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November 30, 2004

Scalia Hates States Rights

Now, I'm very sympathetic to legalizing medical marijuana, but I am thrilled that the Supreme Court is about to strike down California's medical marijuana laws as preempted by federal drug laws.

Based on reports on oral arguments yesterday, this case is likely to affirm the most radical principles of federal power established during the new deal. The question is whether non-economic activity- such as cultivation of drugs for person use -- can still be regulated by the federal government if it potentially could be sold commercially (which covers almost any personal activity). Here's the money quote from Scalia:

"It looks like Wickard to me," Justice Antonin Scalia told him, adding: "I always used to laugh at Wickard, but that's what Wickard says." He continued: "Why is this not economic activity? This marijuana that's grown is like wheat. Since it's grown, it doesn't have to be bought elsewhere."

Wickard v. Filburn, a decision from 1942, upheld Congress's effort to support wheat prices by controlling wheat production. Even the wheat that a farmer cultivated for home consumption could be regulated under the Agricultural Adjustment Act's quota system on the theory that all wheat production took place within a national market. This was the decision from the New Deal that essentially obliterated the idea that Congress had any restraints on its ability to regulate economic activity in any form. To have Scalia endorse Wickard is just a lovely irony.

The court a few years ago in Lopez restricted federal power to stop possession of a handgun within a certain distance of schools, but if Lopez ends up only limiting federal power over possession of objects, it really becomes just a civil liberties decision-- a nice fillip to the NRA types but hardly as radical as many conservative jurists were hopng.

Posted by Nathan at November 30, 2004 09:03 AM