T Nation

Medical Marijuana Case

[quote]vroom wrote:
Boston,

On a different note, I recall hearing a lot of complaints about judges “writing laws”.

If the supreme court in it’s wisdom “writes laws” and extends federal powers without basis in the constitution, won’t that be just as annoying?

In other words, is it only a problem when the decisions are “liberal”?[/quote]

Yes to the question in your second paragraph, no to the question in your last paragraph. Activist judges are a structural problem, irrespective of the outcome of their decisions.

For an example of some truly activist and legislating judges on the state levels, see this article:

Judges should not be making policy or making decisions that amount to effecting legislation.

[quote]vroom wrote:
Boston,

Going back from Wickard v. Filburn, the Court has allowed Congress to expand the definition its power of regulation of interstate commerce from actual interstate commerce to anything that “in the aggregate could affect interstate commerce” (my paraphrase).

Well, unfortunately, it is very likely that allowing this activity will have an affect on drug research and manufacturing activities both within California and outside of California. Given the weakened state of the commerce clause this could be enough to enable federal oversight.

However, at the same time, this type of argument is easy to see as grasping!

The court, having chosen to hear the case, has hopefully chosen to place a stake in the ground with respect to the division of powers between federal and state governments vis a vis the commerce clause.

I see your point. The conservative anti-drug viewpoint is going to butt up against the conservative strict interpretation of the constitution viewpoint on this one.

Something to consider is that there is no existing commerce in marijuana yet! The reasons used to justify federal oversight in other cases may not apply when there is in fact no market. There is no interstate trade and there is no foreign trade to be impacted.

It’s going to be interesting to see how the court chooses to address the issue. My guess is they will find for the medicinal use of marijuana, though attempt to limit their finding such that it creates the smallest impact possible on existing powers and policy.

If they disallow it, or create a gaping hole in the commerce clause, I think we will have some interesting ramifications to address in the coming years.[/quote]

vroom:

See the link to the oral arguments that I posted above – there are lots of questions/answers there that speak to your points (much better than I could):

http://lsolum.blogspot.com/archives/2004_11_01_lsolum_archive.html#110176341608722107

As to the effects, the theory for finding a lack of federal power in this area fits perfectly with a libertarian/conservative outlook, though poorly for someone whose outlook is solely culturally conservative.

[quote]Professor X wrote:
BB, the bottom line is old politicians do not want marijuana legalized. It is very hard to reverse the stigma attached so that might explain the ridiculous run around the topic. You would think Cheech and Chong would have made more of a dent on the issue. I have yet to hear a good reason for why it should not be legalized for medical use aside from people ranting that “we need to save the children!!”[/quote]

I hate when they use the “save the children” argument, and they always do! It’s as if letting people with cancer use their medicine will lead to crack being given to babies! It pisses me off to no end. But, they are indeed grasping, they can keep up this charade for only so long. After all, if marijuana is as dangerous as they say it is, where are the bodies? Right.

Slighty OT, BostonBarrister (and everyone else actually) what would you like to see as a legalization plan for marijuana?

I would imagine it would be legalized along the same lines as alcohol or tobacco, with the states regulating access by minors to whatever degrees they find appropriate. The feds and states could levie “sin taxes” on it if they desired. I don’t know that they’d need much more of a plan than that.

Boston,

I’m not sure they always have a choice, if you catch my drift. Once a case gets in front of them, and needs to be decided, don’t they have to decide something?

My contention remains that the judicial system interprets the laws, or the lack of them, unless and until new laws are put in place to clarify or correct that interpretation. This doesn’t mean they don’t go to far, what government body doesn’t at times?

Also, on a different note, is this a new problem? I thought the legal system was steeped in tradition that has run back all the way to the Magna Carta and beyond, perhaps to Hammurabi.

Anyway, if you don’t mind the hijack, since this thread appears really to be just awaiting more action by the principals involved…

When do you think the problem of activist judges manifested and what do you think judges should do when the legislation is nonexistent or unclear on an issue?

