Sunday, December 4, 2011

Obamacare, Medical Marijuana and the tea party

No this isn't an article about whether Obamacare should cover medical pot. If you thought so, I recommend reading up on this blog's agenda and purpose. Today's U-T reports that a group known as Citizens for Patient Rights plans to introduce a ballot measure that would regulate medical marijuana in the city. The plan would include zoning, and a tax structure to pay for regulation. It all sounds very un-libertarian, so why shouldn't the tea party movement be opposing this effort?

Thinking further into the unique circumstances that led to the need for this regulation, we find that it impacts Obamacare. Some background: currently, federal law prohibits dispensing marijuana for medical or any other purposes. U.S. attorney for San Diego, Laura Duffy has promised a vigorous prosecution campaign not only against the dispensaries, but against advertising outlets that take their business. Further, the city attorney is prosecuting the dispensaries for zoning violations. So, despite state law that permits the sale of medical marijuana, the dispensaries are at great legal and financial risk. The proposed initiative is part of a campaign to normalize the local law enforcement environment for the dispensaries. In fact, almost all businesses face forms of local regulation, so this effort supports a local outcome that would be similar to regulations facing liquor stores.

I support this effort at normalization, because it sets up legal challenge to the federal law under which the feds believe they can outlaw pot sales in California. The relevant Supreme Court decision is Gonzales v Raich, in which the Supreme Court held that the federal government had the right to prevent all marijuana cultivation and use, regardless of circumstance. This broad view of the interstate commerce clause, essentially gutted the 10th amendment. Some key quotes from the decision.
Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels,33 we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to “make all Laws which shall be necessary and proper” to “regulate Commerce … among the several States.” U.S. Const., Art. I, §8. That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme.

. . .limiting the activity to marijuana possession and cultivation “in accordance with state law” cannot serve to place respondents’ activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is “ ‘superior to that of the States to provide for the welfare or necessities of their inhabitants,’ ”
The tie to Obamacare proceeds from this broad interpretation of the interstate commerce clause. It is an interpretation that we should profoundly desire to become unpopular. Overturning Gonzales v Raich in a future Supreme Court would further tea party goals of increasing individual liberty and limiting the power of the federal government. Volokh (always a great source for liberty leaning constitutional analysis) discusses a proposed bill put forward by Ron Paul and Barney Frank to repeal the federal law banning marijuana. The key insight regarding limiting federal power follows.

On the other hand, it is unfortunate that this essentially federalist bill hasn’t attracted any support from conservatives, especially the Tea party faction. After all, the bill does not require nationwide legalization, but merely leaves it up to each state to decide for itself. One of the main themes of the Tea Party is their insistence that the federal government has exceeded its constitutional bounds. The War on Drugs is a particularly extreme example of such federal overreach. Indeed, the federal ban on marijuana is responsible for Gonzales v. Raich, the Supreme Court’s broadest and most questionable interpretation of federal power so far (which I criticized in this article). Raich held that Congress’ power to regulate interstate commerce was broad enough to justify a ban on the possession of medical marijuana that had never been sold in any market or ever crossed state lines.

Every lower court decision upholding the constitutionality of the Obamacare individual mandate has relied heavily on Raich. In my view, the mandate goes even further than Raich did. But there’s no doubt that Raich makes life more difficult for mandate opponents. A political movement that is serious about constraining federal power cannot, consistent with its principles, support the present sweeping federal War on Drugs.

Normalizing marijuana regulation in the city provides a real life rebuke to the idea that we must depend on the federal government to regulate every aspect of national economic and criminal policy. It builds a coalition against the pervasive view of federal power contained in Gonzales. For that reason, the tea party movement should be supporting this initiative.

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