This was the latest, (but not the only one):
How is growing marijuana in your back yard for private consumption "interstate commerce"?
answers.yahoo.com
Raich v. Ashcroft
"In Raich, the federal government has essentially claimed that as long as the activity is related in some way to other activities that are part of interstate commerce, then Congress has the power to determine the bounds of any subclasses at its own whim. This is an extraordinarily broad definition and would essentially give Congress unlimited power to determine the degree to which it can interfere in state law."
drugwarrant.com
Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), was decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal purposes.
...Partnership for a Drug-Free America, several other anti-drug organizations,[1] alliance of seven congressmen including Mark Souder and Katherine Harris filed amicus brief for the side of federal government.[2] The environmentalist group Community Rights Council also filed a brief for the government, fearing limitation of federal power would undermine their agenda.[3]
The Cato Institute,[4] Institute for Justice,[5] many libertarian organizations, and NORML, along with other groups opposing the War on Drugs, filed briefs for Raich and Monson. The governments of California, Maryland, and Washington also filed briefs supporting Raich. The attorneys general of Alabama, Louisiana, and Mississippi, three strongly anti-drug states from the usually conservative South, filed a brief supporting Raich on the grounds of states' rights.[6]
Justice Thomas also wrote a separate dissent, stating in part:
“Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States."
Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.”
and
“If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce." ”
and further:
“If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."[9]
en.wikipedia.org
"This argument stems from the landmark New Deal case Wickard v. Filburn, which held that the government may regulate personal cultivation and consumption of crops, due to the effect of that consumption on interstate commerce, however minute it may be."
en.wikipedia.org
---------------------------------------------
Judicial Activism, Marijuana and the Interstate Commerce Clause
13 June 2005
Thomas Sowell
capitalismmagazine.com
The question before the Supreme Court was not whether allowing the medicinal use of marijuana was a good policy or a bad policy. The legal question was whether Congress had the authority under the Constitution to regulate something that happened entirely within the boundaries of a given state.
The Supreme Court's recent decision saying that the federal government can prosecute those using marijuana for medical purposes, even when state laws permit such use, has been seen by many as an issue of being for or against marijuana. But the real significance of this decision has little to do with marijuana and everything to do with the kind of government that we, our children, and our children's children are going to live under.
The 10th Amendment to the Constitution says that all powers not granted to the federal government belong to the states or to the people.
Those who wrote the Constitution clearly understood that power is dangerous and needs to be limited by being separated -- separated not only into the three branches of the national government but also separated as between the whole national government, on the one hand, and the states and the people on the other.
Too many people today judge court decisions by whether the court is "for" or "against" this or that policy. It is not the court's job to be for or against any policy but to apply the law.
The question before the Supreme Court was not whether allowing the medicinal use of marijuana was a good policy or a bad policy. The legal question was whether Congress had the authority under the Constitution to regulate something that happened entirely within the boundaries of a given state.
For decades, judges have allowed the federal government to expand its powers by saying that it was authorized by the Constitution to regulate "interstate commerce." But how can something that happens entirely within the borders of one state be called "interstate commerce"?
Back in 1942, the Supreme Court authorized the vastly expanded powers of the federal government under Franklin D. Roosevelt's administration by declaring that a man who grew food for himself on his own land was somehow "affecting" prices of goods in interstate commerce and so the federal government had a right to regulate him.
Stretching and straining the law this way means that anything the federal government wants to do can be given the magic label "interstate commerce" -- and the limits on federal power under the 10th Amendment vanish into thin air.
Judicial activists love to believe that they can apply the law in a "nuanced" way, allowing the federal government to regulate some activities that do not cross state lines but not others. The problem is that Justice Sandra Day O'Connor's nuances are different from Justice Antonin Scalia's nuances -- not only in the medical marijuana case but in numerous other cases.
Courts that go in for nuanced applications of the law can produce a lot of 5 to 4 decisions, with different coalitions of Justices voting for and against different parts of the same decision.
A much bigger and more fundamental problem is that millions of ordinary citizens, without legal training, have a hard time figuring out when they are or are not breaking the law. Nuanced courts, instead of drawing a line in the sand, spread a lot of fog across the landscape.
Justice Clarence Thomas cut through that fog in his dissent when he said that the people involved in this case "use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana."
Instead of going in for fashionable "nuance" talk, Justice Thomas drew a line in the sand: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the Federal Government is no longer one of limited and enumerated powers."
In short, the kinds of limitations on the power of the national government created by the Constitution are being nuanced out of existence by the courts.
Ironically, this decision was announced during the same week when Janice Rogers Brown was confirmed to the Circuit Court of Appeals. One of the complaints against her was that she had criticized the 1942 decision expanding the meaning of "interstate commerce." In other words, her position on this was the same as that of Clarence Thomas -- and both are anathema to liberals.
-----------------------------------------------
What Was Scalia Thinking?
by Mark Moller
Mark Moller is the editor-in-chief of the Cato Supreme Court Review.
Added to cato.org on June 15, 2005
This article appeared in Reason.com on June 14, 2005.
The verdict in Gonzales v. Raich last week was a stunning victory for federal power, and it came with an unusual endorsement. The Court upheld Drug Enforcement Agency prosecution of sick women who use medical marijuana to treat symptoms of their illnesses. Siding with the DEA, six justices held that the Commerce Clause of the U.S. Constitution (which gives the federal government the power to "regulate Commerce...among the several States") allows Washington, D.C. to regulate purely local conduct when that activity is targeted as part of a "comprehensive" scheme of regulations. The Court held that it's irrelevant if the regulated activity is confined to just one state.
What baffled many conservatives was the concurring opinion by one Antonin Scalia, who sided with big government against a sane interpretation of the Commerce Clause. It was a surprising vote for the justice who once edited the deregulation-inclined Regulation Magazine (now published by the Cato Institute....
cato.org
=====================================================
(In short, Bill, if this "everything under the Sun falls under federal power" interpretation and expansion of the 'commerce clause' stands... then the feds can regulate or mandate any damn thing that they want to... including the insurance markets, which are obviously even more implicated in 'inter state commerce'.) |