What then is their role as you see it?

vroom:

They most certainly do have a choice. A judgment should generally be one of two forms: This is wrong, and the legislature or executive must fix it; or This is right, and no change is necessary. In the interest of economizing judicial resources, the judges might even try to set some minimums – however, something like Miranda v. Arizona in which the court legislated the precise solution, goes beyond the function of the court, which is solving cases and controversies and interpreting ambiguities in the law. Courts shouldn’t set policies. They are not policy-making bodies, and it violates the principles of a representative government to have the judiciary usurping the legislative or executive functions.

As to the history, there has always been some amount of what one could call “activism” if one strained for a definition. However, focusing on the USSC, the problem became much more acute around the time of the “switch in time that saved nine.” After that, progressives led a slow progression of activism, but it really went beserk under the Warren Court. There has been a slow pullback going on since Rehnquist assumed the Chief Justice position, but it has been in fits and starts.

It hasn’t helped matters that politicians generally are only too happy to defer real decisions to the courts – that way the politicians can’t be held accountable. Legislators shouldn’t punt to the courts, and neither should the executive. George Bush failing to veto the McCain-Feingold campaign finance reform bill when he clearly stated he thought it was unconstitutional is a case in point - the executive has a responsibility to interpret the Constitution himself and exercise his veto power accordingly. If the politicians don’t want to make decisions, the courts will step into the void – but that’s not how it is supposed to work.

A libertarian’s interpretation of the forces at play on the “federal enforcement” side.

[David Bernstein, November 29, 2004 at 10:24pm] Possible Trackbacks
Medical Marijuana Case–I hope she’s Wrong:

I heard NPR’s Nina Totenberg report on Raich v. Ashcroft this evening. She ended her segment by suggesting that “by the end of the argument, it wasn’t clear that Barnett had even one vote for his position,” or words to that effect. Solum’s transcript of the argument suggests otherwise, and I think that Randy did a great job. Whether that will be enough to overcome the statist liberal obssession with ensuring that every aspect of human life may be regulated by the federal government (despite a profound lack of constitutional legitimacy for such a position), and the statist conservative obssession with making marijuana users into criminals, remains to be seen. I’m not optimistic, largely because I think that the Court tends to take cues from the political branches, and the conservatives Randy needs to win over aren’t exactly getting the sort of strong limited-government signals from Republicans in Congress they were getting in 1995, when the Court began its so-called “federalism revolution” (hah!) in Lopez.

If you REALLY want to get into the issues of the case – at least as seen by the lawyers on both sides – here’s a link to the briefs they filed with the USSC:

Also, here are the impressions of one of the bloggers at the SCOTUSBlog on how the justices are swinging:

6:17 PM | Lyle Denniston

The federalism revolution – revisited
Nine and a half years ago, Justice Clarence Thomas wrote the following: ?It seems to me that the power to regulate ?commerce? can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States.? Those thoughts, in a concurring opinion in the 1995 case of U.S. v. Lopez, lingered in the background Monday as the Justices weighed the federal government?s power to regulate another activity traditionally reserved to the states as they look after their citizens? health, safety and morals: the practice of medicine.

Thomas, as usual, said not a word as the Court heard the case of Ashcroft v. Raich (docket 04-1454), but it was clear that the reach of Congress? legislative power over commerce was the most critical issue in the new case. Thomas is the most skeptical member of the Court on that subject, at least when federal commercial legislation impinges on state prerogatives. Justice Stephen G. Breyer is the most tolerant of that power, as he made very obvious again Monday even as Thomas kept silent.

From the moment, early in the hour-long argument, that Justice Sandra Day O?Connor began exploring the precedents ? including Lopez – there were reverberating echoes of the current Court?s deep division over the Commerce Clause?s scope. But the Raich case seems to have at least the potential to scramble the usually predictable division of the votes in this field of constitutional law.

Justice O?Connor, a steady vote to limit Congress? power when federalism seems threatened, was energetic in demanding that the Justice Department justify its attempt to use federal narcotics-control law to regulate the marijuana-as-medicine experiment brought about by ballot initiatives in California and seven other states, and by state legislation in two others. But her usual partner in federalism cases, Justice Anthony M. Kennedy, seemed almost eager to accept the government?s argument that it needs to stamp out all possession of marijuana, however small the amount and whatever the use to which it is put, because of the social evil of drug abuse.

