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.