This is from a New Yorker from back in 2005. I found it while looking for a way to share the awesome story in there a couple of weeks ago about the Medical Marijuana industry and sub-culture in California. All I could find was some audio commentary by the author.
The following is from the older story:
Watched Pot: The New Yorker: "“In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana”) could have been written by Justice Cheech or Justice Chong. Thomas’s private views on marijuana are unknown, but if he had his way, as expressed in this particular opinion, any federal interference with homegrown, home-smoked pot, whether for medical or recreational purposes, would be ruled out as an unconstitutional usurpation of the states’ powers “to protect the health, safety, and welfare of their citizens.”"
We really ought to get off our butts and get the Hinchey-Rohrabacher amendment passed. It "would deny the Department of Justice funds to surveil, arrest, or prosecute patients in states that have medical-marijuana laws."
It seems the problem is that, in order for Congress to regulate illegal marijuana it has to be able to regulate "legal" marajuana so that it doesn't cross over into "illegal" marijuana territory.
ReplyDeleteOh well. Congress would need to legislate on the matter for it to change.
"(b) Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce is firmly established. See, e.g., Perez v. United States, 402 U. S. 146, 151. If Congress decides that the “ ‘total inci¬dence’ ” of a practice poses a threat to a national market, it may regu¬late the entire class. See, e.g., id., at 154–155. Of particular rele¬vance here is Wickard v. Filburn, 317 U. S. 111, 127–128, where, in rejecting the appellee farmer’s contention that Congress’ admitted power to regulate the production of wheat for commerce did not au¬thorize federal regulation of wheat production intended wholly for the appellee’s own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself “commercial,” i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and Wickard are striking. In both cases, the regulation is squarely within Con¬gress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial ef¬fect on supply and demand in the national market for that commod¬ity. In assessing the scope of Congress’ Commerce Clause authority, the Court need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding. E.g., Lopez, 514 U. S., at 557. Given the enforcement difficulties that attend dis¬tinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U. S. C. §801(5), and concerns about diversion into illicit channels, the Court has no difficulty concluding that Con¬gress had a rational basis for believing that failure to regulate the in¬trastate manufacture and possession of marijuana would leave a gap¬ing hole in the CSA."
http://www.supremecourtus.gov/opinions/04pdf/03-1454.pdf
@Helen,
ReplyDeleteThanks for the citation. Good reading.
In fact, congress HAS attempted to change these laws, but, even though each year there are more votes for it than the previous year, the Hinchey-Rohrabacher thing fails to get enough votes.
More on that Amendment here:
http://www.safeaccessnow.org/article.php?list=type&type=318