June 6, 2005
ASHCROFT NEVER LOSES:
Supreme Court outlaws use of marijuana for medical reasons (GINA HOLLAND, June 6, 2005, AP)
Federal authorities may prosecute sick people who smoke pot on doctors' orders, the Supreme Court ruled Monday, concluding that state medical marijuana laws don't protect users from a federal ban on the drug.The decision is a stinging defeat for marijuana advocates who had successfully pushed 10 states to allow the drug's use to treat various illnesses.
Justice John Paul Stevens, writing the 6-3 decision, said that Congress could change the law to allow medical use of marijuana. [...]
Stevens said there are other legal options for patients, "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."
There just isn't any medical necessity for marijuana. Posted by Orrin Judd at June 6, 2005 4:18 PM
Does Mrs. Judd agree with that?
Posted by: Pat H at June 6, 2005 4:36 PMYes. She laughs at these stories.
Posted by: oj at June 6, 2005 4:39 PM"Duuuuude, the Supreme Court is, like, harshing my mellow. I mean, I thought it was a high court and all."
Posted by: Mike Morley at June 6, 2005 5:04 PMWhat a missed opportunity to tie two posts together. Since I can't seem to get the Dubie comment page to load, here's my quick shot:
Supreme Court Prohibits State-level Dubie Support
Posted by: b at June 6, 2005 5:08 PMjust out of curiosity, what is the biblical take on things like pot and alchohol ?
Posted by: cjm at June 6, 2005 5:31 PMoh, and it's kind of funny that the article is bylined by someone named "Holland".
Posted by: cjm at June 6, 2005 5:33 PMAnd the medical necessity for alcohol? I'm w/ Thomas on this one.
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 majority’s rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively.
If Congress were losing some share of taxes on the actual $10.5 Billion schpleaf market to 'medical users' they might have an argument. But since they don't have the intestinal fortitude to capitalize on that opportunity, arguing this case from 'Commerce' is ridiculous.
Wine good, dope bad
Posted by: oj at June 6, 2005 5:40 PMYep. Follow the money.
Posted by: John Resnick at June 6, 2005 5:41 PMJohn:
The government not only regulates alcohol but most of the drugs a physician prescribes for you, no? The question is why would pot be different?
Posted by: oj at June 6, 2005 5:45 PMNo, that's completely off base. I mean we have to leave certain room for various ideas that might not, you know... have a certain relevance with our, um... in terms of... what was the topic again?
Posted by: at June 6, 2005 5:49 PMI'm with Thomas, too. Didn't know the bible even mentioned cannabis, much less condemning its consumption.
The war on drugs is basically a jobs program for cops and the drug rehab industry. In Minnesota, we now have to sign for Sudafed, which must be kept behind the counter and tracked like morphine. Absurd.
Posted by: Ted Welter at June 6, 2005 5:53 PMOJ: Um. Actually, the question is still why isn't pot like alcohol. In Oregon, you have to get hard liquor at a State run store. In California, you can get it at the grocery store. Either way, the Feds and the State have all sorts of regulation about it and make their pound of flesh.
The bigger question is the one Justice Thomas raises: Where does it end?
Any SCOTUS opinion opposed by Renquist, O'Connor, and Thomas should give Federalists pause.
Posted by: ghostcat at June 6, 2005 6:15 PMDamn the Constitution, full speed ahead!
The question before the Court was not whether pot was bad or should be regulated. The question was whether or not the FEDERAL GOVERNMENT has the power to regulate entirely intrastate growth and use under the Commerce Clause. This was an imporatant case for those of us that genuinely believe in Federalism and we lost. Scalia can no longer be considered an originalist. With this decision, he has shown himself to be an activist conservative jurist that is originalist only to the extent that theory agrees with his own prejudices.
