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Archive for June, 2005

Another Nail in Federalism’s Coffin

June 6th, 2005 by Ian

In a 6-3 decision the Supreme Court today ruled in favor of the federal government in Gonzales v. Raich, opening the door for federal prosecution of medical marijuana patients.

The majority’s opinion was based upon the despicable Wickard v. Filburn case of 1942, where the Supreme Court determined that any product which could potentially affect national markets automatically qualifies as a component of “Commerce […] among the several states,” thus subjecting it to the rule of Congress. This is despite the fact that the Filburn, the farmer who the federal government was prosecuting, was growing wheat which was to only be used on his own farm. Since there is a national market for marijuana, the court has essentially ruled that the (unconstitutional-yet-ruled-constitutional) Controlled Substances Act of 1970 takes precedence over any state laws which may legalize marijuana. The dissenters (led by O’Conner who is joined by the sensible Thomas and ailing Rhenquist) make a good yet hopeless case. Says Thomas:

Respondents Diane Monson and Angel Raich 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. 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.

Do you want to eat vegetables which are grown on your own property? According to the majority, that’s actually Bill Frist and Ted Kennedy’s decision to make. Congress can pass a law that would make it illegal for you to eat your own vegetables… and the Supreme Court would regard it as being perfectly constitutional. Why? Because by eating your own vegetables you are potentially not purchasing vegetables produced in another state. Thanks, Wickard.

Perhaps most distressing is Scalia’s opinion on the matter. Scalia has apparently decided that that whole “federalism” kick he was on is a dying fad and, in accordance with the Republican Party’s utter rejection of small government principles and state’s rights, consequently decided that this is indeed the federal government’s jurisdiction. He says in his concurrence that

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so ‘could … undercut’ its regulation of interstate commerce.

The terrible thing is that the majority is essentially right in being wrong in this case. Wickard has acted as a strong precedent for other horrible rulings in the past, and there’s no particuarly reason why this case should change anything. Thomas is 100% right that Wickard, Lopez, and now Raich give Congress unlimited power to overturn state law at will.

There is now almost no question that Oregon’s Death With Dignity act will soon be nullified by the Supreme Court. To rule in favor of the government in Raich yet rule in favor of Oregon in Gonzales v. Oregon would be the height of hypocrisy by the court. It is a sad day when the only hope democratic rule has is through an act of judicial activism. Ashcroft and Gonzales’ whim will undoubtably take precedence over the wishes of Oregon voters.

Volokh and SCOTUSblog both have good analyses of the decision.

UPDATE: As does The Agitator, which points out that Thomas is now the only real federalist still on the Supreme Court. Criticism towards former-strict constructionalist Scalia is also rampant, although Sam Bagenstos leaps to his defense. The excellent Hit and Run sums the case up nicely: “This is a major fuck you to sick people who are in pain.”

Don Goldman … Potential Thief?

June 1st, 2005 by Tyler

I’m not sure. All I know is that Ian and I were in the office at approximately 9:00 pm when Don Goldman came by our office with a dolly. He saw us, took one issue of the magazine, then wrote a snide comment on one of the new boxes of issues we just had delivered to our door. He left with his empty dolly.

Now, does that strike anybody else as strange? Why would Don Goldman come to our office at night with a hand truck? Well, maybe I’m just paranoid … in any case, the issues are now safely inside.