US- Ashcroft v. Raich and States Rights

[Pinch]

The decision in the case of Ashcroft v. Raich, tried last fall before the US Supreme Court, was originally expected as early as February, but has since been delayed for reasons unknown. The decision has been imminent for coming up on two months now, and since I'm bored and stoned I thought our readership might be interested in a little idle speculation from perhaps an idealist perspective.

Chief Justice Rehnquist has been on something of a states' rights bender lately. In the recent cases of US v. Lopez and US v. Morrison, the Supreme Court respectively struck down a federal gun law and a law creating a federal cause of action for female victims of violence. The Tenth Amendment renders any powers not explicitly afforded the federal government by the Constitution (and over those they have totalitarian control) to the states in an attempt to ward off federal consolidation of power and create a more provincial structure in which state governments could allow their constituency to practice regional lifestyles which another state may dislike, and thus the views of a particular region couldn't be thrust upon another through exploitation of federal control.

When Congress originally attempted a federal ban on marijuana, the Marihuana Tax Act of 1937, they tried to justify it under the Commerce Clause by banning the possession of marijuana which was not sealed with an unobtainable tax stamp, because obtaining the stamp required the self-incriminating act of presenting the unsealed marijuana. This was ruled unconstitutional for violation of the fifth amendment by the US Supreme Court in 1969. Then came Nixon, placing regulation of all drugs directly under federal control with the Controlled Substances Act of 1970.

Since that time, the clash of the Controlled Substances Act with the issue of states' rights has become painfully clear. Federal agents storm the homes of individuals participating in medicinal use of a substance which the state government deems legal for such purposes. The question of what constitutional basis the federal government has to regulate controlled substances is likely the most pressing in Ashcroft v. Raich, and if the court chooses to take the route of US v. Lopez and US v. Morrison and relegate controlled substances regulation to the states, it would mean that some steps should be taken to prepare for the decision in advance of its rendering.

I am curious if the court is currently working out a deal whereby all states would institute a uniform (or near-uniform in the case of medical marijuana) rearchitecting of the Controlled Substances Act directly into state level legislation. This would allow states to micromanage regulation of controlled substances as they saw fit, thus allowing a provincial decision model. States wishing to legalize certain substances would be allowed to do so at their own discretion.

That's not to say that, hypothetically, if the court is planning to do this, that the federal government couldn't bribe (or blackmail) the states into instituting federally acceptable drug legislation in exchange for certain types of funding, as they have in the case of the drinking age.

Medical marijuana is a situation that should lead any sensible person to question how much power the federal government really should have and is allowed to have per the Bill of Rights. It will certainly be interesting to see if per chance there is a sudden flurry of drug regulation passing through state legislatures...




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