Commerce Clause Doctrine and “Practicalities”
Ernie is disappointed by the majority’s (and Justice Scalia’s) refusal to examine the practical effects of the state’s regulation, which supposedly keeps nonmedicinal, nonintrastate users from having the protection of the state law. But I’m not sure why they should have done so. If a lot of people are running around legally possessing marijuana, they can sell or give it to others while the state isn’t looking. To be sure, if the state catches them, or catches the people they give it to, then it can prosecute them. But enforcement is always porous in this context, so creating a mass of legal marijuana floating around is inevitably going to make it harder to enforce the federal prohibition. (And, of course, if someone with an ID card buys marijuana from out of the state, it may be impossible to prove that the marijuana really came from out of state.)
And this all assumes the state is prioritizing enforcement of the limits on medical use of marijuana to the same extent as the federal government would. But what if they don’t? Are courts supposed to examine the vitality and vigor of state enforcement — the practical facts on the ground — to determine whether the federal law is constitutional? What’s the benchmark for determining whether state enforcement is vigorous enough? What if the vigor of state enforcement changes over time? Can it really be true that the constitutionality of the federal statute — which, after all, has the entirely permissible general object of prohibiting interstate commerce in a particular commodity — depends on these kinds of assessments?
In the end, a careful inquiry into what Ernie calls the practicalities just doesn’t seem very practical.
The court didn’t even need to consider your totally illusory parade of horribles before assuming a minimumly rational federal policy should trump all inconsistent attempts at state regulation. So Wickard lives, Lopez and New Federalism have been emasculated and sick people suffer because they’re a political football in the War on “Drugs”. Happy now?
Comment by jackl — June 6, 2005 @ 10:09 pm
So are you saying that controlled substances like Oxycontin and cocaine should be removed from the medical arsenal as well because of the potential for diversion?
Your argument does not square with medicine as currently practiced.
Nice try though.
Comment by M. Simon — June 6, 2005 @ 10:27 pm
“But enforcement is always porous in this context,…”
Hahahaha…that’s one of the strongest and funniest understatements I’ve heard in a while. Law enforcement in the WoD is porous and highly selective, in ways that clearly violate the equal protection clause…but thanks for the chuckle!
As the recent Sentencing Project study demonstrated, this is a generic law-enforcement tool, used selectively and disproportionately on target demographic groups, primarily for leverage, often as an investigative technique. It provides an easy means of circumventing 4th amd. protections, based on an officer’s expert sense of ’smell’. It gives prosecutors leverage to build much more threatening sentencing regimes in different cases by criminalizing a whole range of additional, otherwise legal, activies. For example, owning a licensed firearm or having a child.
Moreover, most recent studies of various interdiction efforts, from border control to military/’horticultural’ efforts in Columbia, demonstrate that law enforcement is abjectly failing to do anything more than increase the attendant levels of violence.
…getting off point.
“…so creating a mass of legal marijuana floating around is inevitably going to make it harder to enforce the federal prohibition.”
Ha! Again, POROUS is the word – the “mass of legal marijuana” ostensibly for medical purposes would hardly amount to a drop in the bucket relative to the total volume floating around already.
It would not make it more difficult for law enforcement to distinguish and regulate illegal manufacture and distribution – it seems to me the Feds made the transition to prosecuting illegal alcohol production pretty well, even after prohibition ended. Regulatory schemes to address licensing, inspection, as well as production, inventory and distribution security are well understood, by the existing pharmaceutical and alcohol industries, as well as the states (who frequently operate the post-production distribution).
It would make it modestly more difficult to prosecute random consumers, but only marginally – a problem law enforcement already confronts with the opiates referenced by the above poster. Presecriptions and ID cards leap to mind.
I think the previous commenter got it right: “Nice Try”
I have to agree with Scalia’s formulation as the best bit of reasoning in favor of ruling for the government, from a theoretical (as opposed to practical) matter, but hey, I’m not a lawyer. In many ways, his concurrence does a great job of addressing the shortcomings of Stephens’ bland re-affirmation of the existing law. He helps better define what the court did intend in circumscribing the open-ended power of Congress in the Commerce Clause.
I suppose his distinction is a constitutional question as opposed to a finding of fact. It seems to me (again, a layman) that the bloggers and commenters who are upset about the ‘practical’ considerations are focusing on a finding of fact – whether or not this carved out class is a meaningfully distinct class, for economic purposes. The majority seems to say that Wickard settled this, and they aren’t getting into trying to draw new lines. Scalia provides more or less the same reasoning – he’s just protecting his carve-outs for purely “local” activity in Lopez and Morrison. It seems to me that he does so by suggesting that a distinction about class of activity is irrelevant in the case that Congress is attempting to ban a market outright, rather than simply regulate it. In the case of a ban, activity is inherently in conflict, without regard to type.
I think Scalia does this for the reasons Orin Kerr suggested in analyzing the majority: they are pursuing a symbolic federalism in pursuit of moving the law in that direction without engaging in radically controversial rulings (judicial activism – can you hear the screeds & screeches from the social-conservatives (reactionaries) had they upheld Raich?). Scalia doesn’t like leaving that mushiness around, so he tries to draw clearly lines around the carve-outs for Lopez and Morrison, insisting they aren’t “little more than a drafting guide.” He gets to be with the non-controversial majority, but still hold onto his conservative purist reputation.
Legalization of MM would allow a class of consumers to come out in the open, and demonstrate the degree to which the emporer has no clothes, as a matter of policy, regarding the harm of consuming this ’schedule 1′ – of course, under the current policy/enforcement regime, marijuana is a lot more harmful to your well-being, unless you’re a middle-class ‘caucasian’ or upper class. Selective enforcement has already carved out a special class.
If you read this far: thanks! I obviously have no legal training, but I love this blog – what a truly great and informative bit of ‘new media’ – thanks for the opportunity to comment.
Comment by S. Ruffner — June 8, 2005 @ 11:20 am