See-Dubya Weighs in on Yesterday’s Medical Methamphetamine Ruling
Sorry I’ve missed some of this debate. I’ve been busy taking down a little project in my backyard. But here I am so lemme tell you why I’m so bummed about the Raich decision. It’s going to cost me a bomb.
My buddy Munir, he had this great idea. Why should we have to pay California’s inflated power costs when we can make our own electricity? Summer’s coming on, and those brownouts are coming around again, but the two of us were going to be sitting pretty.
It was kind of tough building our own light-water reactor. You have to know exactly what you’re doing or you could really screw things up. But Munir works for Berkeley at Livermore so he’s pretty good with this stuff. He knows when it’s okay to cut corners, and when you need to break out the double roll of Owens-Corning insulation. Besides, this was a pretty small one—just enough to send power to our houses. It didn’t reach the California power grid at all. We were ready to generate our own power, on a completely self -contained system that didn’t affect interstate commerce.
I was really excited about this arrangement—so much so that I found it difficult to focus. I’ve been diagnosed with ADHD, you see, and I got a prescription for Desoxyn a while back. But that’s just too expensive, especially when—let’s face it—I can cook up my own. A little phosphorus, some Advil Cold and Sinus, some boiling gasoline for solvent, and presto, I’ve got my own supply of the key ingredient in Desoxyn, which is methamphetamine.
Meth, by the way, is a Schedule II drug under the federal Controlled Substances Act. That means that unlike marijuana, even though it is tightly controlled, it has actually been recognized to have some medical benefit. Sure, I tried the prescription stuff. But in the same way that medical-marijuana patients often claim they can’t get relief through Marinol, the non-intoxicating prescription marijuana derivative, the pharmacy’s ADHD stuff just didn’t do it for me. Nothing else gives me that extra-sharp focus like good old raunchy bathtub crank.
Like with the power plant, though, it’s okay. I mean, if the federal government can regulate what you make in your own poorly-lit basement lab cobbled together with stolen hospital equipment, well, we might as well just give up and start singing the Internationale cause the Commies will have won. In any case, I was only making enough medical methamphetamine for myself, and it was never entering the stream of commerce.
Well, mostly for myself, and for a small co-op of tattooed Aryan-Nation bikers, all of whom were by some strange coincidence also afflicted with ADHD. They were always glad to let me salve their troubled minds, especially since I would never charge them for it. That would be commerce, I explained. And they would nod sagely in their wild-eyed, road-weary way and be gone in a roaring cloud of dust and profanity, taking their vials of non-commercial “homeopathic Desoxyn” with them.
Anyway, I get easily distracted. I was telling you about our new nuclear power plant.
We just knew Raich would go through, and we could bring this creation online. The Constitution’s interstate commerce clause would no longer apply to us, and we would no longer have to worry about another one of those busybody federal agencies, the Nuclear Regulatory Commission, whose founding legislation is justified by…The Commerce Clause!
Which means, of course, that they couldn’t hold us to their fascistic licensing requirements had Raich gone through. If they didn’t like the way we stored our waste plutonium (padlocked root cellar, lined with concrete so no groundwater leakage, sign that says KEEP OUT DANGER PLUTONIUM STORAGE!!!),well– tough poop, bureaucrat. Who died and made you Hans Blix, anyway? Scalia might say of our arrangement (as he did in his concurrence) that this stuff is “one step away from commerce” but that’s silly; if you can’t trust people to handle thermonuclear explosives or addictive drugs responsibly, then you just can’t trust people!
To be honest with you, I thought this whole thing was a little too easy. I mean, it’s amazing to me that all these proudly hard-hearted libertarians, who are quite willing to let people die without health insurance, started suddenly caring about the suffering of cancer patients. I mean really, many of these guys were the same folks who were quite opposed to federal intervention in the hideous starving of Terri Schiavo. When that crowd started laying a guilt trip on conservatives about medical marijuana and cancer patients, I thought, what’s next, will they ask us to do it “for the children?”
Laying a guilt trip on conservatives is never the best strategy (especially coming from a libertarian). They’ll just come back with some BS argument about how common sense dictates that marijuana and wheat are not the same thing, and that drawing a slippery slope between them is an exercise in hyperbole. As is much of the anti-drug-war propaganda, but that’s a post for another time. I’ve got a cooling tower to disassemble. And the feds are probably going to get all finicky about my smallpox cultures, which are personal interest only, no commerce, believe me. Well, my personal interest and that of this little co-op, Achmed, Munir, Waleed…
Very funny.
This argument reminds me of the parade of horribles you always hear about when you suggest that there is no mysterious right to privacy that means whatever 5 of 9 unelected judges say it means. The assumption is that the people can’t be trusted — they’ll pass any old damn law. “Why, if there isn’t a roving warrant for judges to invalidate laws they don’t like, then they’ll pass a law that says that consensual marital sex may be videotaped and recorded by the authorities!!”
