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Blame the Supreme Court for Letting the Feds Target Legal State Pot

The awful precedents that helped empower Attorney General Jeff Sessions

Gage Skidmore / Flickr.comGage Skidmore / Flickr.comAttorney General Jeff Sessions is reportedly planning to let federal prosecutors aggressively enforce federal anti-marijuana laws in states where pot has been legalized.

What gives the federal government the authority to target legal state pot? The answer is not the Constitution. This federal power grab is the product of two awful Supreme Court precedents.

In 1942 the federal government brought sanctions against an Ohio farmer named Roscoe Filburn. His crime? He grew twice the amount of wheat that he was permitted to grow under the terms of the Agricultural Adjustment Act of 1938. That sweeping federal law, ostensibly passed as part of Congress's power to regulate interstate commerce, sought to raise agricultural prices by limiting the supply of crops.

Filburn defended himself from the feds by pointing out that his extra wheat never once entered the stream of interstate commerce. In fact, he noted, that extra wheat never even left his Ohio farm. He used it to feed his livestock and to make flour for use in his family's kitchen.

But the Supreme Court ruled against him on Commerce Clause grounds anyway. Filburn's extra wheat may not have crossed state lines, the Court conceded in Wickard v. Filburn, but it still had a "substantial economic effect" on the interstate wheat market. As a result, Congress had every right to regulate Filburn and other farmers in this manner.

Six decades later, in the case of Gonzales v. Raich (2005), the Supreme Court applied and extended the Filburn precedent by upholding the federal ban on marijuana, even as applied to plants that were cultivated and consumed by patients for their own doctor-prescribed use in states where medical cannabis was perfectly legal. "The [Controlled Substances Act] is a valid exercise of federal power," declared the majority opinion of Justice John Paul Stevens, "even as applied to the troubling facts of this case."

Writing in dissent, Justice Clarence Thomas spelled out the disastrous impact of the Wickard/Raich doctrine in plain English: "By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power."

Which brings us back to Jeff Sessions. If the attorney general follows through on his threats to unleash the federal government against legal state marijuana, make sure you reserve a portion of your outrage for the lousy SCOTUS decisions that empowered the feds in the first place.

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  • ||

    c'mon Damon. They empowered Congress. Sessions is just their agent.

  • Zeb||

    Well, if you want to get all pedantic, congress passed the law, then the court failed to disempower them as they should have.

  • BambiB||

    Wickard is one of the most oft-cited excuses for the exercise of Federal power in areas NOT found in Article 1.

    As much as one might want to blame the Supremes (who are indeed at fault) the greater blame goes to FDR who blackmailed the Court into the Wickard decision.

  • Doctor Mist||

    In the always-apt words of Evan Larkspur: The three worst threats to freedom are a standing army, a sitting legislature, and a lying executive.

  • This Machine Chips Fascists||

    Alt text: It's true. I'm a turd.

  • BestUsedCarSales||

    It's definitely an "Ain't I a stinker" look.

  • Libertarian||

    . . . Agricultural Adjustment Act of 1933. That sweeping federal law, ostensibly passed as part of Congress's power to regulate interstate commerce, sought to raise agricultural prices by limiting the supply of crops."

    Ah yes, the Great Depression, when people were broke and could barely afford to eat. It's only natural that FDR would want to raise prices on food. For the common good.

  • Conchfritters||

    Henry Agaard Wallace strikes again.

  • DesigNate||

    Greatest. President. Ever.

    /Tony

  • This Machine Chips Fascists||

    Congress made the laws. Congress consented to every witch among the Nazgul. Congress consented to Sessions as AG. Fuck Congress.

  • Billi||

    Seconded.

  • Conchfritters||

    One ring to take away all of their sticky icky.

  • The Last American Hero||

    This.

  • Mickey Rat||

    The Senate part of Congress did all those things. The House is only responsible for one.

  • Rich||

    If the attorney general follows through on his threats to unleash the federal government against legal state marijuana, make sure you reserve a portion of your outrage for the lousy SCOTUS decisions that empowered the feds in the first place.

    Also, make sure you reserve some popcorn for the fed-vs-state, um, conflicts.

  • Billi||

    It had to be resolved. The lingering threat of federal prosecution was untenable.

    The outrage is pretty stupid, TBH.

  • Imissbuckley||

    I wouldn't call it "untenable"

    Particularly since the Feds are very unlikely to go after any of the Medical Cannabis Dispensaries in states like Florida or Ohio even if the Rohrabacher–Farr amendment is not renewed. Unless Congress and President Trump push for carving out a new legislative exception for Medical Cannabis, the federal law/state law conflict will remain.