Justice Antonin Scalia, ordinarily a solid vote for the states against Congress? use of its Commerce Clause authority, was skeptical of both sides in Monday?s argument, leaving it unclear whether he thought the social problem at stake was the threat to the states? prerogative to regulate medicine, or the threat to the federal Controlled Substances Act?s enforcement. Chief Justice William H. Rehnquist, ordinarily one of the five-Justice majority in maintaining the federalism revolution, was absent from the argument session.

Justice Breyer, the hearty defender of many exercises of federal authority, continued in that role as he aided the Justice Department argument throughout. Normally given to somewhat convoluted questions or comments, Breyer neatly summed up his view of the Raich case by suggesting that ?medicine by regulation is better than by referendum.? But his usual partner in sternly resisting the federalism revolution, Justice John Paul Stevens, left little doubt that he thought California may have found a way to create a very limited exception to the federal marijuana ban. Justice Ruth Bader Ginsburg also appeared to be modestly sympathetic to the medical marijuana venture. But Justice David H. Souter, the fourth of the customary dissenters to federalism rulings, made comments that suggested he thought that experiment could get out of hand, and become a part of the illicit drug market.

Acting Solicitor General Paul D. Clement, defending the policy argument that marijuana must be banned without exception, demonstrated how very much the government needs to fit its case into the 1942 precedent in Wickard v. Filburn. That case, decided in November almost exactly 62 years ago, was the high-water mark of the federal government?s authority to reach down to the most local transaction to regulate economic activity. He seemed, however, to have real difficulty persuading O?Connor that this was the controlling precedent in Raich. The patients who have challenged the Justice Department ban were represented by Boston law professor Randy E. Barnett, who suggested that, if the government wins this case, Ashcroft v. Raich would replace the Wickard decision as the Court?s most sweeping embrace of Congress? Commerce Clause powers.

This statement from that site:

[quote]Congress passed the CSA ?to deal in a comprehensive
fashion with the growing menace of drug abuse
in the United States * * * through providing more
effective means for law enforcement aspects of drug
abuse prevention and control.? H.R. Rep. No. 1444,
supra, Pt. 1, at 1; accord S. Rep. No. 613, 91st Cong., 1st
Sess. 3 (1969) (?[T]he overall purpose of the bill is to
improve the administration and regulation of the manufacture,
importation and exportation of the controlled
dangerous substances covered under its provisions, so
that the widespread diversion presently occurring can
be halted.?). In furtherance of its central purposes, the
CSA comprehensively bans all manufacture, distribution,
and possession of any scheduled drug unless
explicitly authorized by the Act. 21 U.S.C. 841(a)(1),
844(a). That is why marijuana, like all other listed
drugs, is a ?controlled? substance under the CSA. The
Act thus establishes ?a ?closed? system of drug distribution?
for all controlled substances by ?provid[ing] for
control * * * of problems related to drug abuse
through registration of manufacturers, wholesalers,
retailers, and all others in the legitimate distribution
chain, and [by] mak[ing] transactions outside the legitimate
distribution chain illegal.?[/quote]

and this statement:

[quote]Even today, despite the federal prohibitions on
marijuana, ?[t]he indoor and outdoor cultivation in most
regions of the country, as well as the presence of marijuana
smuggled into the United States from foreign
sources, contributes to the pervasiveness of the drug.?..Indeed, ?U.S.
marijuana users spent approximately $10.5 billion on
marijuana in 2000.?[/quote]

Confuse me. Clearly, all of these actions to prevent the use have not worked and are not working. Is it simply fashionable for conservatives to jump on the bandwagon of trying to regulate every aspect of the lives of citizens in this country? If the woman is sick and her doctor approved her use of this plant, what is the problem? It seems we are holding onto laws simply because they are laws and definitely not because they are actually working.

Not to nitpick or get off topic, but doctors can’t perscribe you cocaine.

The basis of a substance being classified as schedule I is on the grounds there are no medical uses. Therefore cocaine, being schedule I, cannot be given to you by a doctor.

If pot is proven to have a medical use then it should rightfully be moved out of a schedule I substance (which means it could be used anywhere with a prescription). I wonder how this will play up if California wins the case?

