The Right Coast

December 01, 2004
More on Ashcroft v. Raich
By Mike Rappaport

Jonathan Adler has a good piece on the case in NRO. Here is an excerpt:

In this case, the federal government also maintains that it can prohibit the simple possession of a drug for medical purposes, even when authorized and regulated by a validly adopted state law, and even if conducted in a wholly noncommercial fashion. Such power, the federal government asserts, is necessary to maintain a comprehensive federal regulatory system for the use and distribution of drugs. Moreover, even the mere possession of drugs can “substantially affect” interstate commerce, as there is a vibrant, albeit illegal, interstate drug market.

This argument proves too much. Under the government’s reasoning there is no activity beyond Congress’s grasp — a position the Supreme Court has repeatedly rejected over the past ten years. Essentially, the Justice Department maintains that the power to adopt broad economic regulatory schemes necessarily entails the power to reach the most inconsequential, noncommercial conduct that occurs wholly within the confines of a single state. Even at the height of federal power during the New Deal, the Supreme Court never authorized an assertion of federal power as expansive as is at issue here. Should the Court uphold the assertion of federal power in this case, constitutional limitations on the exertion of enumerated federal powers could well disappear.

Under the federal government’s logic, Congress could enact an omnibus child-care statute, regulating the care and feeding of children and infants in private homes, because child care is often an economic enterprise and the federal government could assert an interest in regulating the market for child-care services. Not even the infamous case of Wickard v. Filburn, in which the Supreme Court upheld Congress’s power to regulate the planting of wheat on an individual farm, reached this far. At least farmer Filburn was engaged in economic activity — planting wheat as part of a larger economic enterprise (his farm). Angel Raich’s marijuana possession, however, lacks even this passing connection to economic activity. It was on this ground that the Supreme Court struck down federal statutes prohibiting gun possession in or near schools and penalizing gender-motivated violence. In neither case could the activity be remotely considered “economic” — nor can the local marijuana possession at issue in Ashcroft v. Raich.