  • Libertarian||

    "reserve a portion of your outrage for the lousy SCOTUS decisions "

    But do not, I repeat, do not hold your breath waiting for Republicans to shout support for federalism.

  • FlameCCT||

    LMAO.

    Where the hell have you been for the past 12-16 years when Republicans have been screaming for support for federalism while the Progressives have been shoving more Big Government down everyone's throat?

  • commentguy||

    It's intriguing that you think Congress(wo)men actually operate on the basis of principle, rather than tribalism. The Republicans who used to oppose budget deficits and executive orders when Obama was in power suddenly changed their tune in the last year. And a LOT of Democratic politicians were against gay marriage before they were for it. I wonder why?

  • BestUsedCarSales||

    I heard the Seattle Mayor talk about this and they kept claiming that all the advances were made by "us" which seemed to be the city of Seattle. What an arrogance which really tells the rest of the state to fuck off. Though, Seattle mostly does that anyway so it's to be expected.

  • The Last American Hero||

    Sort of like when California revolted when Obama and Holder were raiding legit Med MJ Dispensaries? It was those raids that cost Obama the election in 2012 when California voted for Romney. Oh, wait.

  • Imissbuckley||

    Obama could've shot an adorable pony on national television and still won California by double digits against Romney. Also Romney was terrible on the cannabis issue too. The only difference between Obama and Romney on cannabis is Romney didn't win. Other than that Romney would've probably followed a similar route that Obama did in 2013 or he could've been worse, who knows.

  • Unlabelable MJGreen||

    I'm gonna blame everyone. Including you, Root.

  • ATXChappy||

    "...make sure you reserve a portion of your outrage for the lousy SCOTUS decisions that empowered the feds in the first place."

    I think there is enough outrage to go around for all three branches of government. Let's not forget that Congress passed the controlled substance act. So, let's give them some of that love too.

  • YC||

    I blame people who keep voting for Republicans.

  • Libertarian||

    Ahem.

    WASHINGTON -- Colorado's GOP senator called Attorney Jeff Sessions' move to crack down on marijuana in states that have legalized weed "extremely alarming."

    "Before I voted to confirm Attorney General Sessions, he assured me that marijuana would not be a priority for this administration," Sen. Cory Gardner (R-Colo.) said. "Today's action directly contradicts what I was told, and I am prepared to take all steps necessary, including holding DOJ nominees, until the attorney general lives up to the commitment he made to me prior to his confirmation."

    "In 2016, President Trump said marijuana legalization should be left up to the states and I agree," Gardner added.

    Gardner later angrily slammed Sessions' decision on the Senate floor that he said was a surprise, coming "without any notification, conversation or dialogue with Congress."

    "We were told that states' rights would be protected... we were told that by then-candidate Donald Trump," he said. "... What has changed President Trump's mind?"

  • YC||

    I'm definitely glad Gardner spoke up and am very much hoping he follows through on his words and proves my gut feeling wrong.

  • FlameCCT||

    Lest we forget, Gardner was all for limiting the size magazines in CO which led to Magpul leaving. If his past actions are any indication then he, like most Progressives in Congress, won't take any action. We see the same thing on most issues from firearms where Progressive Democrats ignore the Constitution to marijuana where Progressive Republicans ignore the Constitution.

  • Rockabilly||

    FDR, the socialist god, signed the Marihuana Tax Act. The war on drugs is what happens when the government grows beyond the founders' intentions.

    Most of the blame for the war on drugs lies with the so called progressives. They gave us the beast.

  • BigT||

    Progressives also gave us institutional racism (segregation, Jim Crow laws, etc). And yet now they try to claim the high moral ground with never-ending virtue signaling on Facebook and in the MSM plantations.

  • FlameCCT||

    Yup. They took their plantation ideology along with Progressivism and turned government run cities in Progressive Plantations (Marxist Utopias) with Elitist Masters and Uncle Tom Overseers controlling Proletariat Serfs mainly through Progressive Propagandists aka MSM.

  • Seamus||

    Yeah, but at least FDR relied on the taxing power (which is pretty clearly in the constitution) to regulate marijuana and didn't pretend that the power to regulate interstate commerce gave Congress the power to ban the stuff outright. Back in those days, people thought it took a constitutional amendment to authorize Congress the power to legislate on such things as the manufacture and sale of intoxicating liquors. Of course, Wickard v. Filburn changed everything, making things like the Controlled Substances Act possible.

  • Sometimes a Great Notion||

    I just hope CA really wants to have #Resistance. It would be great if they arrested every DEA agent or Prosecutor for theft and kidnapping for ever product or person they seize.

  • crufus||

    That won't happen because it would cut into the income of lawyers.

