Marijuana and the Commerce Clause

This clip from the 1938 movie "Reefer Madness" shows the prevailing view of the time - that the Federal government had no power to regulate marijuana as "there is no interstate commerce in it."  This clip can be used as a thoughtful introduction to Gonzales v. Raich since the Supreme Court came to the opposite conclusion. States continue to legalize marijuana, for medicinal purposes or otherwise, despite Supreme Court affirmation of Congressional criminalization. Is this a state or federal matter?

Foibles of Federalism; The Legal/Illegal Environment of Cannibus

Marijuana is now either legalized, legalized for medical use or decriminalized by state law in nearly one-half of the United States. However, it is still illegal under federal law. The US Supreme Court determined in Gonzales v. Raich that the powers granted the federal government in the Commerce Clause support federal legislative authority to act. The years since that case have seen troughs and peaks of federal enforcement, promises not to enforce and those promises broken.  Now as businesses begin the  task of selling marijuana under state law, they discover that banks are unwilling to handle their money. Fearful of running afoul of federal law and facing disciplinary action or worse, federally licensed banks are refusing to handle marijuana money that is legally obtained under state law but are illegal proceeds of a crime under federal law. The DOJ recently promised to give banks guidance on how to legally handle this money without risking enforcement action. Banks are skeptical. These are the kinds of policy promises that have been broken before and, of course, are non-binding on future administrations who can prosecute past actions.  So it looks like marijuana dispensary entrepreneurs will be burying a lot of cash in coffee cans in their backyards.  The more things change . . .

Warning: This video includes the word "f**k"


Is this how legal recreational use of marijuana will affect businesses?

Law and Politics... and Law.. and Politics

What is the true nature of Law?  Isn't it all just a big discussion?

Click here or on the image below to watch the video.

Big Business Wants More Federal Regulation ... of Tort Rights

In the video below, Former Senator and "Law and Order" actor Fred Thompson gives us a primer and description on the virtues of Federalism and then takes a stand against those who are trying to nationalize every little activity.

Do you think that Fred was talking about the industry backed Product Liability Reform bill that would have limited tort recovery by injured victims of defective products that passed Congress and was vetoed by President Clinton?

Or perhaps he was referring to the industry backed "Personal Responsibility in Food Consumption Act" that would have placed a federal government bar on certain food injury cases This bill has been passed twice by the House of Representatives.

Or maybe Fred was thinking about the industry backed challenge to a California law against slaughtering non-ambulatory animals on the basis that the Federal Meat Inspection Act preempted state regulation.

Or Fred could have had in mind the industry backed claim that Federal law preempted state tort actions by victims of a drug company's failure to warn. Or maybe it was the industry backed claim of federal preemption of state tort claims for injury by medical devices.

The more I think about it, I think that is exactly what Fred must be talking about.

 

Will The Supreme Court Hear the DOMA case?

The Defense of Marriage Act (DOMA) has, for the second time, been declared unconstitutional by a Federal Court of Appeals.  The recent ruling by the Second Circuit in NY follows a decision from Spring 2012 by the First Circuit Court of Appeals in Boston striking down the provisions of DOMA that prevent persons, legally married under state law, from being recognized as married for Federal purposes.  Cert petitions are presently pending in the Supreme Court.  Recently, Justice Ginsburg opined that DOMA would be before the court for consideration this term.

What are the practical implications of DOMA? Why is this relevant? Here is an example:


First Circuit Ruling:

More Medical Marijuana Despite Federal Prohibition

As of October 1, 2012, Connecticut has become the latest state to thumb its nose at the federal government and pass a medical marijuana statute. That makes 18 states plus Washington, D.C. that have adopted statutes allowing possession and use of marijuana in limited medical circumstances despite the fact that such action is illegal under federal law.  After this November's election, half of all the states may be in conflict with federal law as seven states have medical marijuana ballot questions pending. Students may see that an inevitable clash of government powers looms and look to the Supreme Court for a solution.  The problem is that the court has already ruled in favor of the federal government in Gonzales v. Raich.  So what happens when the states act in contravention to federal law?  Isn't federal law supreme when there is a conflict? The last time the states refused to accept a Supreme Court decision (Brown v. Brd. of Education) there were riots in the streets and the US Army had to be called out.  Certainly, this conflict is not likely to result in that kind of drama. But something has to give at some point.

