Regulation of Commerce Clause as per 10th Amendment

These principles are embodied in the Commerce Clause and in the 10th Amendment. The former vests power in Congress "to regulate commerce among the several states." But this case did not involve the regulation of commerce at all.

The latter says that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The power to regulate the practice of medicine is clearly a power reserved to the states respectively, or to the people..


The facts are not in dispute. Angel Raich suffers from "excruciating pain" that is relieved by inhalation of cannabis. Diane Monson similarly relies upon marijuana to relieve "a variety of serious medical conditions." When other medications failed, their doctors turned to California's Compassionate Use Act of 1996. The law authorizes physicians to prescribe marijuana for "seriously ill" patients and protects the doctors from criminal prosecution.

In August 2002, federal agents raided Monson's home and destroyed all six of her cannabis plants. Raich is too ill to cultivate her own plants. She relies upon two caretakers who provide enough marijuana, without charge, to meet her medical needs.

Two years ago, when further prosecution loomed, the two women sought an injunction. The U.S. Court of Appeals for the 9th Circuit found in their favor: Their use of marijuana under a doctor's prescription is "different in kind from drug trafficking." Attorney General Alberto Gonzales appealed. Last week's opinion in the Supreme Court opens the way for him to pursue prison terms for the two California women and their doctors. The laws of 10 other states are similarly voided.

Justice Stevens' opinion is remarkably unconvincing. He conceded that "the case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes." Even so, Stevens found these "troubling facts" irrelevant. Well-settled law, he concluded, controls a finding that the federal act is a valid exercise of federal power.

Justice Sandra Day O'Connor filed a powerful dissent. Looking back to an historic case in 1937, she cited one of federalism's chief virtues — that it promotes innovation: "It allows 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."

The majority's opinion, said O'Connor, "is tantamount to removing meaningful limits on the Commerce Clause." Applied to the facts in the case, the majority's definition of economic activity "is breathtaking." Indeed, the court threatens "to sweep all of productive human activity into federal regulation reach."

Where is the commerce in this case? O'Connor could not find it: "The homegrown cultivation and personal possession and use of marijuana for medicinal purposes has no apparent commercial character." The marijuana at issue "was never in the stream of commerce and neither were the supplies for growing it." There is "simply no evidence that homegrown medicinal marijuana users" constitute a discernible, let alone substantial market in illicit drugs.

Justice Clarence Thomas, dissenting, pointed out that Monson and Raich "neither buy nor sell the marijuana" on which they rely. The cannabis in their cases never crosses a state line. Their conduct "is purely intrastate and noncommercial." Nothing in the Constitution provides a warrant for Congress "to enact any law that bears some conceivable connection to the exercise of an enumerated power."

The defendant Monson cultivates precisely six plants for personal use. If this is the kind of "commerce" that now becomes subject to federal regulation, said Thomas, no meaningful limits remain upon federal power. "The majority is not interpreting the Commerce Clause, but rewriting it."

The case now goes back to the lower courts, but it is up to Congress to reverse the high court's opinion by reclassifying marijuana as a Schedule II substance that has "a currently acceptable medical use." Surely common sense dictates a sensible rewriting of a law that in its ruthless application makes no sense at all.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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