[quote]Professor X wrote:
This statement from that site:
Congress passed the CSA ?to deal in a comprehensive
fashion with the growing menace of drug abuse
in the United States * * * through providing more
effective means for law enforcement aspects of drug
abuse prevention and control.? H.R. Rep. No. 1444,
supra, Pt. 1, at 1; accord S. Rep. No. 613, 91st Cong., 1st
Sess. 3 (1969) (?[T]he overall purpose of the bill is to
improve the administration and regulation of the manufacture,
importation and exportation of the controlled
dangerous substances covered under its provisions, so
that the widespread diversion presently occurring can
be halted.?). In furtherance of its central purposes, the
CSA comprehensively bans all manufacture, distribution,
and possession of any scheduled drug unless
explicitly authorized by the Act. 21 U.S.C. 841(a)(1),
844(a). That is why marijuana, like all other listed
drugs, is a ?controlled? substance under the CSA. The
Act thus establishes ?a ?closed? system of drug distribution?
for all controlled substances by ?provid[ing] for
control * * * of problems related to drug abuse
through registration of manufacturers, wholesalers,
retailers, and all others in the legitimate distribution
chain, and [by] mak[ing] transactions outside the legitimate
distribution chain illegal.?

and this statement:
Even today, despite the federal prohibitions on
marijuana, ?[t]he indoor and outdoor cultivation in most
regions of the country, as well as the presence of marijuana
smuggled into the United States from foreign
sources, contributes to the pervasiveness of the drug.?..Indeed, ?U.S.
marijuana users spent approximately $10.5 billion on
marijuana in 2000.?

Confuse me. Clearly, all of these actions to prevent the use have not worked and are not working. Is it simply fashionable for conservatives to jump on the bandwagon of trying to regulate every aspect of the lives of citizens in this country? If the woman is sick and her doctor approved her use of this plant, what is the problem? It seems we are holding onto laws simply because they are laws and definitely not because they are actually working.[/quote]

Prof X –

Nah, it’s not that – it’s just lawyer-ese.

Firstly, I believe the Controlled Substance Act dates back to before the Republican controlled Congress, and if this specific bill doesn’t, there was definitely a series of legislative action banning various drugs going well back before “conservatives” could have forced through an agenda.

Secondly, the federal government is pressing this for a couple reasons. It wants to keep control of anything drug related (as in prescription drugs) under the authority of the FDA. It also wants to push for its powers to tell the states what to do when it wants to adopt broad regulatory measures, and this case is a challenge - albeit a limited one - to that authority. Given the general amount of time it takes for a case to be tried, go through appellate processes and come up before the court, I wouldn’t be surprised if this case was originally filed against the Clinton Administration (they change names on appeal if the parties change – in this case, Reno would have been dropped and Aschroft added) - note that CA passed its “Compassionate Use Act” in 1996, and this case is just coming up now.

As to whether the government’s Controlled Substance Act works or not according to its stated purposes, that question isn’t before the court, and wouldn’t even be considered. All the lawyer is doing is saying that Congress had a purpose in passing the law, and stating what it was – if this is in fact in Congress’ powers under the Commerce Clause, then putting forth the reasoning establishes the 'rational basis" for the law, which is the standard of judicial review. If Congress has the power, then supremacy dictates that the Congressional law would control, and the CA law would be struck down.

The key question, then, is whether Congress had the power, under its Commerce Clause power, to regulate this particular activity at all.

BTW, Prof X –

To tie this in to my posts to vroom above, it should be the legislature that decides whether the law is working or not – people should petition their Congressional reps and Senators and urge them to repeal the law, or exclude marijuana from its list of “controlled substances” if they want to effect a change in the law.

The Court is deciding a different question from efficacy – it’s deciding a question on the limits of the Congressional Commerce Clause power.

[quote]Professor X wrote:
BB, the bottom line is old politicians do not want marijuana legalized. It is very hard to reverse the stigma attached so that might explain the ridiculous run around the topic. You would think Cheech and Chong would have made more of a dent on the issue. I have yet to hear a good reason for why it should not be legalized for medical use aside from people ranting that “we need to save the children!!”[/quote]

Meant to reply to this earlier.

I agree – most especially about how “the children” are trotted out every time a politician wants to pass something dubious. If you see children listed as the reason for something, pay close attention – it’s not proof of bad law, but it should be a red flag for extra vigilence.