In November, Colorado (Oregon and Washington, also) faces a ballot measure legalizing the sale and possession of small amounts of marijuana - without medical need. Legal medical marijuana dispensaries there are concerned that passage of the law will bring unwanted federal enforcement. Ultimately this legal dilemma cries out for a political solution.  This is beyond the powers of the courts.

State v. Federal Power: Conflict Over Legal Marijuana Dispensaries

Under the Supremacy Clause of the Constitution, where state and federal law conflict, the federal law is supreme.  However, that presumes that the federal government is acting within its enumerated powers rather than intruding on the police powers of the states. As discussed previously in this blog, over two hundred years has passed since the ratification of the Constitution and we are still trying to figure these issues out.

Recently, the Departmentof Justice has sent leters to marijuana dispensaries in Colorado that are located within 1000 feet of schools, they they must immediately shut down or face federal prosecution. The dispensaries are selling marijuana legally under Colorado state law and operate out of facilities licensed and permitted by the municipalities in which they are located. This is another symptom of an ongoing state vs. federal conflict that shows little sign of being resolved anytime soon - and which makes for an outstanding opportunity to discuss the parameters of state and federal power in class.

Federal v. State Powers

This may not be the right video for every class, it can help in the right spots.

Featured Case: Gonzales v. Raich

Angel Raich and Diane Monson, suffering from serious medical ailments, were being treated with marijuana under the California Compassionate Use Act.  Monson grew her own marijuana.  Raich relied on two local men to raise marijuana for her. The plaintiffs actions were legal under California law but ostensibly illegal under federal law. The plaintiffs instituted an action for declaratory judgment against the federal governmnet seeking a ruling that that federal regulation exceeded the Commerce Clause power. The Supreme Court ruled in favor of the federal government relying on Wickard v. Filburn analysis:  "Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce."

Beyond the obvious Commerce Clause / Enumerated Powers / Federal v. State Power issues, I think that there are 4 other really interesting aspects of this decision that can be explored in class:

1. Ten years before, the Supreme Court's decision in US v. Lopez purported to draw the line for a more limited use of the commerce clause power.
"To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do."
What are we to make of the Commerce Clause power now?

2.  Justice Scalia (voting with the majority for limited federal power in Lopez) filed a concurrence in Raich.
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.
This is undoubtedly a broad view of federal regulatory power.  All this despite Scalia admitting in oral argument, "I used to laugh at Wickard."

3. At the time of the Raich decision, 9 states had medicical marijuana statutes. Fifteen states plus DC now have such laws and 10 more states have legislation under consideration. Are the states thumbing their noses at the feds?  Do the feds care? After announcing that Federal resources would not be used to purusue marijuana use where it was legalized by states, the DOJ seems to be rethinking its position.

4. What do we do with other activities associated with marijuana use - like advertising. Will the FCC take action against broadcasters who run ads for dispensaries? Would a new executive administration be more aggressive in enforcement of federal law?

A variety of images are available at Voices of American Law site.  Plaintiffs Monson and Raich:

National v. State Power - Little Rock

In honor of Martin Luther King, Jr. Day, I am posting a video clip related to the Civil Rights Movement. This clip from the PBS documentary "Eyes on the Prize" describes the Federal-State conflict arising out of attempts to enforce the decision of Brown v. Brd. of Education in Little Rock, AR.  The clip is a bit long (9:57), but I think it is important for students to see.  Not only are students generally unaware of the potential for Federal-State conflict, but I find that nearly all of them are entirely unaware of this event in American history.  I consider this video to be a part of the work to assist students in becoming educated and engaged citizens - something that I believe is an important part of BLAW courses.

Commerce Clause - the 1938 View on Marijuana Regulation

This clip from the 1938 movie "Reefer Madness" shows the prevailing view of the time - that the Federal government had no power to regulate marijuana as "there is no interstate commerce in it."  This clip can be used as a thoughtful introduction to Gonzales v. Raich.