Medical Marijuana and the End of Federalism

by Yakov Bok

On June 6, 2005, the Supreme Court ruled that state medical marijuana laws run afoul of federal drug policy. The state laws essentially allow a person, under a physician’s care, to grow and consume marijuana for personal medicinal consumption. Now, technically a citizen of one of the ten states that sanction medical marijuana can be prosecuted under federal law if they are “caught” following state law.

The popular press has been quick to point out that in reality the Supreme Court’s decision will have little effect on marijuana use. For the most part, the federal government didn’t enforce marijuana laws before Monday’s ruling and they aren’t about to start. More than 99 percent of all marijuana arrests are made at the state or local level. The fact that the Supreme Court’s ruling will have little impact on the real world, however, does not mean the decision should be ignored.

Despite the marijuana at issue in the ruling being grown for personal consumption and at no point entering the stream of commerce, Congress still has the power to regulate it. In coming to this decision, the Supreme Court relied heavily on Wickard v. Filburn, a 1942 case that gave Congress near tyrannical powers to regulate anything that substantially affects commerce. In Wickard, Filburn grew 12 acres of wheat for personal consumption in order to feed his family, in violation of the Agricultural Adjustment Act of 1938. The Act was designed to control price fluctuations of wheat. The Court said that Filburn’s removal of himself from the commercial markets may not alone effect commerce, but the aggregate effect of farmers becoming self-reliant would impact commerce and therefore, Congress could regulate the personal growth and consumption of a commodity. In other words, a man cannot be self-reliant in order to provide for his family because the grocery store is dependent upon his business. Thus, under the Court’s logic, every backyard tomato vine is subject to Federal control.

As the Court notes,

“the similarities between [the medical marijuana] case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. Just as the Agricultural Adjustment Act was designed "to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses . . . " and consequently control the market price, a primary purpose of [federal marijuana regulation] is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.”

An analogy can be made to the First Amendment. While we are free to express ourselves, conversely we have a guarantee to privacy, that is, to not express ourselves. Apparently, that freedom is lost when it comes to expressing ourselves by entering or not entering the market place. To reiterate, if you grow it and consume it instead of buying it, Congress has the power to enter your home and stop your activity. I hardly think the founding fathers had that in mind when writing the Constitution.

Despite the absence of proof, Congress wants to regulate medical marijuana because it fears surplus marijuana will potentially enter the illicit drug market, thus potentially increasing a commodity it wants to eradicate. The Supreme Court noted that marijuana is an “extraordinarily popular substance” on which American spent an estimated $10.5 billion in 2000. While the Court’s decision did leave room for Congress to create a medical marijuana exception to existing drug laws, it seems a far more efficient and humane means of controlling any potential surplus of medical marijuana by ensuring that states enforce their own personal growth and consumption laws. The problem is of course, if states do not enforce those laws as the federal government fears, and if the federal government doesn’t enforce its own marijuana laws, it is counter productive to even have anti-marijuana laws.

The Court’s choice of using Wickard v. Filburn as a means chipping away at state autonomy seems equally counter productive to regulating commerce. In Wickard, Congress sought to preserve a market by controlling local activity. Today, Congress seeks to destroy a market by controlling local activity. The result leaves me scratching my head, does Congress want me to spend money or not spend money?

Ironically, on June 2, five days prior to the Supreme Court’s ruling, Dr. Jeffrey Miron, a visiting professor of economics at Harvard University, released a report estimating that replacing marijuana prohibition with a system of taxation and regulation similar to that used for alcoholic beverages would produce combined savings and tax revenues of between $10 billion and $14 billion per year. In response, a group of more than 500 distinguished economists, led by Nobel Prize-winner Dr. Milton Friedman, released an open letter to President Bush and other public officials calling for "an open and honest debate about marijuana prohibition," adding, "We believe such a debate will favor a regime in which marijuana is legal but taxed and regulated like other goods." The bottom line is that marijuana is good for commerce. Thus, it is apparent that congressional extension into state autonomy and personal behavior is not good for anyone, least of all commerce.

The conflict between state marijuana laws and federal regulations is not new. Since 1937, the federal government has regulated marijuana. At the federal level, the Marihuana Tax Act imposed registration and reporting requirements for all individuals importing, producing, selling, or dealing in marijuana, and required the payment of annual taxes in addition to transfer taxes whenever the drug changed hands. Moreover, doctors wishing to prescribe marijuana for medical purposes were required to comply with rather burdensome administrative requirements. While the Marihuana Act’s requirements in effect prohibited the drug, in was technically legal in the eyes of the federal government. Marijuana, however, was illegal and invited prosecution at the state level. It was not until 1970 that both state and federal regulations prohibited marijuana.

Justice O’Connor noted in dissent that “[o]ne of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Regarding medical marijuana laws, there are ten courageous states. Apparently the federal government admires that courageousness by not making more marijuana related arrests. Yet the Supreme Court’s decision is contrary to state and federal actions and has reserved the right in Congress to disregard a state’s right to decide how to safeguard the health and welfare of its citizens. As Justice Thomas said in dissent, “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.”

Nonetheless, We The People have cause for concern.

Yakov Bok is a contributor to The Daily Cause.