Supremes just say no to smoking doobie

The Supreme Court ruled today in Gonzalez v. Raich that federal law banning marijuana trumps state laws that allow medicinal use of the drug. Ed at Captain’s Quarters presents a defense of the majority Supreme Court ruling here:

However, O’Connor has to then ignore that Congress gave the authority for determining safety, efficacy, and propriety of pharmaceuticals to the FDA, in part to protect American consumers from the quackery of the 19th and early 20th centuries. That amounts to a compelling state interest, and Congress has the right and responsibility to act in that regard. To have SCOTUS strip that authority from Congress would have amounted to judicial activism, this time ironically from the right.

But Ed misses an important distinction. There’s no marketing of snake oil involved here. There’s no marketing period. The case at hand involved a person growing marijuana on their own property for their own use. At issue in the case was the scope of the Constitution’s “Interstate Commerce” clause. Reigning in the federal government’s powers to conform to constitutional limits is not “judicial activism.”

The larger issue in the case is that the Constitution gives Congress specific limited powers. Congress may not exceed those powers in granting authority to a federal agency, even if lots of people think it would be a good thing to do. Growing something in your own yard for your own use does not involve any “interstate commerce” as those words must be understood in plain English, no matter how much we may not like the crop being grown. Ruling that way would not be judicial activism.

As Justice Thomas said in his dissent, (quote via The Corner on NRO) “If 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.”

David Bernstein and Orin Kerr have more analysis at the Volokh Conspiracy.

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