My response: while you do get silly state laws from time to time, it’s easier to change them than it is to change immutable “constitutional principles.”
Analogously, this post details the parade of horribles that would inevitably occur if the federal government didn’t have the all-important power to control every aspect of our lives. The assumption is that the States can’t be trusted — they’ll allow any damn thing to happen within their borders.
We can’t control everything through structural rules. We have to trust people sometimes. If the people (through their state governments, even) allowed terrorism or nuclear waste to run rampant and uncontrolled, we would have bigger problems than a lack of an overpowering Commerce Clause.
By the way, the point is not a slippery slope between wheat and Mary Jane. That is a policy issue. The Commerce Clause issue has little to do with policy and everything to do with the federal government’s power to invade the private sphere of activity.
Patterico (756436) — 6/7/2005 @ 8:57 pmOh, come on. So you’re willing to let the states regulate nuclear power plants? Ready to let ol’ Horacio Vignali bid on the construction of a new uranium-fired dynamo in your backyard? Or how ’bout Arkansas–are you okay with letting some Clinton-appointed timeserver write the regs for transporting the waste rods around the state?
An open drug scene or a nuclear spill in the next state over damn sure affects interstate commerce.
I’m with Scalia in this. Some things it just makes sense for the feds to regulate. The nation has an interest in controlling nuclear material and in fighting illegal drug–an interest that clearly applies in these cases but that simply can’t be justified over someone’s wheat crop. I wish Wickard had been repealed and a new distinction carved out for these categories. But I’m not any less free today than I was before this case was decided.
See Dubya (13ab1e) — 6/7/2005 @ 11:10 pmI’m too lazy to scour the Constitution right now, but there has got to be a better fit for uranium control than the commerce clause. And if there isn’t, we should amend the Constitution to add one, not extend the commerce clause to cover everything from uranium to wheat and weed.
Xrlq (717f9d) — 6/7/2005 @ 11:37 pmWell I’ve got nothing but time, Xrlq!
I would suggest this fairly obvious one: Article I, section 8, clause 1:
This means Congress has the primary duty to “provide for… the general welfare of the United States.”
I take this as essentially the “FEMA” clause: if some activity is dangerous to the entire nation, either directly (for example, through contaminating the water supply with Plutonium) or indirectly (for example, if a nuclear meltdown of an unregulated reactor might possibly cause terrible damage to interstate commerce, the same way 9/11 did), I think you can make a pretty good case that the feds can regulate that activity.
However, you would have quite a difficult time, I think, showing that a few people growing marijuana that is not for sale under the eye of the state of California would cause some harm significantly greater than the harm already caused by the tens of thousands of people who are growing marijuana illegally and for a profit all across the United States. It’s like arresting someone for littering in a toxic waste site.
Dafydd
Dafydd (df2f54) — 6/8/2005 @ 12:07 amThe General Welfare?
How is that more narrow than commerce? Not that I’m at all defending the absurd extensions of the commerce clause, but I think “the general welfare” is even less rigorous. (The one clear case where the Supremes shut down a Commerce Clause understanding–Lopez in 1990–suggests that limits exist to “interstate commerce”. I think most of us agree that interstate commerce is fair game to regulate, but we draw very different lines around what makes for “commerce” or what makes commerce “interstate”.)
I would argue that the illegal drug trade–and of course the nuclear cases–implicate both the general welfare and the common defense.
Well, I would argue it, but I can’t actually argue it right now.
See Dubya (13ab1e) — 6/8/2005 @ 12:23 amHow about some discussion on a real Methamphetamine problem: the importation of Meth from Mexico and the failure of the Feds or states to stop it:
http://flapsblog.com/?p=312
The Bush Administration is not enforcing the immigration or the Drug laws and Flap’s patience with them is waining.
Flap (bef92f) — 6/8/2005 @ 6:09 amDafydd, the problem with your basis under the Tax and Spend Clause is that the power is to tax and spend for those purposes. Not to regulate under those purposes. So the tax and spend clause doesn’t get you anywhere.
See Dubya is right, and this is precisely again, and I’m going to keep hitting it over and over again to the consternation of all the strict commerce clause folks, why Scalia was right on about the N&P. Because surely, regulation of Interstate Commerce in Nuclear materials includes the N&P power to regulate wholly intrastate Nuclear non-economic activity.
Joel B. (3243ec) — 6/8/2005 @ 6:33 amI think a decent case can be made that regulating weapons-grade uranium is ancillary (read: necessary and proper) to Congress’s power to provide for the common defense and whatever other part of the Constitution prohibits states from raising their own armies. As to the commerce clause, all it should do is ensure that whatever kinds of uranium are allowed, California has to allow Nevada uranium to compete with California uranium on equal terms.
