Commerce Clause Use and Abuse


Today the Supreme Court will hear arguments in Ashcroft v. Raich, the case that asks whether growing marijuana for your own medical use is close enough to interstate commerce to justify federal intervention. In addition to indicating whether states will be allowed to experiment with new drug policies, the outcome will signal how serious the Court is about enforcing the distinction between state and federal powers. Peter Guither at DrugWarRant has a handy guide to the case.

It would be nice if the Court took this opportunity to renounce the "substantial effects" doctrine, which allows almost anything to be regulated as interstate commerce and has been the main constitutional excuse for expanding the federal government's scope since the New Deal. That is the course urged by the Institute for Justice in its amicus brief (and endorsed by Justice Clarence Thomas in recent Commerce Clause decisions). But it's more likely that the Court will find a way to distinguish homegrown marijuana from homegrown wheat, the focus of the 1942 case that exemplifies this broad reading of the Commerce Clause.

The respondents and several of their supporters note that Roscoe Filburn, the farmer who violated the crop quotas at the center of that case, was undeniably engaged in a commercial operation; that he sold some of his wheat; and that most of the balance was used as feed for cattle or as seed for the following year (i.e., for commercial purposes). They also note that in the aggregate, the amount of wheat consumed on farms represented a substantial share of total production, whereas marijuana used as medicine is a tiny fraction of the total market for cannabis. So despite my initial skepticism that a plausible line could be drawn between the two cases, I have to admit it can be done. And certainly that outcome would be preferable to an understanding of interstate commerce that includes a few marijuana plants on a cancer patient's patio.

The Los Angeles Times ran a story yesterday that noted the conflicts among conservatives highlighted by Raich and by the two cases involving bans on interstate wine shipments that the Court will consider next week. Last month I suggested that, taken together, the wine and marijuana cases illustrate the right and the wrong way to use the Commerce Clause. I suppose the social conservatives who side with a strong central government when it comes to preventing marijuana use and with state governments when it comes to obstructing the trade in alcoholic beverages would agree with me.