If You Demand a Good, Progressive Commerce Clause, You Also Get a Bad, Reactionary Commerce Clause
I recently finished reading Smoke Signals, a new "social history of marijuana" by Martin A. Lee. By and large, it is what you would expect from the co-author of the fine LSD history Acid Dreams: engaging and full of interesting details, even for people familiar with the subject. But some of Lee's legal analysis is a bit shaky. I was particularly struck by this passage on Gonzales v. Raich, the 2005 case in which the Supreme Court ruled that the federal government's power to regulate interstate commerce extends even to homegrown marijuana used by patients in states that recognize the plant as a medicine:
[Angel] Raich's attorneys framed the case in terms of states' rights and tailored their arguments to appeal to conservatives. Her legal team (which included her husband, Robert Raich) made a strategic decision to emphasize the Commerce Clause rather than other crucial issues such as medical necessity or the right to life. Federal drug laws are rooted in the Commerce Clause, which empowers Congress to regulate interstate commerce. This provision once served as an important tool for promoting progressive federal policies from the New Deal to Civil Rights, but over the years it became an all-purpose excuse for Congress to meddle in virtually every aspect of human behavior.
As much as Lee might wish otherwise, he is not describing two different legal trends. The Commerce Clause "became an all-purpose excuse for Congress to meddle in virtually every aspect of human behavior" because it "served as an important tool for promoting progressive federal policies from the New Deal to Civil Rights." If the Commerce Clause authorizes the federal government to punish a farmer for growing too much wheat, even when the extra grain never leaves his farm (as the Supreme Court held in the New Deal case Wickard v. Filburn), it is hard to see why it does not authorize the federal government to punish patients for growing and possessing marijuana, even when the drug never leaves the state. If, as the Civil Rights Act of 1964 asserted, Congress can regulate any restaurant, cafeteria, lunchroom, lunch counter, or soda fountain when "its operations affect commerce" (e.g., when an Alabama diner uses Idaho potatoes to make French fries), surely the feds can shut down medical marijuana dispensaries, even when their activities are purely local and authorized by state law.
Likewise, if the U.S. Justice Department can prosecute hate crimes based on the defendant's use of a weapon made in another state, almost any offense, including some that progressives might prefer not be treated as crimes at all (assisting suicide, say), can become a federal case. Defending the Patient Protection and Affordable Care Act, the Obama administration argued (unsuccessfully) that Congress may force people to buy government-approved medical coverage because their failure to do so, taken in the aggregate, has a substantial effect on the national health care market. That theory sounds very much like "an all-purpose excuse for Congress to meddle in virtually every aspect of human behavior."
The point is that a federal government big and powerful enough to achieve progressive goals is also big and powerful enough to undermine them. If you endorse an absurdly broad reading of congressional power to justify policies you like, you should not be surprised when that same rationale is used to justify policies you hate. Conversely, as I argued in the July issue of Reason, respecting constitutional limits on federal power may mean giving up on achieving certain progressive goals at the national level, but it opens up a wide space for achieving them at the state and local level.