Posted by: Pepys at June 6, 2005 6:44 PMTed,
Sudafed is used to make methamphetamine. It is a simple process to create what is one of the most dangerous illegal drugs in the country. Meth users become violent criminals and useless addicts. Store owners have shown they are willing to sell large quantities of the drug to whoever wants it and even have coached "cookers" on how to structure transactions to avoid notice. Since there is a demonstrably high potential for abuse (a key component in how a drug is classified and sold), it should probably be made a prescription drug. Knowing this, is signing for a drug that you use only a few times per year so intrusive considering the proven alternative?
"The government not only regulates alcohol but most of the drugs a physician prescribes for you, no? The question is why would pot be different?"
Okay Orrin. Alcohol is regulated but you are allowed to brew up to 200 gallons/year for personal use, but not allowed to grow marijuana. So why is it treated differently?
Posted by: jd watson at June 6, 2005 7:36 PMJohn:
Yes, it's regulated. So is pot. It's regulatory scheme is just a prohibition.
Posted by: oj at June 6, 2005 7:55 PMOJ: ....drugs are antisocial. unless they're medicine, (or alcohol, which . . . . isn't a drug because it makes me want to hug you? After a few cold ones, you know, I DO really love you, man.)
California voters apparently think pot is medicine. Ted Kennedy thinks alcohol is medicine. And, because he's a Senator, the voters in California are wrong and he's *hick* damn right.(ewfff,'scuze-me).
The majority in the opinion did have one thing right: the fight really rests on how pot is characterized (Scheduled?). My guess is that's where the fight goes next.
Posted by: John Resnick at June 6, 2005 8:14 PMPepys is right OJ. And you are wrong. The case was about the contiuing viability of Wickard V Filburn and the basis for the wretched New Deal. Thomas is of course spot on.
As for medical necessity, neither you, nor the Good Doctor, nor that dodering old freak John Paul Stevens have the authority to decide that for the people of California. They have spoken and that should have been the end of the question.
Posted by: Robert Schwartz at June 6, 2005 8:20 PMJohn:
Yes, drugs are regulated and the ones with medicinal purposes and limited side effects made available. Pot serves no necessary medical purpose and psychoactive substances ought not be available. we make an exception for alcohol only because of its centrality to social custom.
Posted by: oj at June 6, 2005 8:36 PMrobert:
The Constitution decided the question of federalism. The Federalists, who were anti-federalist, won.
Posted by: oj at June 6, 2005 8:37 PMGood ruling. Next step is point out the absurdity of believing that a harmful carcinogen--which impairs the immune system and causes various cancers--is good for people suffering from AIDS and cancer.
Posted by: Vince at June 6, 2005 8:49 PMOJ: Thomas, Rhenquist, Scalia and most of the time O'Connor have been crafting a new jurisprudence over the past decade or so. The core of which was supposedly "federalism" or an outcome neutral deference to the States. I agree this amounts to a reversal of existing precedent. However, that precedent only goes back as far as the previous poster stated, namely Wickard v. Filburn and the New Deal and *not* the Federalist Papers. With this decision, Scalia has seperated himself from the other conservatives in the group by acknowledging that his "originalism" is nothing more than a sophisticated way of enacting his own personal preferences under the guise of neutrality. I am a conservative, and likely as conservative as Scalia, but I disagree strongly with his decision and feel a sense of betrayal. Scalia convinced many with his repeated insistence that his jurisprudence was not outcome determinative and that his opinions were not reverse engineered.
Posted by: Pepys at June 6, 2005 9:15 PMPepys:
Scalia understands that drug abuse is a nationwide problem--not just a problem limited within the boundaries of a certain state.
Posted by: Vince at June 6, 2005 9:40 PMVince: Medicine abuse or drug abuse? Or both? Is it that we simply don't trust the petitioners in this case and they must be having WAY too much fun getting stoned legally?
Posted by: John Resnick at June 6, 2005 10:16 PMPepys is correct. OJ is wrong. Federalism is a balancing act. The New Deal and since, the Federal fatso sat on its end of the teter-toter. The supreme court today backed off on a chance to make fatso get up, because even the inhabitants of the old folks home believe that pot is a "PROBLEM" that the federal government must be involved in. 2 very dubious propositions in one pass.
