If only I had my Supreme Court fetish back when the CBS show First Monday was on. That was about four years ago, and it was a West Wing-style series about the Supreme Court (with fictional justices who were somewhat based on the real justices).

Anyway, today is a day of sadness for hippies. The Court ruled 6-3 today that federal law prohibits growth of marijuana by private citizens, even in the case of medical marijuana. In Gonzales v. Raich, 03-1454 (formerly Ashcroft v. Raich, the Court held that "Congress' Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law." The infamous Commerce Clause, found in Article I, section 8 of the U.S. Constitution gives Congress the power "[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

Even though California state law, called the Compassionate Use Act, permitted "limited marijuana use for medicinal purposes," the DEA seized and destroyed all of respondent Monson's marijuana plants under the authority of the Commerce Clause. The Ninth Circuit Court of Appeals ruled that a preliminary injunction against the government would be allowed, since there was a strong likelihood of proving that the federal Controlled Substances Act "is an unconstitutional exercise of Congress’ Commerce Clause authority as applied to the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician pursuant to valid California state law."

Somehow, the U.S. Supreme Court has reasoned that Congress' power to regulate interstate commerce does apply to "intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes."

Whaa?

The Court's reasoning had to do with the compelling government interest in regulating "legitimate sources of drugs to prevent diversion into illegal channels, and strengthening law enforcement tools against international and interstate drug trafficking." The Court also maintained that "Congress' power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce is firmly stablished":

If Congress decides that the "'total incidence'" of a practice poses a threat to a national market, it may regulate the entire class. Of particular relevance here is Wickard v. Filburn, 317 U. S. 111, 127–128, where, in rejecting the appellee farmer’s contention that Congress' admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for the appellee's own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself "commercial," i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

So, if I'm producing killer robots for my own use, Congress may regulate my personal, non-commercial production of killer robots if "failure to regulate [the production of killer robots] would undercut the regulation of the interstate market in [killer robots]." I actually like this argument, since it isn't a "drugs are bad" argument, but rather a positive argument based on non-moral reasoning about Congress' ability to regulate interstate activities.

Justice Scalia concurred in the outcome of the judgment, but filed an opinion in which he says that he came to the same conclusion not because of Congress' Commerce Clause authority, but its "Necessary and Proper" clause authority, which is also to be found in Article I, section 8 of the U.S. Constitution, where Congress is given the power "[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Scalia gives us a little lesson about the history of the Commerce Clause, and how the third element of Congress' commercial regulation authority comes not from the Commerce Clause, but its need to enact laws that are "necessary and proper" for allowing it to regulate interstate commerce, including "activities that substantially affect interstate commerce," like the local production of wheat, marijuana, or killer robots. If my private activities can be shown to substantially affect commerce elsewhere in the country, then my activities can be regulated.

Even if marijuana were legal to grow, buy, and smoke, it would still be controllable, and the argument would be the same. Good job, Supreme Court, for not being self-righteous in attempting to keep our kids safe from drugs! (And I'm serious about that.)

This opinion changes very little in the way of federal drug controls. Those have always taken precedence over state drug laws, and if a state permits marijuana use and a federal law prohibits it, the federal law wins. The jury is still out on federal killer robots legislation.