Pubdate: Fri, 19 Dec 2003
Source: Reason Online (US Web)
Copyright: 2003 The Reason Foundation
Contact:  http://www.reason.com/
Details: http://www.mapinc.org/media/2688
Author: Jacob Sullum
Note: Jacob Sullum is Reason senior editor and the author of Saying Yes: In
Defense of Drug Use (Tarcher/Putnam).

POT LUCK

A Victory For Federalism

Roscoe Filburn and Diane Monson both got into trouble with the federal 
government because of plants they grew. The future size and shape of that 
government hinges on whether those plants were any of its business, and, if 
so, why. Filburn, an Ohio farmer, grew 23 acres of wheat, 12 more than he 
was allowed under the Agricultural Adjustment Act. Most of it stayed on his 
farm, where he milled it into flour for his family, fed it to his 
livestock, and used it to plant the next year's crop. In 1941 Secretary of 
Agriculture Claude Wickard fined Filburn for his excessive self-reliance.

Monson, a California office manager and bookkeeper, grew six marijuana 
plants, six more than she was allowed under the Controlled Substances Act. 
She planned to use the cannabis to relieve severe back pain and muscle 
spasms caused by a degenerative spine disease, as permitted under 
California's Compassionate Use Act. In 2002 agents of the Drug Enforcement 
Administration raided her home and seized the plants.

Filburn challenged Wickard's penalty in federal court, arguing that the 
Constitution did not give the federal government the authority to tell him 
how much wheat he could grow on his own land for his own use. The Supreme 
Court disagreed, saying Congress was legitimately exercising its power to 
regulate interstate commerce.

After all, Filburn might decide to sell the wheat, and even if he didn't, 
he reduced overall demand by growing his own. In the aggregate, the Court 
reasoned, growing wheat for home consumption could have "a substantial 
economic effect on interstate commerce."

For more than half a century Congress has used this expansive reading of 
the Commerce Clause as a license to legislate on just about any subject it 
likes, gradually erasing the crucial constitutional distinction between 
state and federal powers. Only recently has the Court begun to suggest that 
the Commerce Clause is not infinitely elastic, and it still has not 
revisited Wickard v. Filburn. So when Diane Monson and another medical 
marijuana user, Angel McClary Raich, sought an injunction to prevent the 
DEA from seizing their cannabis or arresting them, they had to convince a 
federal court that their situation was different from Roscoe Filburn's in a 
way that mattered. In a case that suggests both the promise and the limits 
of the Supreme Court's recent Commerce Clause decisions, they succeeded.

On December 16, the U.S. Court of Appeals for the 9th Circuit ruled that 
the Controlled Substances Act "is likely unconstitutional" as applied to 
Monson and Raich, overturning a district court's refusal to grant them a 
preliminary injunction. The 9th Circuit concluded that growing marijuana 
(or obtaining it for free from others, as Raich does) for one's own medical 
use "is not properly characterized as commercial or economic activity." It 
added that any impact on interstate commerce would be "attenuated."

This is the third case this year in which the 9th Circuit has tried to 
define the boundaries of the Commerce Clause. Each decision has been 
narrow: The first involved child pornography that never crossed state lines 
and was not intended for distribution; the second dealt with homemade 
machine guns that met the same criteria; and the most recent one is limited 
to "the intrastate, noncommercial cultivation and possession of cannabis 
for personal medical purposes as recommended by a patient's physician 
pursuant to valid California state law." But taken together, these rulings 
help revive the idea that the Commerce Clause is not a blank check. They 
also show that "federalism is not just for political conservatives," as 
Monson and Raich's attorney, Boston University law professor Randy Barnett, 
put it. At the same time, the cases show how tricky it is to enforce limits 
on federal power without reconsidering the "substantial effects" doctrine 
exemplified by Wickard.

The dissenting judge in Monson and Raich's case argued that growing 
marijuana for your own medical use is no less "economic" or "commercial" 
than growing wheat to feed your family. He has a point. Like Filburn's 
wheat, Monson's marijuana could be sold, and in any case growing your own 
medical marijuana affects the overall demand for cannabis (and possibly for 
pharmaceutical substitutes).

The constitutional argument for letting the DEA seize Monson's marijuana is 
ridiculous, but it's not indisputably more ridiculous than the 
constitutional argument for letting the Department of Agriculture fine 
Filburn. When the law is a joke, it's hard to predict which arguments the 
courts will take seriously.
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MAP posted-by: Keith Brilhart