Reefer Madness
Yale law student Will Baude offers some interesting observations on Gonzales v. Raich (the medical marijuana case discussed briefly in Up In Smoke and Up In Smoke 2) in Tuesday’s New Republic online. He contends that “the Court’s decision exposes the major flaw in its recent Commerce Clause jurisprudence: an unwillingness to take states seriously and an unwillingness to admit that the constitutionality of a federal law sometimes depends on what laws states adopt.”
Expressly, he writes that “nobody doubts that when a valid federal law and a valid state law conflict, the federal law prevails. But to determine whether the federal law is valid in the first place, state law is relevant. The federal law is valid only if it is necessary for the interstate drug laws to work, so one has to look at whether the interstate drug laws would work if California’s scheme were in place. It is possible, of course, to imagine that having a haven to grow medical marijuana would make it much easier to smuggle marijuana into the interstate market. But given that California continues to police unlawful marijuana production (seizing a record-setting $2.5 billion worth of plants last year), and given the program's relatively modest scope, the state law should have been entitled to more than being summarily dismissed.”
(For a contrary view of the question see the Discovery Institute’s Wesley Smith, writing on euthanasia in “False Federalism” in today’s National Review online.)
Whatever one’s vantage on the question of federalism, the fact remains that our long national experiment in marijuana prohibition has been an unmitigated disaster. It subsidizes terrorism here and abroad. It wastes as much as $40 billion every year that could be better spent on our national defense, on homeland security or on competing domestic priorities. It has greatly accelerated the militarization of our police forces and federal agencies, and given impetus toward the development of a pervasive and intrusive surveillance state. It devastates civil liberties. It increases crime. (More than sixty percent of our federal prison berths are filled with drug offenders, most of whom have been convicted of possession, not trafficking.) It enhances the untaxed cash flow of organized crime in our own and other nations. And it benefits no one.
Congress must find the will and courage to end this nightmare.
Expressly, he writes that “nobody doubts that when a valid federal law and a valid state law conflict, the federal law prevails. But to determine whether the federal law is valid in the first place, state law is relevant. The federal law is valid only if it is necessary for the interstate drug laws to work, so one has to look at whether the interstate drug laws would work if California’s scheme were in place. It is possible, of course, to imagine that having a haven to grow medical marijuana would make it much easier to smuggle marijuana into the interstate market. But given that California continues to police unlawful marijuana production (seizing a record-setting $2.5 billion worth of plants last year), and given the program's relatively modest scope, the state law should have been entitled to more than being summarily dismissed.”
(For a contrary view of the question see the Discovery Institute’s Wesley Smith, writing on euthanasia in “False Federalism” in today’s National Review online.)
Whatever one’s vantage on the question of federalism, the fact remains that our long national experiment in marijuana prohibition has been an unmitigated disaster. It subsidizes terrorism here and abroad. It wastes as much as $40 billion every year that could be better spent on our national defense, on homeland security or on competing domestic priorities. It has greatly accelerated the militarization of our police forces and federal agencies, and given impetus toward the development of a pervasive and intrusive surveillance state. It devastates civil liberties. It increases crime. (More than sixty percent of our federal prison berths are filled with drug offenders, most of whom have been convicted of possession, not trafficking.) It enhances the untaxed cash flow of organized crime in our own and other nations. And it benefits no one.
Congress must find the will and courage to end this nightmare.
posted by Ken at 6:26 AM
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