  • Mesoman||

    It it happens, the Army (or federalize National Guard) will be called in to solve the problem, and those who ordered the arrests will probably (and appropriately) be charged with sedition.

  • working poor||

    I blame the people who put reps in office that do not vote to make marijuana legal.

  • UnrepentantCurmudgeon||

    The answer is not in the Constitution? Hmm. I seem to remember something called the "supremacy clause", which states that "the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land". And as a rule, state laws on a subject that conflict with federal law are treated as void. So, since federal law says marijuana is illegal, state laws legalizing marijuana are in conflict with federal law and therefore void. The state laws have existed and expanded through a federal policy of benign neglect, which may be coming to an end.

    I don't say this joyfully, since I am a dedicated user of medical marijuana, but there it is. Please prove me wrong.

  • DaveSs||

    Notwithstanding flawed court decisions to the contrary, there is nothing in the Constitution that allows the Federal government to make it illegal, so the relevant Federal laws are in fact themselves void and the State laws are free from supremacy clause concerns.

  • Mike Shipman||

    "there is nothing in the Constitution that allows the Federal government to make it illegal"

    The Commerce Clause (...or at least a contrived interpretation of it). Whether one agrees is irrelevant because that's what Congress used and the Supreme Court upheld it.

    What concerns me is that in Gonzales v. Raich (2005) upholding of the Commerce Clause, the Supreme Court argued that "Congress could ban local marijuana use because it was part of such a "class of activities": the national marijuana market. Local use affected supply and demand in the national marijuana market, making the regulation of intrastate use "essential" to regulating the drug's national market." In theory, some overreaching future Congress could argue that all personal growth and consumption of ANTHING could "affected supply and demand" and warrant regulation. Imagine a world where no one is allowed to grow anything for personal use and can only buy necessities elsewhere. Slippery slope and a logical fallacy, I know. But still.

    https://www.oyez.org/cases/2004/03-1454

    *Disclaimer - I do not support government regulation of marijuana

  • DaveSs||

    The Commerce Clause (...or at least a contrived interpretation of it). Whether one agrees is irrelevant because that's what Congress used and the Supreme Court upheld it.

    That's what I said
    Flawed court decisions

    The fact that the court has used tortured logic to allow the Congress to regulate whatever it wants does not in fact make it permitted by the Constitution.

  • μ Aggressor||

    Spot on, it's unreal. If I want to make a fucking pile of rocks for no reason in my backyard that could fall under purview of the federal government because it "affected" the economy of oh say landscapers that affects the national landscaping market. Even inactivity would regulated because me deciding to not eat brussel sprouts affects the market since I could have eaten them.

  • BigT||

    Um, you might want to check the 10th Amendment, although the SCOTUS has made it nearly a dead letter (to quote Clarence Thomas).

  • MoreFreedom||

    Like Clarence Thomas wrote (greatest SCOTUS Justice ever) with your thinking, "the Court abandons any attempt to enforce the Constitution's limits on federal power."

  • Episteme||

    Writing in dissent, Justice Clarence Thomas spelled out the disastrous impact of the Wickard/Raich doctrine in plain English: "By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power."

    "This agglomeration which was called and which still calls itself the Holy Roman Empire was neither holy, nor Roman, nor an empire." – Voltaire

  • BigT||

    "If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined," while those of the States are "numerous and indefinite." The Federalist No. 45, at 313 (J. Madison)."

    Gotta love that man!!

  • Mesoman||

    Just remember, he was appointed by a Republican and is a conservative. And yes, he's our best SCOTUS justice.

  • ||

    Surprise- a court failed to do its job? I'm shocked!

  • ||

    Surprise- a court failed to do its job? I'm shocked!

  • Longtobefree||

    The simple answer is for the feds to do their job and get marijuana off the schedule one list, since it DOES have 'legitimate medical uses'. It cannot legally remain on the schedule one list. Get with the program Jeffy boy!

  • FlameCCT||

    Getting it off the schedule I list is not under the DOJ purview.

  • Rockabilly||

    The fact is that the war on drugs is not authorized by the US Constitution.

    Even the so called progressives knew that to stop the manufacture and distribution of alcohol, a constitutional amendment had to be passed.

    Only a commie rat would think the US government has the authority to tell a citizen what they can drink, smoke, eat, and grow.

  • IceTrey||

    According to the SC the Commerce Clause allows it.

  • BigT||

    STEVENS, KENNEDY, SOUTER, GINSBURG, BREYER, and SCALIA, voted for Gonzalez, while O'CONNOR, REHNQUIST, and THOMAS, voted for freedom. Today's court could be quite different.

