own heading down below.
Last November, during oral arguments in Raich, Barnett, the plaintiffs’ lead counsel, momentarily silenced the stodgy courtroom. Think about prostitution and marital sex, Barnett said, not having to ask twice. In that case, he went on, the same act is regulated under some circumstances but not under others, even though the two influence each other. The less marital sex someone has, Barnett argued, the more times someone will seek out a prostitute. So by regulating that married couples have more sex, the state could reasonably expect to reduce the occurrence of prostitution. But surely the federal government can’t regulate the number of times a couple must have sex in a week, Barnett concluded.
Monday, I asked him if Congress could now regulate marital sex. “Yes,” he said, “under the reasoning of the majority opinion.” Kerr wasn’t sure: “It’s my hope that Congress never tries.”
It’s a strange day when two seriously ill women are told they may face arrest and incarceration for using a medicine their doctor legally recommends under state law and we can say that’s a victory for liberals. The anti-federalist bloc — John Paul Stevens, David Souter, Ruth Bader Ginsberg and Stephen Breyer — held together even in the face of the plaintiffs’ tear-jerking medical histories. “We knew that the liberal bloc would be against us,” said Barnett, “but hoped they’d look at the compassionate side and make an exception. To their credit, they were not result-oriented. Their commitment to federal power overrode their compassion for the patients in this case … You have to admire their principled stand.”
The liberal bloc, though, did have a way out, which Justice Sandra Day O’Connor pointed them toward in her dissent, joined by Thomas and William Rehnquist. “The states’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens.” The liberals, haunted by the ghost of Jim Crow, weren’t buying.
Medical marijuana is probably most well known for its ability to reduce nausea and increase appetite. Just try to find someone who doesn’t know pot gives you the munchies. It may seem minor, but to someone undergoing powerful rounds of chemotherapy, something that can stop you from throwing up and give you a bit of an appetite can be the difference between life and death. So was Chief Justice William Rehnquist puffing medical marijuana to combat the side effects of chemotherapy?
“I don’t have any particular evidence of that, of course,” said Robert Raich, Angel’s husband and a co-counsel. “But when a person is terminally ill and suffering, they might have a deathbed conversion of sorts.” It wouldn’t be the first speculation of a personal motive behind a Rehnquist decision. Linda Greenhouse, in an Op-Ed in the New York Times in 2003, tried to explain his anti-federalist ruling in Nevada vs. Hibbs. The Family and Medical Leave Act was on trial, and many expected the Supreme Court to strike it down on federalist grounds. It didn’t happen, partially thanks to Rehnquist. Greenhouse speculated that Rehnquist’s daughter, a single mother, may have played into his thinking, adding that he left court early several times that term to pick up his granddaughters from school.
Barnett doesn’t buy it. “I think the fact that we got Rehnquist shows that our case was reasonable … and when you get O’Connor, you’re supposed to win.” Rehnquist, Barnett added, is no softy on drugs, having had a significant role in the original drafting of the Controlled Substances Act, back when he was assistant attorney general under President Nixon in 1970. Also, insiders have speculated that Rehnquist made the decision to join the 6-3 Hibbs majority so that he would write the majority opinion instead of Stevens. That doesn’t leave much room for the “Rehnquist the converted stoner” theory — which shouldn’t stop us from tossing it around anyway.
Perhaps the biggest loser on Monday was our nation’s least-loved constituency, fans of child porn. “The most immediate effect,” says Kerr, “is on [the] child pornography cases kicking around in the lower courts.” Apparently, folks have been arguing that federal laws against child pornography are unconstitutional because there’s no interstate commerce involved. With Raich’s extension of federal power, the argued distinction between inter- and intrastate commerce is now too slim for these child-porn fans to slip through. Something need not cross state lines to be considered interstate, and need not be bought or sold to be considered part of commerce. And just when you thought it was safe to buy child porn …
Antonin Scalia‘s dilemma was perhaps the trickiest of all. In the thick of his campaign for chief justice, he had to stick somewhere near his expressed principles, not piss off Republicans in Congress and the White House — and, of course, make sure there are no hippies smoking legal marijuana anywhere in his United States. “Scalia tends to be more interested in originalism when it fits into his Catholic social conservatism,” says Bernstein, “or when he’s using it to bludgeon the left.”
“It all comes down to morality,” says plaintiff co-counsel Michael. And Scalia made his moral position clear during oral arguments. At one point, Scalia dove back in his chair, threw up his arms and nearly shouted, “There are some communes that grow marijuana for the medical use of all of the members of the communes!” — shuddering in horror at the idea that the government (state, federal, whatever) would allow a bunch of deadbeats living on a commune to legally grow marijuana. “I was struck by Scalia’s emotional reaction,” said Barnett. “I didn’t know what he was talking about. Had I known he was talking about the cooperatives, I could have corrected him.”
Not much of doctrinal interest should be culled from Scalia’s decision, however, since his vote in the 6-3 decision didn’t matter. Had Scalia dissented on principle, he would have been sending a signal that he wants to curb congressional power, never a good idea when you may soon need congressional confirmation. At the same time, he may have been trying to assuage the left, showing that he’s not some nutball who wants to roll back the clock to 1789. With the filibuster alive to fight another day, every vote counts.
Monday wasn’t a good day for America’s million-plus imprisoned nonviolent drug offenders. Last summer in Minnesota, 63-year-old Air Force vet Jerome Schaffer was arrested on his way home from the hospital, where he’d received treatment for side effects of the chemotherapy he was receiving to combat colorectal cancer. He spent the night puking in a jail cell and afterward was forced to take drug tests to make sure he wasn’t using marijuana to combat his symptoms. If that’s how the government treats veterans like Schaffer, it doesn’t look too good for the rest of us.
Fortunately, those liberal slaves of principle in the court’s majority — who compassionately lamented the “respondents’ strong arguments that they will suffer irreparable harm” if deprived of medical marijuana — have some sage advice for the millions of victims of the war on drugs. “Perhaps even more important,” croons Stevens at the end of his opinion, “is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.”
That one day could come as early as next week, when Congress is likely to vote on the Hinchey-Rohrabacher amendment, which would prohibit the federal government from spending money to arrest, prosecute or incarcerate patients who use medical marijuana on the advice of their doctors in states where it is legal. Polls have shown upward of 80 percent support for this amendment in past years, so, of course, it loses every year by 100-plus votes. But if the Supreme Court told us nothing else on Monday, it was that if this drug quagmire is ever going to end, it’ll have to be stopped by the ones who started it: members of Congress. Until then, we’ll gradually build our way to a society where half the population is locked in prison and the other half is guarding the prisoners.
Ryan Grim is a frequent contributor to the Brooklyn Rail and a former staffer at the Marijuana Policy Project. More Ryan Grim.
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