Angel Raich v. Ashcroft News

[Lilli]

Off The Interstate
Posted by CN Staff on December 21, 2004 at 22:14:06 PT
By Mark Moller
Source: Cato Institute

In Ashcroft v. Raich, the Supreme Court will decide a lawsuit brought by a pair of very sick California women, Angel Raich and Diane Monson. Both grow an unusual medicine in their back yards: marijuana. Under California law, the drug is legal under doctor's orders. Even so, the Department of Justice says federal agents can prosecute both women.
To preserve their access to needed medicine, Raich and Monson challenged the U.S. Attorney General in court. Their basis for doing so was the Constitution's Commerce Clause, which says government can regulate "interstate" commerce.

According to Raich and Monson, their drug is grown at home for personal consumption. It's lawful under California law. And it's not sold to persons outside the state. So they argue it's not "interstate" commerce that the federal government can regulate.

The case has provoked a panic attack among some liberals. The New York Times, for example, suggests the Commerce Clause argument could play into the hands of "conservatives," who want to squash government power.

But that objection is short-sighted: Ashcroft v. Raich is not just about limited government. It's also about political accountability, which should be dear to conservatives and liberals: That principle, after all, is advocated by liberal law scholar Cass Sunstein, who argues the Constitution is designed to promote "careful," "thoughtful" (and hence "accountable") government action.

At a minimum, "accountability" means acting on "evidence" -- in this case, that there's an "interstate" problem for the feds to address. That's something the government hasn't tried to prove. As a number of briefs before the Supreme Court observe, the Bush administration offers "nothing in the way of evidence" that medical marijuana is of national, as opposed to local, concern.

There's no excuse for this lapse of proof. California's law is hardly a self-evident threat to anyone. Ronald Reagan's top constitutional lawyer, Douglas Kmiec, characterizes the law as "circumspect." For persons with dire medical conditions, it may be too circumspect. It doesn't "legalize" medical marijuana -- in the sense you could buy it at a drug store.

According to California courts, it doesn't even necessarily save sick persons from arrest. In most parts of California, where there's no registry of ill persons needing marijuana, the law merely gives patients a chance to persuade a jury that a doctor approved its use after they've been hauled into court.

There's no evidence the law will stymie other states' drug policies. That's common sense: Interstate drug trafficking (and California drug trafficking, for that matter) remains illegal, subject to interdiction and prosecution.

There's also no reason to think the law will frustrate California police. True, officers must sort sick persons from recreational users. But that's what police do all the time: as when Florida officials investigated Rush Limbaugh for using black market Oxycontin (it's legal under doctor's orders.) Given that chemotherapy and advanced AIDS patients benefit most from medical marijuana, it's laughable to think state agents will be so easily confounded.

Indeed, it would have been surprising if the federal government offered proof to the contrary: The Constitution gives states, not the federal government, "primary" control over criminal law enforcement -- power they have exercised without controversy for two centuries. Criminal law is an area of special state expertise.

All these considerations make this case the easiest of calls. In his brief before the Supreme Court, Professor Kmiec stressed that the Commerce Clause serves a distinct purpose -- it's a safety hatch when states are "incompetent" to protect national interests. In a famous court argument, the legendary Daniel Webster added that the feds must demonstrate that purpose -- by showing a need to stop one state from harming another's citizens.

Faced with a moderate law, and no proof there's an interstate problem, the case boils down to this: Can federal officials butt into local affairs without showing they're needed or wanted at the local level?

Under a Constitution that prizes thoughtful government action, respect for individual liberty, and deference to state policy, the answer shouldn't be hard, even for the New York Times. It is, in a word, "no."

Note: Mark Moller is a senior fellow in constitutional studies at the Cato Institute, and editor-in-chief of the Cato Supreme Court Review. He co-authored a friend-of-the-court brief in Ashcroft v. Raich. -- http://www.cato.org/people/moller.html

Source: Cato Institute (DC)
Author: Mark Moller
Published: December 22, 2004
Copyright: 2004 Cato Institute
Contact: jblock@cato.org
Website: http://www.cato.org/

Related Articles & Web Site:

Angel Raich v. Ashcroft News
http://freedomtoexhale.com/raich.htm

Cannabis and The Constitution
http://cannabisnews.com/news/thread20027.shtml

High Court -- High Anxiety
http://cannabisnews.com/news/thread19935.shtml
_________________

I pass to you the torch that Christ once passed to me.
Others are still in the dark and need
the light to see.
"I AM"
"Gathering the fragments so that
none are lost"
His Shepherdess
http://missouri.thcministry.org/