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The Cato Brief

The Cato Institute submitted this amicus brief in Ashcroft v. Raich, which is notable for two reasons: Its author and its position.

The Cato Institute submitted this amicus brief in Ashcroft v. Raich, which is notable for two reasons: Its author and its position.

First, its author.  A lot of people think that one or more the "five friends of federalism" will split due to the subject matter being regulated, namely, marijuana.  The critics reason that drugs are viewed negatively, and therefore, the conservatives will not want to be associated with them: The Court will “just say no” to Raich.  I think this view is mistaken on its face since United States v. Lopez (striking down federal law criminalizing simple possession of firearm within 1,000 feet of school) dealt with guns in schools; Jones v. United States (construing federal arson statute narrowly, to not cover the burning of a private residence, to avoid federalism question) dealt with arson, and United States v. Morrison (striking down federal cause of action for gender-motivated violence) dealt with rape.  I hope no one here would argue that medicine, (which is what Raich is using the marijuana for) is worse than guns in school, arson, or rape.  Indeed, I challenge anyone here to state that marijuana for personal use is worse than rape, arson, or potentially preventing another Columbine.

In any event, the author of Cato's amicus brief is the conservative's conservative, Professor Douglas W. Kmiec.  If he can put aside his views on drugs in the name of enumerated powers, I am pretty sure that Rehnquist, O’Connor, Scalia, Kennedy, and Thomas  can.  Thus, I think his writing the amicus briefs gives a lot of credibility to Raich's position.  It should also help us recognize that the federalism five might not put a disdain for drugs above principle.

Second, its position.  We can honestly disagree over whether Congress has authority to regulate the non-commerical, intrastate use, marijuana.  But we can not honestly disagree that this power, if it exists at all, is at the borderlands.  It is a very close call.  But who should get the benefit of this close call - Congress, or the States?  I think the Court can could craft a rule to deal with these situations.

The court has rules of constitutional interpretation that seek to protect our constitutional system of separated powers.  For example, the Court will construe federal laws narrowly (but not absurdly) to avoid a constitutional question.  By construing the statute narrowly, the Court avoids the unpleasant business of telling Congress it violated the Constitution.  The Court should adopt a similar rule in federal-state conflicts.  After all, our system of government has two unique, and equally indispensible features: Separation-of-powers and federalism.

We can disagree over the categorical rule regarding what governmental unit should get the benefit of the doubt.  Some would argue that since ours is a government of enumerated, and therefore limited,  powers the balance should always tip in favor of the states.  Others (me, for example) would first ask what subject is matter is being regulated.  If it's civil rights, then I say resolve the conflict in favor of Congress. 

States have a horrible record protecting civil rights (can we say fire hoses, the 14th Amendment, and section 1983?), and thus, close cases such as Katzenbach v. McClung (Congress can require in-state restaurants to serve blacks since those restaurants obtain their food from other states) and Heart of Atlanta Motel (holding that Congress may require in-state hotels to accomodate blacks, since hotels specialize in serving people moving in interstate commerce) should stand.  We can't trust states to treat blacks with dignity and respect, and thus, Congress should get the close calls when ensuring race equality under Article I.  But Raich is different.

In Raich, the court need not create a categorial rule governing all federal-state conflicts.  Rather, it needs to draft merely a sub-rule.   Namely, federalism questions involving issues over which the States have traditional expertise should be resolved in favor of the states.  This is what Professor Kmiec argues in the amicus brief.  His first sub-heading reads:  "The Compassionate Use Act Is Within The Province Of Traditional State  'Expertise' Over Health Care."  In other words, California has not stepped into an area about which it's ignorant or incompetent.  Prof. Kmiec continues:

