By Scott Prosterman

The Supreme Court decision on medical marijuana is troubling for many reasons. It also offers a ray of sunshine in that the majority opinion noted the counter-productive nature of federal laws, and urged the White House, Congress and the FDA to change them. Justice Stevens’ majority opinion has a clear tone of regret.

The justices acknowledged the pain and hardship that patients may have to endure because of this ruling, and Justice Stevens argued in his opinion that Congress must change these laws. He noted, “But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress”

The force behind this ruling is the 1942 Commerce Clause, which says that farmer growing wheat for his family’s personal consumption, is subjected to the same restraints and taxes as commercial procured wheat. It argues that by growing his own wheat, the farmer is investing that much less in the economy, and the government collects that much less tax revenue. The ruling is based on issues of commerce, rather than the efficacy of state laws that allow patients to grow and use marijuana for medicinal purposes.

If we extend this argument to its logical conclusion, then my neighbors’ orange trees should be taxed or confiscated. I bought fewer oranges this winter because they were right there for the picking. Using the same arguments, I am a federal felon for consuming un-regulated and un-taxed produce. Millions of Americans are guilty of same.

The 1942 Commerce Clause is a reflection of its time, and an anachronism in today’s global economy. World War II brought a system of rations for all commodities. It is curious that the war-time decision would bring punitive measures against a farmer or any citizen who choose to provide for himself by “growing his own.” Yet, the decision was made to the benefit of large-scale agricultural producers, at the expense of family growers. It was also made to support the New Deal and give the federal government the maximum support in collecting revenue.

The application of the Commerce Clause in the Raich decision is curious on many levels. Marijuana, unlike wheat, is not a taxable commodity, and is considered contraband to most citizens of most states. Ergo, there is no taxable revenue available to governments from the sale or cultivation of marijuana.

The decision held that the Commerce Clause’s authority includes the power to prohibit the local cultivation and use of marijuana. If Congress decides that the “total incidence” of a practice poses a threat to a national market, it may regulate the entire class. The decision also held that Congress can regulate purely intrastate activity that is not itself “commercial,”, namely that it is not produced for sale. The Justices concluded that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. They further stated that in both cases, the regulation is squarely within Congress’ commerce power, because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

At the same time, Perez v. United States, 402 U.S. 146, 151 argues that Congress has the power to regulate activities that have any substantial effect on interstate commerce. Considering the Raich decision arose out of a California state law and effected commerce only within the state of California, the Commerce Clause is misapplied here. Indeed the 2003 Federal Appeals Court decision that was overturned in this case noted that, “Congress lacked constitutional authority to regulate noncommercial cultivation and use of marijuana that did not cross state lines.” Nonetheless, Justice Stevens argued that the federal government can regulate local activities that ultimately effect interstate commerce. This is a troubling application and appears to be a “legal fiction,” or a presumption assumed for convenience of a particular constituency.

Other potential good news for the plaintiffs is that the opinion charges the 9th Circuit Court of Appeals in SF to re-consider other challenges to federal drug laws. Justice Stevens encouraged the White House, Congress and FDA to consider changing federal marijuana laws. Of these three entities, the FDA would seem most likely to move on this. The Republican majority in Congress takes most of its cues from the White House that is, once again, dispensing with good science in favor of ideology and constituency hysteria. John Walters, the White House drug czar ignores volumes of scientific research when he says, “To date, science and research have not shown that smoking a crude plant is safe or effective.” That mantra has been repeated so many times, it has become the punch line of a joke.

Scalia’s concurring opinion was purely “legal fiction,” in that he misappropriated the Commerce Clause to say something that is contrary to the heart and spirit of the Clause. He argued, “ . . . Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” Huh? Even Rehnquist and Thomas didn’t buy into that one.

Thomas presented an incisive argument by noting that, “if the Congress can regulate this under the Commerce Clause, then it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers.” It might be argued, that the Raich ruling violates the 10th Amendment, which reserves all powers to the states that are not enumerated under federal law.

There is hope in Congress. Last year, 152 representatives voted to consider the medical value marijuana in re-writing the federal laws. In May, 161 House Members supported the Hinchey-Rohrabacher Amendment to HR 2862, but not enough to hold sway. Companion issues of states rights individual choice appeal to the libertarian sector of the Republican Party. John Birch, himself, grew his own. Chief Justice Rehnquist and Justice Thomas joined Justice O’Connor in the dissenting opinion, leaving only Justice Scalia among the Supremes’ hard right faction, voting with the majority. Curious bedfellows have found one another on this issue.