federalism goes to pot

Federalism Goes to Pot. (updated)
The Supeme Court heard arguments today on California's Compassionate Use Act, the 1996 initiative that allows marijuana growth and use where doctors deem appropriate. The case today came after federal agents prosecuted a California woman that grew and used marijuana to treat a degenerative spine condition. She and another woman sued the federal government, arguing that the federal Controlled Substances Act, under which the federal agents prosecuted the marijuana use, does not prevent people in California from using marijuana permissible under the California law.

I am not sure exactly how the legal issues are framed. Apparently, the California women seek an injunction against federal action that conflicts with state law on marijuana. A New York Times editorial suggests they are arguing that the federal law reaches beyond what is permissible under the Commerce Clause. That editorial, though, reveals the odd relationship people have with the commerce clause.

In criticizing the states-autonomy crowd, The Times thinks, incorrectly, that "the
Advocates of states' rights have latched onto this case and are urging the court to use it to radically rewrite its commerce clause rulings, reviving ancient precedents that took a more limited view of Congressional power." The advocates may have so latched- but the precedents here are more watery than the Times implies. Congressional power under the commerce clause is far from set in stone. The scope of federal congressional power has waxed and wained over the years. In the same editorial, The Times correctly notes that the scope has narrowed of late.

The reception to lawmakers' scope under the commerce cause problematically changes; usually, the Court observer's views shift with the federal policy at play. For inststance, many of those that complained that Lopez was wrong to say that guns were outside the scope of interstate commerce will now jump to argue marijuana is outside that scope. And, of course, visa-versa.

I fear the Times editorial displays this trend. Like the majority writers for Bush v. Gore, the Times wants a narrow ruling on these facts alone. The California marijuana use ought to exist outside the commerce clause because it has nothing to do with interstate business. The Times does not explain, though, why medicinal marijuana use and growth is unconnected to interstate commerce while guns in schools (or bathrooms in restraunts, for that matter) are.

The commerce clause has done a great deal to bring progress where state governments have blocked it. My thought right now is that we have to take the oyster with the pearl, and accept broader rather than stricter congressional power. I was anti-Lopez; thus, I think I need to be pro-Controlled Substances Act.

Still, I do not abandon the notion that my jurisprudential attitude can change with policy. There are plenty sound thinkers in the pragmatists school.