Justices Kennedy and O'Connor affirmed in Lopez that in areas of traditional state concern, where states "lay claim by right of history and expertise," the federal government ought not legislate "beyond the realm of commerce in the ordinary and usual sense of that term."  United States v. Lopez, 514 U.S. 549 (Kennedy, J., and O'Connor, J., concurring). The Compassionate Use Act, which allows for the limited use of a controlled substance under a doctor's care (Cal. Health & Safety Code 11362.5), fits squarely within an area of state expertise. Protecting the health and safety of citizens has been "primarily, and historically, ... [a] matter of local concern."   For this reason, this Court has acknowledged that the local provision of health care is a "subject of traditional state regulation."  Moreover, this Court has stated that "the direct control of medical practice in the States is beyond the power of the Federal Government."   It is deep-seated and "elemental" that states retain "broad power" relating to the "establish[ment] and enforce[ment] of standards of conduct within its borders" that facilitates its citizens' health needs. This broad power "extend[s] naturally to the regulations of all professions concerned with health."

Here, the State of California has exercised its historic power over local health and welfare in a deliberative and circumspect manner. In 1996, California voters, by an overwhelming 56% majority (greater than the vote percentage received by either Presidents Clinton or Bush in the state - and, for that matter, most other elected officials), approved the Compassionate Use Act as Proposition 215. The arguments for and against the proposition were clear and pointed. Doctors and nurses reported witnessing firsthand the medical benefits of marijuana, especially in respect to cancer patients. These medical professionals described how, because of side-effects of certain cancer treatments (for example, nausea induced by chemotherapy), one-third of seriously ill patients discontinue those treatments despite a 50% chance of improvement. By contrast, they argued that when standard anti-nausea drugs fail, marijuana ingested in food or by smoking is often the only medication that eases patients' nausea, permitting continued treatment. (Brief at 4-5, citations omitted).

Moreover, California did not decriminalize marijuana.  Had California done so, Raich might be a much different case.  Instead, Prof. Kmiec continues:

In approving the Compassionate Use Act, Californians balanced these competing concerns, keeping in place tight state controls and prohibitions on marijuana outside the heavily regulated medical context. Mere possession of one ounce or less remains a crime, for example. Possession with the intent to sell any amount is a felony. Non-medicinal cultivation of any amount is a felony. Sale, transportation, or distribution of marijuana is a felony under. There are also provisions specifically outlawing: the sales to minors, and the sale or manufacture of marijuana paraphernalia.  Driving privileges may be suspended for marijuana violations,  and the forfeiture of vehicles is provided for upon conviction for large amounts. 

The state judicial construction of the Compassionate Use Act has been equally circumspect. First, the California Supreme Court rejected claims that the Act created an immunity from arrest, either expressly or impliedly. Rather, it recognized a limited immunity from prosecution, which allows a defense at trial, and permits a motion to set aside an indictment or information prior to trial.  Thus, a defendant may raise his or her status as a qualified patient or primary caregiver as a defense at trial or in moving to set aside an indictment or information prior to trial. The burden of proof as to this affirmative defense is allocated to the defendant. 

In similarly circumspect fashion, the court reasoned that even with a physician's recommendation or approval, a patient may not possess an unlimited quantity of marijuana under the Act. Rather, the quantity possessed, and the form and manner of its possession, must be reasonably related to the patient's current medical needs.

In reaching those conclusions, the state court noted that law enforcement authorities had given their support to the proposition because they did not "want to send cancer patients to jail for using marijuana" (id. at 1546); but at the same time, the Act carefully provided that "[n]othing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes." (Brief at 5-7, citations omitted).

Thus, California has not opened the floodgates of marijuana.  Rather, we have said that people may, but only under a doctor's supervision, use marijuana for specific medical conditions.   

Kmiec et. al cut a nuanced, but clean and followable, path, saying to the Court: "When States use their traditional police power over non-commercial items, and do not allow these non-commercial items to be injected into the stream of commerce, any close constitutional questions should be resolved in favor of the states."  This approach would still allow Congress to use its commerce power to regulate civil rights, banking, and securities, but leave to the states some areas over which it's best equipped to deal and experiment with.

Instead of the system we have now, where Congress may regulate everything it wants, we would actually have a balance.  Congress would have power or some things, the states power over others.  The Court should use as much energy ensuring a separation between Congress and the States, as it does ensuring separated powers between the three branches of our federal government.

The Court should give California the benefit of the doubt.