Monday, June 06, 2005

medical marijuana and the commerce clause

Today the Supreme Court struck down a lawsuit against Ashcroft declaring that the government has the power under the commerce clause to regulate medical marijuana. Interestingly enough, Rhenquist and Thomas, along with O'connor dissented, attempting to make their support for states' rights a little more consistent than the majority.

The commerce clause is Congress most wide-reaching power; it gives Congress the power to regulate interstate commerce and though it's power has ebbed and flowed, it was most recently curtailed in the Lopez decision. Gun control advocates, attempting to prevent the massive slaughter we see every year, invoked the power of the commerce clause in attempting to file criminal charges against those caught with guns on school grounds. While apparently such action is too "local" (a brief examination of the Wickard decision as well as Heart of Atlanta shows how ridiculous that view is) the pot clubs are not.

So there it is. The federal government doesn't have the power to charge crooks who carry guns on school grounds with a federal crime (although I'm sure a lot of those guns are flowing through interstate commerce, which demonstrates how these particular articles of commerce are treated so differently)but it does have the power to stop those people dying of hiv and cancer from getting medical treatment.

The best evidence available indicates that the physician should be making this choice, and the line drawn in the sand by the Supreme Court, who has worked backwards to support their conclusion, is an arbitrary and capricious one. But then again that doesn't make it too different from a number of other decisions they have made.


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