Medical marijuana restrictions an abuse of Constitution’s commerce clause

The Orange County Register, a reliably conservative publication, has written an editorial attacking the Federal Government’s abuse of the U.S. Constitution’s “commerce clause” as a justification in banning medical marijuana. According to the Register, the law is the result of the Supreme Court’s 2005 ruling in Ashcroft v. Raich, which allowed federal charges against medical marijuana users in states where it was legal. That, in turn, originated in mistreatment of the Commerce Clause, “tortured from its narrow original purpose into federal authority so broad that some law schools call it ‘the everything clause’.”

Medical marijuana both grown and used in California is not interstate commerce. As 9th Circuit Judge Harry Pregerson recognized in the ruling that the high court overturned in Ashcroft v. Raich, “The cultivation, possession and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized by commercial or economic activity,” so that federal drug laws do not override state laws. Despite the absence of interstate commerce, however, the Commerce Clause is the sole basis for the holding that Washington can override California’s medical marijuana law.

The Commerce Clause arose to prevent states from imposing duties on goods from other states, by allowing only Congress to regulate (with its traditional meaning of “to make regular” or “to remove impediments”) interstate commerce. But it did not create a federal power to also control every aspect of life not involving interstate commerce.

In the Federalist Papers, Federalist 11 terms it not a grant of federal power, but a “prohibitory regulation, extending … throughout the states.” Federalist 42 describes its purpose as “the relief of the States which import and export through other States, from the improper contributions levied on them by the latter.” Federalist 45 cemented its narrow scope: “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. … The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and prosperities of the people; and the internal order, improvement, and prosperity of the State.”