Posted by: Robert Schwartz at June 6, 2005 10:36 PMThe issue is not whether it is a nationwide problem or even whether it would be a good idea for Congress to regulate it. The question is: does Congress have the power to regulate purely *intrastate* activity under the Commerce Clause. If you think Congress does have that power then you must say that purely *intrastate* production and consumption of marijuana has an effect on interstate commerce. It is not enough that you think, as I do, that marijuana use is bad. Now, I agree that the Supreme Court has handed down a series of decisions over the decades since the New Deal that have stretched the definition of interstate commerce to cover almmost anything. However, I disagree with that precedent and think that marijuana locally grown and locally consumed has insufficient bearing on interstate commerce to justify regulation by Congress. I also agree theoretically with federalism and think that the more power devolved to the States the better. I admit that there are reasons to disagree but this case was not based on whether or not drug abuse is a national problem. And whether you like it or not, the fact that something is a "national problem" does not give Congress the right to legislate.
Posted by: Pepys at June 6, 2005 10:39 PMPepys:
National problems should logically be dealt with on a national level.
All 9 justices agree that Congress can regulate purely intrastate activity if necessary to effectively regulate interstate commerce. The argument here is two-fold: first, that the use of medical marijuana in California is sufficiently distinct from interstate usage as to not effect interstate commerce; and second, that the marijuana was not in commerce because it was never sold and the interstate commerce clause requires commerce as a basis for regulation. If adopted by the Court, the first argument would not have required overruling Wickard. The second argument would have required overruling Wickard.
The problem with the first argument, made primarily in Justice O'Connor's dissent, is that is requires the court substituting its judgment for Congress' judgment. If Congress believes that the firewall between medical marijuana use and regular use is not sufficient, why should the Court be able to second-guess that judgment? Also, there really isn't any purely intrastate activity any more. Is it really possible that nothing used in growing the marijuana was bought from out-of-state? The grow lights, the fertilizer, the lava lamp and black-light posters -- something came from out-of-state.
The second argument, primarily made by Justice Thomas, is more difficult. Wickard is an ugly, bothersome opinion that almost no one likes, except as a necessity. Like administrative law, the argument for Wickard basically comes down to that, without it, modern government would not be possible. Not a particularly principled argument and I'd be glad to see Wickard bite the dust.
Posted by: David Cohen at June 6, 2005 11:42 PMPepys:
Sure, it's enough, that's what the government exists for, to:
"form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty"
Posted by: oj at June 6, 2005 11:52 PMInteresting. The former attorney general of California, one of the toughest foes of medical marijuana, told me straight up that it was medically useful, and that his reason for opposing it was because it invited marijuana abuse. Your interpretation, once more, is perverse.
Posted by: Rick Perlstein at June 7, 2005 12:45 AMWhere'd he get his M.D. again?
Posted by: oj at June 7, 2005 12:50 AMI'm bored, can't sleep, and good to go. OJ, wtf, do you really think you couldn't located THOUSANDS of doctors who disagree with you?
Posted by: Rick Perlstein at June 7, 2005 1:01 AMBy the way, the reason I know DL is because his father was Nixon's personal physician.
Dad was physician=wife is physician in my book.
Though "Dad was physician sufficiently proficient to minister to a president" seems more dispositive to me.