As for legalization for medical use, I suppose it depends on whether one believes it should be regulated like a prescription drug (the way steroids are, for instance) by the FDA, or whether it should be generally legalized, subject to local regulations in the same way alcohol and cigarettes are. Two totally different arguments. My preference would be for the latter – this case, unfortunately, won’t affect that calculation at all, but whether the FDA should regulate could come into play.

[quote]ArnldNaledUrMom wrote:

Doctors can prescribe all kinds of things for you, cocaine, morphine, drugs that alter brain chemistry, drugs with severe side effects, etc.

Not to nitpick or get off topic, but doctors can’t perscribe you cocaine.

The basis of a substance being classified as schedule I is on the grounds there are no medical uses. Therefore cocaine, being schedule I, cannot be given to you by a doctor.
[/quote]

Go ahead and nitpick. Too bad you’re wrong :slight_smile: Cocaine is Schedule II and can be prescribed by your doctor. It’s used as an analgesic. Opium is also Schedule II. Here is a link: http://www.usdoj.gov/dea/agency/csa.htm
Scroll down about 1/4 of the way.

Well, cannabis should have been moved out of Schedule I a long time ago, but the gov’t has stonewalled. After all, the main ingredient in cannabis is Schedule III! And cannabis has been used for medical purposes for about 4000 years, starting in China. Hemp has been in use since 8000BC, being used to make cloth in Babylonia.

To-Shin Do

Boston,

The courts are only used when something is in contention, when something is in disagreement, otherwise there would be no need for the judicial branch at all. While they don’t have to go about legislating, I still don’t see that they have a choice.

They must make a decision once they have a case brought to them. They must justify their actions and explain them and in doing so they set a precedent. Are you suggesting the entire judicial system has been set up completely wrong and needs to be radically overhauled in some way?

Also, if the executive punts, the legislature punts and related cases end up in front of the courts, should they punt as well? Even if they are pissing us off, at least they are acting! The legislature can make new laws to replace those created in a vaccuum any time they wish. Their unwillingness to act and thereby leaving the judgements in place is the real problem here.

I think you should follow your own advice and complain to your legislative representatives and get them to overturn the precedents set by the judicial system by creating new and effective legislation which represents the will of the people.

vroom:

On your point about whether the entire judicial system was set up incorrectly: It was set up very well – it’s the implementation that has been the problem. Judges should not make policy or usurp legislative or executive functions.

Whether the legislatures can act to overturn bad judicial rulings depends on what the judges claim as the basis for their rulings. If they claim the basis is a law passed by the legislature, the legislature can “overrule” the judicial ruling via changing the law. However, if the judges claim a constitutional basis for their ruling, as many of the most contentious cases of judicial activism do, then there is no capacity for the legislature or the executive to act as a check.

As for acting, the courts should not act if a matter is outside the purview of their function. If the judges were to avoid making pronouncements, any political pressure for action would come on the politicians – they could then ignore it at their peril. However, when unelected judges take up the call, they exempt the politicians from their accountability to the voters. So, in other words, No, it’s not better for the courts to step in when the legislature and the executive punt.

Even in matters the legislature could fix, it has bad effects and it is outside of their function (and, unfortunately, many such legislative-type decisions don’t affect enough people who are aware as to what’s affecting them or how to fight it by exerting pressure on the legislature).

On another point, courts do not have to make forward-looking policy pronouncements in order to decide a case in front of them. All they have to do is settle the case or controversy immediately before them – and that’s only if it is a proper matter for the courts to decide. There are matters outside the jurisdiction of the courts that they have no business deciding – when you reach the USSC, you’ll normally find them describing such items as “political questions.” (They have other code-words, such as “unripe” or “non-justiciable”, but I like “political question” best) Suffice it to say that many more items should fall into that category than actually end up making it to that category.

Don’t misunderstand me though – the courts are supposed to resolve ambiguities. But there is a huge difference between resolving an ambiguity in a manner that at least attempts to reflect what the legislature wrote in the text, using the context of the time it was passed, and being legislative by reading modern meanings or just plain making stuff up and claiming it is somehow pre-existing “in the penumbra” of the document. And there’s an even bigger difference between resolving an ambiguity in how to read a law and laying down a ruling that requires a particular policy, such as the Court did in Miranda v. Arizona.

