Growing Outrage

The DEA's medical marijuana raids show contempt for the Constitution.


Today the House of Representatives rejected an amendment aimed at stopping federal raids on patients who use marijuana and people who provide it to them in states that recognize the drug as a medicine. Sponsored by Reps. Maurice Hinchey (D-N.Y.) and Dana Rohrabacher (R.-Calif.), the amendment would have forbidden the Justice Department (which includes the Drug Enforcement Administration) from spending money to tear up plants, close down clubs, or arrest patients or providers.

The amendment was defeated by a vote of 273 to 152, which is closer than might have been expected. The vote in favor of a 1998 House resolution condemning state medical marijuana laws was 310 to 93. It looks like supporters of the Hinchey/Rohrabacher amendment were right in thinking that five years of watching the DEA's cruel and senseless campaign against medical marijuana had changed some minds on Capitol Hill. "Given the growing outrage over the DEA's raids on patients and caregivers in California," Steve Fox of the Marijuana Policy Project said before the vote, "we expect it to be much closer this time."

There is another way to look at this amendment: not as an endorsement of medical marijuana or an expression of sympathy for patients who use it to make their lives more bearable, but as a modest step toward enforcing the Constitution. Strictly speaking, the amendment was redundant, since the Constitution does not authorize the DEA's raids on medical marijuana users and growers.

Consider Ed Rosenthal, who grew marijuana in Oakland for patients in the Bay Area who were permitted to use it under state law. The pot never left California, so it's hard to see why it's the federal government's business. Yet Rosenthal was arrested by the DEA and tried in federal court. Convicted on marijuana cultivation charges, he could have gotten five years or more in federal prison but was sentenced to time served (one day) by U.S. District Court Judge Charles Breyer, who turned out to be more sympathetic than he initially seemed.

The Justice Department is appealing the sentence, arguing that Breyer impermissibly departed from what should have been the mandatory minimum. Rosenthal, for his part, is appealing the conviction. One of his arguments is that the Commerce Clause, which gives Congress the authority to "regulate Commerce…among the several States," cannot be stretched to cover his purely local activities.

The Wo/Men's Alliance for Medical Marijuana, which ran a pot farm 15 miles north of Santa Cruz that the DEA raided in September, makes a similar argument in a federal lawsuit filed last April. The suit, which has been joined by the city and county of Santa Cruz, seeks a court order that would keep the DEA away from patients' plants.

The Commerce Clause argument is not a plea for mercy: Have pity on the poor patients! It's a demand: Mind your own business! Under the federal system created by the Constitution, a state can make marijuana legal for medical purposes, or for any purpose at all, and the national government has no authority to negate that decision. Even for opponents of the war on drugs who have their doubts about the medical marijuana movement, this is a principle worth fighting for. Substantial changes in the drug laws are most likely to come at the state level, but only if the federal government decides to step back and respect the Constitution.

This argument looks like a winner—but only if you don't realize how elastic the Commerce Clause has become in the Supreme Court's hands since the New Deal. In a notorious 1942 case, for instance, the Court ruled that the Commerce Clause allowed the federal government to stop a farmer from growing wheat on his own land even if he never sold it. By growing what he otherwise would have purchased, the Court reasoned, he affected the demand for wheat, thereby implicating interstate commerce, since wheat is bought and sold between states. If the Commerce Clause covers wheat grown for home consumption, surely it covers weed grown for local consumption.

Then again, in recent years the Court has rediscovered limits to the Commerce Clause. If the clause does not authorize Congress to ban gun possession near a school, can it possibly authorize Congress to ban marijuana possession everywhere?

Whatever the Supreme Court might decide, members of Congress have a duty to stop the federal government from overstepping its proper bounds. Today's vote was an opportunity to do that. You can judge your representative's respect for the Constitution by how he responded.