Posted by: Rick Perlstein at June 7, 2005 1:03 AMDC: It is entirely reasonable to state as you do that Congress should be deferred to in this situation. In fact, except for the recent Lopez and Morrison (sp?) decisions there were literally no legal precedent for restricting the power of Congress to legislate on the basis of the Commerce Clause. The problem some people have with the decision is that it was a chance to make federalism a meaningful doctrine again. However, I disagree with your description of the arguments and think that Wickard did not have to be overturned to support the petitioner. In Raich, the case at bar, you are correct that there was no sale and thus no commerce. In Wickard, there was a sale. The farmer in question sold part of his crop. As I understand it, that was the hook for the court. This Supreme Court could have simply said that in Raich there was no sale, no commerce, and thus no basis for federal legislation. That would distinguish the case from Wickard and not require its overruling. Your other point that there is no truly intrastate commerce anymore is part of the problem. There is no truly intrastate commerce anymore because of the jurisprudential lens thru which we consider these things. That was precisely what the Supreme Court created in Wickard. I think what opponents of Raich want is to reintroduce the following abandoned concepts: that there is truly intrastate commerce and that not everything in the world effects interstate commerce. The revival of these concepts is federalism. It might be a bad idea, but that is what a lot of people on the left and right want.
Of course, I agree with you that Wickard is a terrible case and should go as soon as possible.
Finally, isn't the really interesting thing that Scalia came out as an activist with this case? It sure looks to me like he's a fair weather originalist.
Posted by: Pepys at June 7, 2005 2:37 AMRick:
Sure, you could. You can find Dr. Feelgoods to write you scrips for anything.
Posted by: oj at June 7, 2005 7:40 AMRick:
You think his Dad wasn't pumping Nixon full of drugs? The guy was a nutter.
Posted by: oj at June 7, 2005 7:47 AMWait, man, I'm confused now. Orrin so now you think alcohol is a good thing? Because the last time we danced around the marijuana maypole you were of the opinion that Prohibition was the greatest piece of social engineering ever created and that we would be living in a dry Utopia if it weren't for that wussy boy FDR repealing Volstead. Wasn't the hero of your aborted Great American Novel a big fan of Prohibition? And now you say that wine is a good thing? Why the change of heart?
Posted by: Governor Breck at June 7, 2005 7:53 AMProhibition was a noble experiment, that by and large worked, but alcohol is too much a part of the fabric of society to be torn out easily. Drugs are anti-social and rather easily kept illegal
Posted by: oj at June 7, 2005 8:01 AMnever did drugs, never plan on doing them...
man I think the SC screwed uo this one.
never did drugs, never plan on doing them...
man I think the SC screwed up this one.
When I am in pain, I take pain relievers.
I was more upset about the states rights aspects of this case. I am still fundamentally suspicious of govt. I believe that a local govt. can be more responsive to voters. I have to respect the voters of those states that approved of the drug legislation bills.
I am hostile to the idea that the govt. can basically veto any voter driven referendum.
Sorry OJ, first sentance was cut out.
I have never had the desire to take them.
And I don't really drink that much. Maybe a beer every other month.
Yes, they just aren't a part of the culture.
Posted by: oj at June 7, 2005 9:02 AMRight. And, since life is about character-building, there's no medical necessity for morphine either. Or the pink liquid, you know, the one you take on vacation with you. The way I look at it, there's suffering we can't mitigate, and then there's suffering we can mitigate. What degree of preventable suffering (preventable either by pharmacologic virtue or placebo effect) are we willing to enforce as a society on cancer sufferers who are simultaneously coping with chemotherapy, cancer pain and a possible death sentence?
Posted by: Paula R. McIntyre Robinson MD at June 7, 2005 11:11 AMPepys: The farmer in Wickard sold some wheat, fed some to his animals, ground some for his own flour and kept the rest as seed. The court held that even wheat never intended for sale is subject to congressional regulation:
Hence, marketing quotas not only embrace all that may be sold without penalty but also what may be consumed on the premises. Wheat produced on excess acreage is designated as 'available for marketing' as so defined and the penalty is imposed thereon. 14 Penalties do not depend upon whether any part of the wheat either within or without the quota is sold or intended to be sold. The sum of this is that the Federal Government fixes a quota including all that the farmer may harvest for sale or for his own farm needs, and declares that wheat produced on excess acreage may neither be disposed of nor used except upon payment of the penalty or except it is stored as required by the Act or delivered to the Secretary of Agriculture. Wickard, 317 U.S. 111, 119.
