Dan: I don’t happen to remember the name of that machinegun case, but I think Jones blogged it so you could try searching our archive. And, yeah, I believe the reason you could have the machinegun was that it was not being sold across state lines.

The commerce clause would probably have reached nonprofit sales of marijuana under 33’s proposed regime, even if they were wholly intrastate. Under Heart of Atlanta Motel, Congress does have the power to regulate commercial activities of “a purely local character” which have a substantial and harmful effect on interstate commerce.

This posture was reiterated in Lopez: “Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” The Court said this even as they ruled that Congress had no power to regulate the possession of firearms within school zones, as that was noneconomic. By the line they’ve drawn so far, Measure 33 would probably have run afoul even of a favorable ruling in Raich.

Do you know offhand the name of that 9th Circuit case? Sounds like it followed from Lopez; I imagine if you took to selling your homebuilt creations you’d run into trouble.

God, I love the commerce clause.

Many 501(c)3 entities subsist on donations and the sale of their research, but still maintain tax-exmpt status.

Even if pot was a purely commercial action in Oregon, does the Commerce Clause give Congress the authority to regulate a purely intrastate market provided the market were restricted in such a way as to make sale across state lines highly improbable? That’s really the question of the day isn’t it…but hey the 9th Circut ruled last year that Congress doesn’t have the authority to stop you from building your own machinegun, so I guess there’s hope.

All the licensing has to go through the state of Oregon, so I assume that given the restrictions on your medical condition, whoever you get it from has to hold matching license to dispense to you.

(7) Patients for whom the medical use of marijuana is beneficial have a personal privacy right to a safe affordable supply of this medicine. No such supply can be guaranteed to these patients unless the persons providing the marijuana can be adequately compensated. No adequate supply of medical marijuana can be assured for all patients who could benefit from medical marijuana unless medical marijuana can be safely and lawfully dispensed in a regulated intrastate market.”

There you are.
But then again…
“(7)…”Medical marijuana dispensary” includes any employees or agents of such a nonprofit entity.”

It also explains that this is not an attempt to totally legalize marijuana. People seem to forget that a lot when Measure 33 gets publicity.

Seizure lowers supply, price up, all that jazz. Plus there are other production-side costs from trying to evade legal consequences. And with bad/no data on domestic production it’s silly in prinicple to regulate through the commerce clause, as y’all have noted above.

I was going to say the same thing, Danimal. People who grow medicinal weed can’t sell. That’s why co-ops are a good idea, because the chronically ill who can’t cultivate their own can at least contribute to a group who can do it for them. Comparing illegal marijuana use and medical use in terms of commerce is like comparing apples to oranges.

If the whole case is going to revolve around commerce, ie production and sale of a commodity, there is no precident data to make a judgment on national commerce, let alone in-state commerce, for an illegal substance. According to the National Drug Intelligence Center , there is a discrepency between supply stats and demand stats. 2002 user stats for marijuana is broken down into voluntary admission and drug charges by age group. 66.87 percent of all admissions also used other substances, and 56.4 percent of all cases were referred from the criminal justice system. Naturally, if the stats focus on those caught, the numbers are going to be higher. It isn’t a good representation of the whole population.

Marijuana used in the US in 2001 was as follows:
“An estimate of the marijuana available in the United States is not definitive, in large part because of limitations in eradication and seizure data, the unknown extent of indoor cultivation, and unsubstantiated or outdated crop estimates. In attempting to determine how much marijuana was available in the United States in 2001, the interagency Marijuana Availability Working Group established a range of 10,000 to 24,000 metric tons.”

Simple math, per the DEA price range quote of $300 to $1,200 per pound for commercial-grade marijuana, the illegal marijuana market income takes in up to 63 billion dollars (cue Dr. Evil face) annually. That does not take into account:
(1) domestic versus foreign marijuana
(2) seizure versus actually existing operations. There’s a big difference between actual operations and the amounts seized.

The NDIC themselves admit that they have no quatifyable amount for domestic production, and that a great portion of marijuana seizures involve foreign sources.

I think the stats are biased, and a question of commerce has no data history to work on. There should be an independant study done into this, by a research group that is not government or justice affiliated. But, that may involve enough monitoring to kill a market that thrives in the underground.

Yeah, but I think the fact that the Civil Rights cases involved the regulation of actual commercial enterprises is a more important distinction than the much more elusive inter/intrastate line.

Also, the cases in the ’60’s came in the middle of a period of broad interpretation of the Commerce Clause, where now we are in(hopefully) a period of less expansive interpretation.

True, the Civil Rights cases were right at the peak of the commerce clause’s power.

But just because the Court has lately been turning the tide on the commerce clause does not mean they are going to make rulings that significantly undermine long-established legislation in support of civil rights.

They had to be aware of this when ruling in Morrison and Lopez, and hence found ways to distinguish those cases as dealing with noncommercial activity, leaving the Civil Rights cases intact. I see no reason why they wouldn’t do the same in Raich.

The right result in Raich would, I hope, undo Wickard (personal consumption of wheat was regulable because it affected national New Deal price controls), but that’s as far as it would probably go. I think the Civil Rights cases were sturdier constitutionally than the New Deal cases, and not merely because I agree with the policy implications: it’s because the law in question directly targeted commerce. Whereas using the commerce clause to regulate noncommercial activity is as ass-backwards as it can get.

Also, the cases in the ’60’s came in the middle of a period of broad interpretation of the Commerce Clause, where now we are in(hopefully) a period of less expansive interpretation.

I’m sure a smart lawyer could make a better case than I, though.
-ajb

I haven’t seen any commentary, but I can give you my best guess: it wouldn’t have any effect, because the Civil Rights cases concerned commercial activity with a substantial and harmful effect on interstate commerce. (The discriminatory operation of roadside motels and diners.)

The marijuana cultivation and use in Raich is noncommercial. So it belongs to a different class of cases than the Civil Rights cases, in which the question is whether a noncommercial activity nonetheless has a substantial enough effect on interstate commerce that regulation of it is essential to regulation of interstate commerce.

The cases may also be distinguishable on the intra/interstate question. If the marijuana use is deemed wholly intrastate, it would differ from a motel or restaurant that serves interstate travelers.

Plus, if you think about it, if states rights apply to even the “evil scourge” or marijuana, what other, less controversial things, must they apply too as well? I can see a decent number of Federal regulations being overturned here.

Out of curiousity, has anyone seen any commentary on how a decision for Raich could affect the Civil Rights Act?

-ajb

(High stakes to pin on such controversial subject matter. I really hope Scalia et al take this seriously.)

Your point about the FDA is fair. Basically, if people find pot-smoking provides effective pain relief and doesn’t have a bevy of other negative effects (we’re not talking about some of the wackier AIDS cocktails, after all) I don’t see the harm. I understand the concern about doctors prescribing it, but I’m not sure I see another way out that doesn’t either criminalize the patients or make a mockery of existing marijuana law.

And, as Dan says, the non-drug implications of the case are even more important.