Medicinal Marijuana and the Commerce Clause

I didn't notice this ruling when it was issued: The Ninth Circuit Court of Appeals went against New Deal judicial precedent and found a limit on the power of Congress to regulate interstate commerce.

Now that the case is at the Supreme Court, it might result in an interesting ruling.

The justices may find a way to decide the case without reaffirming or overruling decisions from the New Deal era, but it's hard to imagine how they could do so.

Here's an excerpt from The New York Times that outlines the issues pretty well:

Supreme Court Hears Arguments on Medical Use of Marijuana
By LINDA GREENHOUSE
Published: November 29, 2004

The Ninth Circuit panel held that under the Supreme Court's recent federalism precedents, the noncommercial, intrastate activity in which the women were engaged did not fall within Congress's constitutional authority to regulate interstate commerce.

But illegal drugs are fungible and exist within a national market, Paul D. Clement, the acting solicitor general, told the Supreme Court in arguing the administration's appeal, Ashcroft v. Raich, No. 03-1454. "What we're talking about here is the possession, manufacture and distribution of a valuable commodity for which there is, unfortunately, a ready market," he said.

Mr. Clement asserted that Supreme Court precedents dating to the New Deal made clear that "the relevant focal point is not the individual plaintiff's activities" but rather the impact on the economy of an entire category of activity, taken as a whole, that Congress has chosen to regulate.

In fact, much of the debate in the courtroom today centered on one particular precedent, Wickard v. Filburn, a decision from 1942 that upheld Congress's effort to support wheat prices by controlling wheat production. The court held that even the wheat that a farmer cultivated for home consumption could be regulated under the Agricultural Adjustment Act's quota system on the theory that all wheat production took place within a national market. That decision is regarded one of the most far-reaching extensions of Congressional power that the Supreme Court has ever upheld.

Ironically, Legal Fiction suggests that the federal prohibition of the use of home-grown marijuana for medicinal purposes will be one of the first cases in which conservative Republican judicial appointees will begin their assault on the New Deal era's expansion of federal power. If that idea is correct, then it seems the liberal, activist judges of the Ninth Circuit Court of Appeals have fired the first shot in that assault -- by holding that the prohibition is an unconstitutional overreaching as it applies to such marijuana use.