Pot Luck

It turns out Randy Barnett was right in predicting that the U.S. Court of Appeals for the 9th Circuit would be receptive to his argument that the medical use of marijuana is outside the scope of Congress's authority to regulate interstate commerce. Yesterday the court ruled that the Controlled Substances Act "is likely unconstitutional" as applied to Barnett's clients, two patients who use marijuana to relieve their symptoms.

One of the plaintiffs grows her own marijuana, while the other relies on friends who grow it for her. The 9th Circuit concluded that "the cultivation, possession and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity." It also noted that any impact on interstate commerce would be "attenuated." Hence it ruled that a district court judge should have granted the plaintiffs' request for a preliminary injunction barring the Justice Department from raiding or prosecuting them, since "the appellants have made a strong showing of the likelihood of success on the merits of their case."

This is the third time this year that the 9th Circuit has built upon the 1995 Supreme Court decision in United States v. Lopez to set limits on federal power under the Commerce Clause. Each ruling has been quite modest. The first involved child pornography that was never bought, sold, or exchanged; the second dealt with possession of a homemade machine gun; and yesterday's ruling is limited to noncommercial cultivation of marijuana for medical use (legal under California's Proposition 215). But taken together, these decisions help revive the idea that the Commerce Clause is not a blank check. And as Barnett notes, they show that "federalism is not just for political conservatives."