Posted by: David Cohen at June 7, 2005 11:41 AMreintroduce the following abandoned concepts: that there is truly intrastate commerce and that not everything in the world affects interstate commerce.Necessary, but not sufficient. Also required is the recognition that the words "or anything affecting (or claimed to affect) interstate commerce" do not actually appear anywhere in the Constitution. Posted by: Kirk Parker at June 7, 2005 2:00 PM
Dr. PRMR:
Yes, as you point out there are other medications they could use if they truly need one.
Posted by: oj at June 7, 2005 3:03 PMDC: I see your point and thanks for the cite. However, I still think the cases can be distinguished. The farmer in Wickard was in a very real way engaged in commerce in that he farmed, at least partially, for the purpose of selling crops for profit. In Raich, the petitioners intended to sell no part of their crop and had never farmed for profit before. I see a significant difference between the two fact patterns. I understand that you do not and I also understand that it is not unreasonable to read Wickard as you do. My point is only that a court inclined to do so *could* distinguish the fact patterns on that basis.
Finally, the only thing that surprised me about the decision was that Scalia went along with the "New Dealers". I was personally confident the Court would not invalidate an existing and extensive criminal enforcement policy in the name of Federalism. I was also pretty sure they didn't want to be known as the pro-pot Court.
Posted by: Pepys at June 7, 2005 3:58 PMLook how far we've fallen: we all think that whether pot should be regulated or whether it is medically useful is relevant to the Court's decision. For better or worse, policy is for Congress.
Posted by: David Cohen at June 7, 2005 4:15 PMBut it's not a legal issue, just a cultural dispute.
Posted by: oj at June 7, 2005 4:21 PMOrrin, you claim to be a big booster of the African-American contribution to American culture. Well, pot was a much more accepted "part of the culture" among blacks than among whites. The evidence is overwhelming that this is why marijuana was criminalized. Unless "the culture"="white culture," you may want to rethink your bizarre rationale. Is jazz not part of "the culture"?
Posted by: Rick Perlstein at June 7, 2005 4:25 PMIf it's in front of the Court, I want the Court treating it as a legal issue.
Posted by: David Cohen at June 7, 2005 4:36 PMRick:
Of course American culture is predominantly white. That's a truism. Male too. and Christian.
Posted by: oj at June 7, 2005 4:39 PMHave you never read Ralph Ellison's essays? Albert Murray? The hack Stanley Crouch? Are you familiar with their arguments to the contrary?
How about Ann Douglas's The Feminization of American Culture? In the 19th C it was pretty well consensual that American culture was "female."
Posted by: Rick Perlstein at June 7, 2005 6:21 PM"No one has" what? Read Ellison, Murray, Crouch? Unless you've made a grammatical error, this is the most absurd Juddism of a rich and storied history of such.
Posted by: Rick Perlstein at June 7, 2005 8:02 PMYes, no one's read them. People buy the Cliff notes for Invisible Man, nevermind pick up any essays.
Posted by: oj at June 7, 2005 8:46 PMOJ, Yes there are other medications but in my experience, as an active board certified family physician, and as a Christian, there are never enough. People have intolerable adverse reactions, become allergic to a specific drug or class of drugs, or fail to respond. Not everyone or even most, but enough. You may not know these people personally. They may not be members of your family. But still. There are many patients who exhaust accepted medical options vis a vis nausea and emesis, ditto for pain relief. Are there any circumstances under which you would permit them such comfort as cannabinoids can afford?
Posted by: Paula R. McIntyre Robinson MD at June 8, 2005 8:52 AMMany? c'mon.
If someone is in that much pain and the only relief they can find is in marijuana, which is ludicrous on its face, let them get it and use it illegally. It's a built-in limit on irresponsible use.
Posted by: oj at June 8, 2005 10:31 AM