The National Pulse

Flip Sides


That’s what happens when law and order clashes with federalism the principle of how far Congress can go to impose federal laws on the states.

Indeed, this term’s most revealing federalism dispute features prominent conservative legal academics lining up to support California marijuana users and to oppose Attor­ney General John Ashcroft and the war on drugs. The law professors are certainly not touting the virtues of marijuana. Rather, they say, the Supreme Court must limit the reach of federal power, even when U.S. authorities are pursuing causes that many conservatives endorse.

“This is a real test of federalism,” says Pepperdine Uni­ver­sity law professor Douglas Kmiec, a former Reagan administration lawyer who wrote an amicus brief on behalf of the libertarian Cato Institute supporting the marijuana users. “For too many, [federalism] has been a doctrine of convenience. The test here is whether federalism is a principle that decides cases, whether or not you agree with the underlying issue.”

Led by Chief Justice William H. Rehnquist, the court over the past decade has limited Congress’ power under the commerce clause. In 1995, the high court struck down a federal law that made it a crime to have a gun in a school zone. U.S. v. Lopez, 514 U.S. 549. In 2000, it voided a wom­en’s rights measure that authorized victims of sexual assaults to sue in federal court. U.S. v. Morrison, 529 U.S. 598.

In both instances, the chief justice spoke for a conservative 5-4 majority in saying the Constitution’s commerce power cannot be stretched so far. Neither gun possession nor sexual assaults were commercial acts, he said. “There will never be a distinction between what is truly national and what is truly local,” Rehnquist said, if Congress’ power over commerce has no limits.

It was noted at the time that liberals, not conservatives, had championed the gun control law struck down in Lopez and the Violence Against Women Act that was partly voided by Morrison.

Now, the court is facing the same issue of limiting federal power and protecting states’ rights, but with the ideological tables turned.

Trafficking or Treatment?

In 1996, California voters passed the Compas­sion­ate Use Act to “ensure that seriously ill Califor­nians have the right to obtain and use marijuana for medical purposes.” The Justice Depart­ment has maintained this law is all but void, since federal drug laws make it illegal even to possess a controlled substance such as marijuana.

Two women who rely on homegrown marijuana to relieve their pain and nausea sued Ashcroft, seeking an injunction to bar further federal raids on their homes and gardens. The lead plaintiff, Angel Raich, has an inoperable brain tumor, severe seizures and a wasting disorder. She and her doctor say marijuana has provided the only effective relief from her pain, and she grows it with the help of two friends. Her husband, Oakland attorney Robert Raich, has been a leading defender of the California law, and he argued that federal agents had exceeded their constitutional authority when they raided the home of the plaintiffs.

“It is pretty farfetched to say this involves interstate com­merce. There is no commerce and no interstate activity,” Robert Raich said.

Last year, a panel of the San Francisco-based 9th U.S. Circuit Court of Appeals agreed and cited Rehnquist’s opinion in Lopez. “The intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician is different in kind from drug trafficking,” the 9th Circuit said.

In its appeal, the Justice Department argues that Angel Raich’s homegrown marijuana is essentially the same as Roscoe Filburn’s homegrown wheat in the famous case of Wickard v. Filburn, 317 U.S. 111 (1942). In that case, the court upheld the New Deal’s regulation of agriculture, even for farmers like Filburn who grew his wheat for use on his own farm.

“In both cases,” says Act­ing Solicitor General Paul Clem­­ent, “the regulated individuals are producing a fungible commodity for which there is an established market,” albeit an illegal one for marijuana.

But Kmiec, the former Reagan administration lawyer, notes that farmers are involved in a commercial activity, unlike Angel Raich. Moreover, the principle of federalism cautions against overreaching by the national government. “Conservatives have long said that matters of morality and criminal justice are better addressed at the state and local level. It is a not a matter of tolerating bad behavior. It is rather a belief that crimes can be better prosecuted at the state level,” Kmiec says.

Of course, California and eight other states have decided against prosecuting sick people who use marijuana for medical purposes.

Besides Kmiec, the conservative academics supporting the marijuana users include Harvard law professor Charles Fried, the Reagan administration’s U.S. solicitor general; Northwestern law professor Steven Calabresi, a founder of the Federalist Society; and the University of Chicago’s Richard Epstein, a leading academic advocate of property rights. But it is not a one-way street. Community Rights Coun­sel, a Washington, D.C.-based pro-environment group, filed a brief on Ashcroft’s side, arguing that the broad federal authority should be upheld.

Chief counsel Timothy Dowling says the group fears a cutback on the commerce clause, which provides authority for federal environmental laws, among others. “We were concerned about the arguments put forth in this case that would have the court drastically cut back on the commerce clause. We were interested in ensuring stability in the law in this area,” Dowling says.

The medical marijuana issue is not the only one that may cause some conservatives to question the virtues of federalism. In October, the Atlanta-based 11th U.S. Circuit Court of Appeals threw out a federal child pornography charge against a Florida man who was found to possess obscene photos stored on a computer disk. There was no evidence he bought or sold the images, or obtained them from outside of Florida, the appeals court said. Therefore, prosecuting him based “on the facts of this case amounts to an unconstitutional exercise of the commerce clause,” it concluded in U.S. v. Maxwell, No. 03-14326.

Federalism has also stood in the way of Ash­croft’s campaign against physician-assisted suicides. In May, the 9th Cir­cuit ruled that Oregon state officials, not the U.S. attorney general, have the final word on whether doc­tors may prescribe med­ication that will permit terminally ill people to end their lives. Oregon v. Ashcroft, 368 F. 3d 1118. The ruling upholds Or­e­­gon’s Death with Dignity Act, which like the California medical marijuana measure, was passed by the voters.

A Second Test

By coincidence, the court will hear a second case testing the commerce clause in its argument session between Thanksgiving and Christmas, this one to decide whether states may continue to ban the direct shipment of wine to consumers.

The usual rule is that states may not discriminate against the free flow of interstate commerce or protect their own producers against outside competition. Michigan and New York certainly protect their in-state wineries. In Michigan, wineries may ship their bottles directly to in-state customers. But these same Michigan wine-lovers may not order bottles directly from wineries in California or Oregon. Similarly, New York does not allow out-of-state wineries to ship wine to New Yorkers, unless they are willing to open an office or store somewhere in the Empire State.

But the state attorneys in Michigan and New York have a strong argument on their side. They say the 21st Amend­ment, which repealed national Prohibition, gave them the power to stop the flow of alcohol at their borders. It says the “transportation or importation into any state … of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

Two lower courts have taken opposite views on this issue in the past year, and the court in December will hear the case of Granholm v. Heald, No. 03-1116, to decide whether there is indeed an alcohol exception to the commerce clause.

However, the answer will come too late to help those holiday shoppers who like to send gift boxes with more than fruit and cheese.


David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.


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