  • μ Aggressor||

    Getting a reconsideration of Filburn would be a godsend, so don't ever expect it because ratchet and all

  • ||

    True, those were terrible court decisions. It's still congresses' ban though. It is congress who empowers the AG. If they want to make marijuana legal then the ball is in their court. I would hate to live in a world where the AG picks and chooses which law to follow.

  • FlameCCT||

    We just went thru 8 years of the AG picking and choosing which law(s) to follow.

  • DavLeigh||

    This article shows a complete misunderstanding of the legal position, which is quite clear and simple. The situation is covered by the supremacy clause, which is part of Article VI of the Constitution. The 'supremacy clause' states that in the event of a conflict of law between Congress and states, the doctrine of pre-emption appllies, and Congress wins. Absolutely nothing to do with Wickard v Filburn or Gonzales v Raich, as far as I can see.

    All Sessions is doing is applying the law. If you don't like it, get the law changed!

  • ||

    You're missing the point. The Supremacy Clause only holds federal law supreme over state law if the federal law was proper in the first place. Since this one wasn't (regardless of what leftists on the Supreme Court have ruled), there is nothing to reign supreme.

  • Mike Shipman||

    With all do respect, whether it's "proper" is a matter of interpretation and numbers. The simple fact is a majority of Congress passed it and a majority of Supreme Court justices upheld it, multiple times. Therefore, federal law supersedes state law in this matter.

    *Disclaimer - I do not support government regulation of marijuana.

  • Mesoman||

    Whether is is proper is, for a start, whether it is constitutional - i.e. an exercise that falls under the enumerated powers of the federal government.

    SCOTUS has made two very bad rulings, as the article states, allowing the Interstate Commerce Clause to be used to ignore this standard.

  • Mike Shipman||

    But, as you said, the standard in question relates to the enumerated powers of the federal government, of which the commerce clause is one of.

    "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;" - Article I, Section 8

    The question really isn't about using the commerce clause to ignore a standard since the commerce clause is an enumerated power (a standard). The real issue is Congress and the Supreme Courts convoluted interpretation of the Commerce Clause and that's what has to change. The argument is the interpretation of the commerce clause rather than it's constitutional legality.

    *Disclaimer - I do not support government regulation of marijuana.

  • RPGuy16||

    For all of the good things he did, Scalia voted with the majority in Gonzales v Raich.

    Also, doesn't the President have the unilateral ability to take drugs off of the schedules? So all 3 branches of government are to blame. There is no reason to keep allowing responsibility for it to be pushed down to the attorney general for political expediency.

  • Deven is my bitch||

    A conservative court is blamed for conservative Sessions ignoring state laws and packing more people into for-profit prison.

    reason.com is losing its edge. Surely you can blame Clinton or Obama or FDR or someone.

  • ||

    A conservative court? The only conservative in the majority there was Scalia. Otherwise, it was the liberals that empowered Congress against Arizona.

  • John Q Dallas||

    In one ruling the Court held that an old lady growing marijuana in her own apartment for her own use was "engaged" in interstate commerce. Since the wind blows across state lines, the air and all that it touches is in interstate commerce. Justice Clarence Thomas has consistently been to most rational and intelligent member of the Court that we have ever had.

  • commentguy||

    I disagree enormously with some of his beliefs (e.g. that children have no rights when at school). But he is spot on with regard to the Commerce Clause. It has been stretched to near breaking point to cover possession of home-grown drugs!

  • kramartini||

    From the Supreme Court's Wickard opinion:

    "But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market."

    This is a completely unsupported statement by the Court. There is no evidence that, if Farmer Filburn had not grown the wheat in question, he would actually have purchased price-supported wheat on the open market to feed his livestock.

    First, there is no evidence that Farmer Filburn would have had the money to purchase the wheat that he grew for his farm.
    Second, the Court completely ignores the probability that Farmer Filburn would have grown unregulated hay to feed his livestock if he had not grown wheat.

    Since there was no proven impact on the market by Farmer Filburn, there was no aggregate effect, since zero times any number equals zero.

  • SDN||

    So where is the scorn for the Congressional Cowards who could pass a law legalizing pot, but are trying to hide from their responsibilities?

  • AD-RtR/OS!||

    "The best way to get a bad law repealed is to enforce it strictly."
    - Abraham Lincoln

  • CosmicRay||

    I agree completely that Wickard is wicked. The expansion of the commerce clause put huge economic power into the hands of members of Congress and their staff, thus making it cost-effective for big companies with national markets to send lobbyists to DC and create the culture of corruption that infects our government. If Wickard were overturned, it would devastate the Lobby industry because economic power would be taken out of the few hands in DC and placed in thousands of hands in states around the country.

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