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Journal pudge's Journal: Pot Prosecutions 17

Journal by pudge

Lots of people are complaining about the Supreme Court decision allowing the feds to prosecute people for pot, even if the state laws say they can do it.

This is not a drugs case. This has nothing to do with whether you think pot should be legalized. Everyone on the Supreme Court agrees that is a matter for the legislatures to decide. The question in this case was *which* legislatures decide it: state or federal.

The case is fairly simple:

A. The federal government has the right to regulate interstate drug distribution, under the interstate commerce clause.
B. The federal government has the right to restrict manufacture of drugs, as a means to help prevent distribution, under the Necessary and Proper clause.

The court has no real disagreement on these points. The next point is the tough part:

C. It is not possible to distinguish between manufacture for interstate, or intrastate, distribution, and as such, if you remove their power to prohibit manufacture for intrastate distribution, you effectively destroy their power to prohibit manufacture for interstate distribution.

Rehnquist, Thomas, and O'Connor dissented, not buying this end-run around states' rights. The liberals and Scalia found in favor of the feds.

This discussion was created by pudge (3605) for no Foes, but now has been archived. No new comments can be posted.

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  • So did O'Connor writing the dissenting opinion.

    • I wasn't shocked ... I expected it. Scalia is strict in some ways, but he also tends to view Necessary and Proper pretty broadly. O'Connor's dissent surprised me a little.
      • I haven't read the actual opinion yet. If you find a copy floating about(no one has submitted this to YRO or politics yet?), mind updating the journal?
      • Interesting alignment of justices on this case to be sure (not as weird as if one of Stevens, Souter, Ginsberg, or Bryer had sided with the minority).

        O'Connor doesn't really supprise me considering her rulings on several other states right cases, especially ones involving the commerice clause.

        I do kind of wish the decision had gone the other way, not so much for what the results in this specific case would have been but becuase I tend to side with the states rights side in most modern federal vs. state ca
        • I generally take Scalia's side on this: yes, the states have a valid concern here, but you neuter the federal power to prevent all manufacture of pot if you don't let them enforce the law against manufacture for intrastate use.

          It's why I say Scalia is more a strict constructionist than a conservative. There's nothing in the Constitution that says, "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ... so long as it is not inconvenient for the States."

          Th
          • It's why I say Scalia is more a strict constructionist than a conservative. There's nothing in the Constitution that says, "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ... so long as it is not inconvenient for the States."

            Not necessarily. Remember that the Federal/State split used to favor the states more. There is nothing in the Constitution that says the convienience of the Federal government should be considered when deciding the scope of Federa
            • There is nothing in the Constitution that says the convienience of the Federal government should be considered when deciding the scope of Federal power.

              I realize that, but the point is that states are not directly considered in the equation. If the power is deemed necessary and proper, it is Constitutional. Period. The degree to which it abridges state authority is, essentially, a nonfactor (except where explicitly indicated).

              The problem is this argument has been used to uphold some rather dubious ap
        • I agree with you.

          While Scalia's argument was well-reasoned, I felt, I thought it was a little overreaching to suggest that because someone could (illegally) bring a legally-used drug from California to another state all of California's inner-state operations fall under the purview of the federal government. California is not intending or sanctioning such activity, and just as Scalia once reasoned that scanning homes for internal heat signatures from the street without a search warrant was at the time unc

          • I thought it was a little overreaching to suggest that because someone could (illegally) bring a legally-used drug from California to another state all of California's inner-state operations fall under the purview of the federal government

            But that's not really the argument. The argument is that they fall under federal purview because the power to restrict manufacture for interstate distribution is indistinguishable from the power to restrict manufacture for intrastate distribution.

            I feel he could have
            • Sorry, I forgot to wipe that last bit before posting; what I was trying to say was that I think that the Supreme Court decision will push the medical marijuana debate to Congress. I had a larger point in mind -- effectively that pushing this case to the Supreme Court may backfire as far as national drug control policy goes should the pro- side of the debate gain public momentum -- but I had to go eat and realized that was wandering offtopic.

              The argument is that they fall under federal purview because the

              • I think that the Supreme Court decision will push the medical marijuana debate to Congress

                I think so too. And I hope so.

                pushing this case to the Supreme Court may backfire as far as national drug control policy goes should the pro- side of the debate gain public momentum

                I think that is likely.

                My quibble is over his assertion that California's production will "substantially affect" regulation of interstate trade

                I think you're misreading his argument. I don't see that he actually says it will. On
                • There is some degree of conflict between the Necessary and Proper clause and the Tenth Amendment to the Constitution, though Necessary and Proper has won more often (you mentioned 200 years -- McCulloch v. Maryland?). From gpoaccess [gpoaccess.gov]:

                  Federal Regulations Affecting State Activities and Instrumentalities. -- Since the mid-1970s, the Court has been closely divided over whether the Tenth Amendment or related constitutional doctrine constrains congressional authority to subject state activities and instrumental

                  • I am all for restraining Congress with the Tenth Amendment. But the Tenth specifically "powers not delegated to the United States by the Constitution, nor prohibited by it to the States." This not only gives the states a lot of powers, it *also* implies that where the Constitution delegates powers to the federal government, that it supercedes the powers of the states. And what I am saying is that in this case, those powers *are* delegated to the federal government.

                    I do note with some amusement that O'C
    • So did O'Connor

      Me too, but in a good way.

    • I expect that O'Connor and Scalia will be the most-remembered justices from this court.

      Though Scalia probably will probably have the most quotes in the 2090 edition of Bartlett's. ;-)

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