So, in sum, no, courts don’t have to act for the other branches, and they should not do so, as it weakens the representative democratic system.

Boston,

Good points with respect to the judicial system and writing law. We’ll have to wait and see what happens with this case to see how the nature of the relationship between the federal government and the states has been rewritten.

[quote]vroom wrote:
Boston,

Good points with respect to the judicial system and writing law. We’ll have to wait and see what happens with this case to see how the nature of the relationship between the federal government and the states has been rewritten.[/quote]

This is why Bush wants to put strict constuctionist judges in the positions opening up in the next few years. They seem to understand the role of the judicial branch a liitle better than the non-constructionists.

Legalize pot, without any restrictions except for age.

That’s all I have to offer to this forum. Pot is safer than alcohol and even tobacco if not smoked.

Give me my pot! I haven’t had any for YEARS, and I think that’s why I’m so damn grumpy.

:wink:

This is an excellent article explaining the federalism aspects of this case:

http://www.nationalreview.com/adler/adler200412010837.asp

December 01, 2004, 8:37 a.m.
High Court High Anxiety
The Supreme Court?s medical-marijuana case could send federalism up in smoke.

Angel McClary Raich is seriously ill. Diagnosed with an inoperable brain tumor and several complicating conditions, Raich found traditional medical treatments to be of little use. Having exhausted every legal alternative, her doctor recommended that she try marijuana ? and it worked. Like many individuals suffering from chronic pain or loss of appetite, Raich found that marijuana alleviated her symptoms substantially. Yet to continue with this treatment, Raich, and those who supply her with marijuana free of charge, had to break federal law. Under California law, Raich can possess and use marijuana pursuant to a doctor?s prescription or recommendation. Yet according to the federal government, even such minimal marijuana possession approved by a doctor remains illegal.

Fearing potential prosecution, Raich went to federal court seeking a declaratory judgment that, among other things, the federal government lacks the constitutional authority to prohibit simple marijuana possession for personal medical use. Represented by noted libertarian law professor (and sometime NRO contributor) Randy Barnett, Raich argued that, at least as applied to her situation, the federal Controlled Substances Act (CSA) is unconstitutional. This week, the Supreme Court heard oral arguments in her case, Ashcroft v. Raich. At stake is more than California?s effort to legalize the medical use of marijuana. A decision for the federal government could send federalism and the constitutional doctrine of enumerated powers up in smoke.

On behalf of Raich, Professor Barnett argued that the cultivation and possession of marijuana ?solely for the personal medical use of seriously ill individuals, as recommended by their physician and authorized by State law? is simply beyond the reach of federal power. Under our constitutional structure, states retain ?broad powers to define criminal law, regulate medical practice, and protect the lives of their citizens.? Federal power, on the other hand, is limited to the specific grant of enumerated powers in the Constitution, and does not reach mundane questions of criminal law. No matter how worthy the purpose of a given federal statute, it remains invalid if it exceeds the constitutionally proscribed bounds.

The federal government maintains that it has the power to prohibit the possession of any and all drugs, even in infinitesimal amounts, and therefore that California?s effort to legalize medical marijuana is preempted by federal law. Under the CSA, it is a federal crime to possess ?schedule I? drugs like marijuana, with or without a doctor?s prescription. Like most federal regulatory statutes, the CSA was enacted pursuant to Congress?s power to ?regulate commerce…among the several states.? As currently understood, this clause grants Congress the broad power to regulate commercial enterprises and other activities that have a ?substantial effect? on interstate commerce. There is little question that this entails the power to regulate the production, distribution, and sale of pharmaceuticals, particularly insofar as medical markets are of national scope. Congress can empower the Food and Drug Administration to set conditions on the sale of approved pharmaceuticals and may authorize the Drug Enforcement Agency to arrest those who buy and sell drugs contrary to federal law.

In this case, the federal government also maintains that it can prohibit the simple possession of a drug for medical purposes, even when authorized and regulated by a validly adopted state law, and even if conducted in a wholly noncommercial fashion. Such power, the federal government asserts, is necessary to maintain a comprehensive federal regulatory system for the use and distribution of drugs. Moreover, even the mere possession of drugs can ?substantially affect? interstate commerce, as there is a vibrant, albeit illegal, interstate drug market.

