A Limited What Now?

Anyone who favors even the least restriction on the powers of the federal government should be dismayed by the implications of this ruling handed down by the Supreme Court. Justices Scalia and Kennedy, in an apparent fit of federalism, decided that restraints on the federal government don’t apply when control of the demon weed marijuana is at stake. By ruling that the interstate commerce clause grants the federal government the blanket power to block the regulatory decisions of individual states, the Court has opened the door to a near-limitless federal power to control the choices of states and individuals.

Scalia, who has voted to curb federal power in the past, offers a tortured explanation for his vote. See, while marijuana might be being grown, processed, distributed, and consumed within a single state without crossing state lines it affects interstate commerce. Because someone might take some marijuana out of state and sell it. Or take the money they make selling weed and go to Vegas for the weekend. And clearly, existing laws that allow the government to regulate transactions that cross state lines and the local laws of other states aren’t adequate to handle complex situations like that. The only answer is to give the federal government the right to regulate and ban whatever it likes, on the grounds that someday it might cross state lines and fall under federal jurisdiction again.

Based on this charming logic, there is essentially nothing that the Constitution compels the federal government to keep its nose out of. Anything and everything, whether consumed and produced in a single state or not, has the potential to affect interstate commerce. The Courts present ruling is, as Justice O’Conner notes, “irreconcilable” with the Courts earlier decisions on the limits of federal power.

Drug Czar John Walters says: “We have a responsibility as a civilized society to ensure that the medicine Americans receive from their doctors is effective, safe and free from the pro-drug politics that are being promoted in America under the guise of medicine.” I say that we have a right and a responsibility to stop unreasonable fears about drugs from needlessly bloating the power of the federal government. Ever since the 1920’s, the moral panic crowd has been looking for an increasingly thin of rationales for banning marijuana. We can tax it, but not let anyone pay the tax so that no one can sell it. We’ll regulate it as a drug by saying that it has no medical use and thus is illegal (doesn’t that make it just ‘not a drug’? Cool-aid also has no medicinal use, and yet isn’t a schedule I narcotic). If a medical use is found, we’ll say that the federal government’s right to regulate things that might ‘affect’ interstate commerce trumps the right of local governments to establish their own criminal laws and health care policies.

Whether you think that marijuana is a dangerous drug or not, it’s clear that by continuing these expansions of federal power in order to keep it illegal, we’re solving a minor problem by creating a major one. Decisions like this one amount to poking holes in the Constitution.

Check out discussion of the decision at Salon here, and some possible better news for the drug policy reform movement here.

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