HTTP/1.0 200 OK Content-Type: text/html Pot and Federal Power
Pubdate: Wed, 01 Dec 2004
Source: Washington Post (DC)
Page: A24
Copyright: 2004 The Washington Post Company
Bookmark: (Cannabis - Medicinal)


THE FEDERAL government's crusade against users of "medical marijuana," even 
in states that allow sick people to have the drug, is obnoxious.

But a case argued before the Supreme Court on Monday is only superficially 
about pot and illness.

At a deeper level, it is the latest test of Congress's power to regulate 
interstate commerce, the constitutional authority that underlies the modern 
regulatory state.

While it would be satisfying to see the court bat down the Justice 
Department's heavy-handed tactics, such a holding could be dangerous to 
civil rights enforcement, environmental protection and more.

Since the New Deal era, the Supreme Court has construed the Constitution's 
commerce clause broadly.

Without such an understanding, Congress would have been unable to make 
federal laws requiring a minimum wage, protecting wetlands and prohibiting 
racial discrimination in private employment, to name a few examples.

Recently the court began making clear that the authority is limited to 
issues that really have something to do with economics; so, for example, 
gun possession close to schools and sexual violence can't be regulated 
under the commerce clause.

We sympathize with the notion of limits, without which Congress could make 
law on any subject it wished -- not what the framers of the Constitution 
envisioned. But limit the power too much, and Congress will be left without 
adequate tools to legislate in a modern country.

The current case is an excellent illustration.

Federal drug laws unquestionably regulate interstate commercial activity; 
that is, the market for illicit drugs.

But the plaintiffs in this case, patients who say that no other drug 
alleviates their pain, argue that such laws also criminalize noneconomic 
activity -- the growing and use of marijuana within a single state for 
personal, medical, noncommercial purposes. The plaintiffs consequently 
convinced the U.S. Court of Appeals for the 9th Circuit to block any 
enforcement against them by the federal government.

This reasoning may sound attractive, but don't be fooled.

The court long ago held that a farmer who grew wheat for his own 
consumption could not escape farm laws passed under the commerce clause.

To hold otherwise for drugs would be deeply destabilizing. Some endangered 
species protected by federal law, for example, exist only in a single state 
and can be threatened by noneconomic activities. The Supreme Court can't 
allow people to violate otherwise valid regulations because their specific 
violations are not economic in nature.

We think Attorney General John D. Ashcroft ought to find better ways to 
spend his time and the nation's resources.

But where Congress is regulating genuine commercial activity, such as the 
interstate market for marijuana, the court's deference to it should be 
nearly absolute. 
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