This argument proves too much. Under the government?s reasoning there is no activity beyond Congress?s grasp ? a position the Supreme Court has repeatedly rejected over the past ten years. Essentially, the Justice Department maintains that the power to adopt broad economic regulatory schemes necessarily entails the power to reach the most inconsequential, noncommercial conduct that occurs wholly within the confines of a single state. Even at the height of federal power during the New Deal, the Supreme Court never authorized an assertion of federal power as expansive as is at issue here. Should the Court uphold the assertion of federal power in this case, constitutional limitations on the exertion of enumerated federal powers could well disappear.

Under the federal government?s logic, Congress could enact an omnibus child-care statute, regulating the care and feeding of children and infants in private homes, because child care is often an economic enterprise and the federal government could assert an interest in regulating the market for child-care services. Not even the infamous case of Wickard v. Filburn, in which the Supreme Court upheld Congress?s power to regulate the planting of wheat on an individual farm, reached this far. At least farmer Filburn was engaged in economic activity ? planting wheat as part of a larger economic enterprise (his farm). Angel Raich?s marijuana possession, however, lacks even this passing connection to economic activity. It was on this ground that the Supreme Court struck down federal statutes prohibiting gun possession in or near schools and penalizing gender-motivated violence. In neither case could the activity be remotely considered ?economic? ? nor can the local marijuana possession at issue in Ashcroft v. Raich.

The importance of the case can be seen in the line-up of amicus briefs supporting Raich?s case. Noted conservative legal scholars, including former Reagan and Bush Assistant Attorney General Douglas Kmiec and former Bush solicitor general Charles Fried, signed or authored briefs urging the Court to recognize that federal power cannot reach this far. Several states have done the same. Few groups not directly involved in antidrug efforts have lined up on the Justice Department?s side.

Some drug warriors fear that a victory for Raich could hamper federal antidrug efforts because drug possession is much easier to prove than is the intent to distribute. Yet possession of small amounts of marijuana is rarely prosecuted under federal law as it is. State and local governments are responsible for most enforcement of low-level drug crimes. If petty possession needs to be prosecuted, it can be under state law. Just as the Supreme Court?s invalidation of the Gun Free School Zones Act did not produce a flood of firearms in the nation?s schools, striking down the application of federal law in this case won?t end marijuana prohibition. Even in California, marijuana possession for anything other than medical use remains illegal. If arrested, a medical-marijuana user bears the burden of proving that it was for medicinal use.

Alabama solicitor general Kevin Newsom filed a particularly powerful brief on behalf of several states with strong antidrug policies, maintaining that California?s medical-marijuana law poses no threat to those states, such as Alabama, where marijuana remains illegal. Alabama prosecutes drug crimes vigorously, including pot possession, and has some of the harshest drug-possession penalties in the country. Yet Alabama and other states intervened to ?support their neighbor?s prerogative in our federalist system to serve as ?laboratories for experimentation.?? While agreeing with drug prohibitionists that California?s medical-marijuana policy is ?profoundly misguided,? Alabama argued that upholding the federal prosecution of medical-marijuana users is a greater threat than letting sick people get high in California pursuant to a validly enacted state law.

From the earliest days of the Republic, the Supreme Court has emphasized that the Constitution creates a federal government of ?limited and enumerated powers.? There is no federal ?police power? authorizing Congress to cure every injustice or right every wrong. Rather, the federal government was entrusted with those limited and discrete powers necessary for national cohesion. Matters of truly national import ? matters that cannot be handled by state and local governments acting alone or in concert ? are entrusted to the federal government. As made explicit in the Constitution?s texts, all others powers remain in the hands of the states and the people.

Despite its apparent importance to drug warriors, Ashcroft v. Raich is not about medical marijuana or drug prohibition. Nor is it about the wisdom, or lack thereof, of allowing chronically ill individuals to smoke weed for medicinal purposes. Rather, it concerns the limits of federal power under the Constitution. Federalism does not play favorites. It limits the scope of federal power to pursue liberal and conservative ends alike. If a majority of the Court remembers this lesson, Angel Raich will get to keep her medicine. More important, the nation will keep the constitutional limits on federal power.

? Jonathan H. Adler is an associate professor and associate director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. He is an NRO contributing editor