June 8, 2005

Marijuana, federalism, rhetoric.

I'm seeing a lot of articles like "Federalism, Up in Smoke?", responding to Monday's medical marijuana case (Raich). It doesn't surprise me in the slightest that those who wanted the case to go the other way are saying the Court has turned its back on a commitment it had made to enforcing federalism. But don't fall for the rhetoric. Those who don't like the Court's federalism cases have long exaggerated the extent of what they like to call the Court's "federalism revolution," giving those who have wanted the Court to do something quite significant in the name of federalism the ability to sound plausible if they scream betrayal whenever the Court sides with the federal government, which is very often. Excuse me if I view all of this with a jaundiced eye.

UPDATE: Let me be clear about why I linked to that old post of mine, which discusses the as-yet-undecided Oregon Death With Dignity case. It is for this passage:
[The NYT's Linda] Greenhouse (along with others) has written so many pieces decrying the Supreme Court's "federalism revolution"...

Don't believe it! The Supreme Court has upheld federal regulatory power quite consistently, and the deference it has shown to the states has only been in discrete areas. Congress's power to regulate all components of a national market -- such as the market in drugs -- is quite solidly established. It will be hard to find a way to back off from that. I support the Court's federalism decisions and I approve of allowing the states to experiment as Oregon has, but I don't see a good way, considering the precedents, to disempower the Attorney General in this decision about how the Controlled Substances Act ought to be enforced.
The federalism-enforcing cases have gotten a lot of press, and a lot of liberal commentators have tried to stir up alarm about how much had happened, but these cases never seriously undermined federal interests. The Court's federalism was always very tame. It only trimmed what was perceived as unimportant federal power around the edges. I could go on at length about this, as I have in scholarly articles, but really, if you actually thought the Court was seriously enforcing federalism, you were believing the spin. Conservatives were doing some similar spin, characterizing the Court as committed to something in the hope that it would demonstrate some serious commitment in the future, but, believe me, the commitment to federal interests was always there. And the federal government is unquestionably committed to drug enforcement.

UPDATE: Here's the Wall Street Journal's contribution to the genre.


John Stuart said...

Fair enough. A good sense of perspective on this is indeed important. But wouldn't you say that the Oregon case really is a test case for whether the so-called federalist revival means anything. I had though the entire import of the "revival" was to have meaningful judicial review of national power questions rather than relying solely on the political safeguards in Congress. But in the Oregon case, the federal action in question is not the product of Congress but of the DOJ, so the political safeguards traditionally thought to protect the states have been bypassed. If the court doeesn't at least insist that state law only be trumped by congressional action, have not the political safeguards been totally rendered useless?

in_the_middle said...

ann, i don't have the legal wherewithall to argue the finer legal points of this case, but i don't think anyone can call this a consistent ruling, and i think criticism is more than fair. those who are critical of judges like scalia who apparently find federalism suitable only if they like what's being decided have had their point made loud and clear (if not earlier in the interstate wine shipping decision). in other words, from my layman's p.o.v., it looks as if those claiming to be aghast at "activist" judges (in this case, that would be their pal scalia) really need to come out and admit that they really mean it only when it is suitable to their predilections.

let's just be honest here: mob rule/majority rule or whatever you want to call it surely speaks up here in the case of marijuana law: 75% agree with medicinal marijuana. so those who claim to just be in support of democracy and letting the people rule (notwithstanding the hard fact we're a republic and not a democracy).... to quote one talking head on fox news, i would ask them 'what say you'?

Ann Althouse said...

In the middle: Read my update to the post, and I'll just add that if people want the medical use of marijuana to be legal, why hasn't Congress made it legal and why are they unable to press Congress to enact their desired policy? The war on drugs is a big federal effort, and individual states are disempowered from eroding it. That's what the new case said.

John: The DOJ is charged by Congress with the task of enforcing the Controlled Substance Act, and prescription drugs are approved from particular purposes, which do not include deliberate killing. There's some room for the kind of argument you're suggesting, but I predict it will fail.

EddieP said...

I don't know much about anything, so I guess that's why I don't understand the fervor of the federal government to make criminals out of sick people medicating themselves with home grown herbs!

Iron Teakettle said...

Thank you. Excellent analysis. This Court is committed to govermental interests period. Federal interests will trump state interests and both will trump individual liberty.

And if I may address Edddie P: Please go to Wikkipedia and look up the origin of the word "assassin".

Ann Althouse said...

EddieP: I think there's a legitimate concern that once there's a loophole, it will keep expanding and people will use it illegitimately. The plaintiffs in the case were very sympathetic, but I can understand the thinking of people who say it's better to have one flat rule and no excuses.

toobusyliving said...

I just stumbled on your blog....I dunno where to start with the US legal system; death penalty, incredible rate of incarceration and mind boggling litigiousness. Elected judges and unelected Presidents!!! Good Luck! It was a very sad day recently here in Canada when, for the first time, our new small "c" Conservative government held (limited) public hearings as our new Supreme Court justice was confirmed.

I spend less time than I used to in the US (my HIV staus, if ever discovered, would block me forr life) and I have had some great times in Madison...one on my way out west, experiences described here on my blog:


As for marijuana, most politicians here freely admit that the reason it hasn't been de-criminalized (as opposed to legalized) here yet is due to intense pressure from...guess who.

One of my favourite quotes about lawyers is in the article, below, written by one of the greatest columnists:


I'd love to know what you think.

Hope all is well in Madison.