Xrlq (717f9d) — 6/8/2005 @ 7:12 amXrlq, I must have missed the Common Defense Clause of Article I Section 8, and beware, because if you say Common Defense of the tax and spend clause, then, come right back to…that’s right general welfare. Anyway, a state wouldn’t be raising an army, it would be the intrastate act of an individual. Again, the tax and spend power is the power, granted for certain purposes, and if we go common defense, than uber-broad is the promote general welfare.
Joel B. (3243ec) — 6/8/2005 @ 9:40 amLook, folks, general welfare in Art. I, Sec. 8 means the things listed after it; and those things only.
In case you don’t realize it, the only constitutional ban on drugs was the alcohol amendment, and that one was repealed. Seriously, the Harrison Narcotic Act and its successors are all unconstitutional as long as prohibition repeal exists. Logically and morally there is no difference between marijuana and aspirin. Dose and route make the medicine. There is nothing sacred to calling something of no medicinal use; since, given the proper research, you can show a medicinal use for almost every chemical you can make or extract. The dangers of controlled substances are overblown, but do exist. The proper thing to do is address intoxication; not simple use, manufacture, or possesion. In case you didn’t know it, Benadryl is just as intoxicating as any controlled substance; and it is just as dangerous as any controlled substance when you are intoxicated from it. Nevertheless, used with the proper dose, it has a medicinal use.
The rationale behind the Harrison Narcotic Act was simply to create criminals for the purposes of limiting liberty. High means intoxicated, like being drunk; not euphoric.
The federal drug laws that prohibit manufacture, sale, use and possession need to be repealed. The laws directed at importation are fine. Those that directly address interstate commerce are fine. The commerce clause does not apply to intrastate commerce. Once the federal laws are limited to their proper focus, outrages like the medical marijuana ruling become moot.
Charles D. Quarles (593219) — 6/8/2005 @ 12:16 pmJoel, you may be right, but in that case, the federal government ought to admit it doesn’t have that power, and either trust the states to do the right thing, or make its case to the American people for a constitutional amendment. This point is so painfully obvious even Julian Sanchez seems to grasp it.
Xrlq (e2795d) — 6/8/2005 @ 5:51 pmXRLQ–
Actualy, a long as they don’t regulate my wheat, I think the status quo works pretty well. We should continue to seek political, not constituitional, rollback of the commerce clause where we can.
See Dubya (c83831) — 6/8/2005 @ 6:14 pmI view all the arguments about what should be federal powers and what should be state powers as being totally arbitrary nonsense. I advocate completely getting rid of states, leaving only federal and truly local levels of government.
Everyone I mention this to is horrified by the idea, even though no two of them can agree on what the state powers should be, and none of them can explain why we shouldn’t have more states (say on the order of the size and population of the cantons of Switzerland) or fewer.
As long as we are stuck with states, let’s take the rule of law seriously and follow the constitution; or if we don’t like it, we should change the constitution.
LTEC (2b9ffe) — 6/8/2005 @ 6:25 pmXrlq,
It will be a great day indeed when the federal government admits what powers it has and what powers it doesn’t. Unfortunately, the Congress has a knack for passing some blatantly unconstutional laws, that end up getting ok’d by the Supreme Court (cough) BCRA (/cough).
But here’s the thing even if the federal government did that, I think the Uranium example and yes even Medical Marijuana is within Congress’ power. I know it isn’t hip in the blogosphere to say so, but I just do, and as I’ve said it comes back to the N&P clause of Interstate Commerce. If Congress wishes to enact a comprehensive interstate commerce plan it may, and through N&P reach intrastate non-commerce, but economic activity.
I was thinking about it as well about your question for examples of what the 10th amendment would still do, and how enumerated powers might limit the feds. I think the answer is, actually quite a few things. IF the Feds choose not to comprehensively regulate something they may not step into the field. So, if the Feds choose not to regulate the interstate commerce in Controlled Substances, they may not regulate possession of marijuana at all. It is only when the step into the interstate regulation field does a power to regulate possession and personal production attach.
Joel B. (3243ec) — 6/8/2005 @ 7:01 pmWe once had a nationwide, prefectly legal and Constitutional Prohibition. We enacted it using an Amendment to the Constitution to ban ethanol. The ban on marijuana was merely an Act of Congress. For California and 9 other states, this was not enough. In California, a direct vote of the people was held and we decided (I didn’t vote for it) to make our own law allowing non-commercial cultivation and use.
There are two issues – one is the policy wisdom of Californians’ decision – certainly agruable but already decided by the People of this state. The other issue is whether the Constitution (and specifically the Bill of Rights) gives the federal government the express power to preempt that law. On the latter, I am completely convinced that SCOTUS made the wrong decision. I am extremely disappointed by Scalia. Maybe his critics are right – his originalism is only a mask for his own paleoconservative prejudices.
On the other hand, Justice Thomas nailed it – with this decision, what can’t be regulated or prohibited by the Federal government?
Whitehall (de745f) — 6/9/2005 @ 5:16 pm