What are those awful bigoted Arizonans smoking?

As Arizona has been much demonized lately, and is being subjected to a boycott, news that doesn't fit the "bigoted state" narrative is being under-reported. So there wasn't much national attention paid to the fact that on November 2, Arizona's "bigoted" voters approved Proposition 203, which made Arizona the 15th state to approve a medical marijuana law.

State laws legalizing medical marijuana make a lot of people uncomfortable --
for reasons beyond the merits of marijuana as a medical treatment. The passage of these laws are a direct challenge to the federal government's assertion of authority under the Commerce Clause, and while liberals may favor weakening or getting rid of marijuana laws, they abhor states rights much more.

Federalism is a volatile issue, and I think its assertion in the drug war context threatens both the entrenched political right and the entrenched political left in so many ways that state marijuana initiatives are seen as politically disruptive. The left loves to invoke the specter of "states' rights" as an outmoded racist and bigoted legalism which we have "moved beyond." And while many conservatives favor states rights, they are not comfortable with it in the context of the war on drugs, which is unfortunately seen as a conservative issue. Plus, many "culture war" conservatives simply hate pot on a visceral level. Both sides would be delighted if issues like these medical marijuana ballot propositions just went away.

The Supreme Court's seeming disposal of the medical marijuana issue on Commerce Clause grounds in Gonzales v. Raich only exacerbated this tension, and it is not clear at all that a similar case brought today would go the same way. Many commentators (including M. Simon) have noted that if the Commerce Clause allows federal jurisdiction over home-grown medical marijuana, then the federal ability to regulate health care is a no-brainer.

From Justice Thomas's stinging dissent:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything-and the Federal Government is no longer one of limited and enumerated powers.

And this is from Justice O'Connor's dissent:

The Court's definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market.
Sound familiar? If personal use of home-grown marijuana for health reasons is an economic activity subject to regulation under the Commerce Clause, then the purchase of health care would certainly be. And if a state cannot opt out of one federal law, it cannot opt out of another.

Interestingly, right now the Obama administration is ducking the medical marijuana issue by deliberately failing to enforce federal marijuana laws in the states which pass these initiatives.

WASHINGTON -- The Obama administration will not seek to arrest medical marijuana users and suppliers as long as they conform to state laws, under new policy guidelines to be sent to federal prosecutors Monday.

Two Justice Department officials described the new policy to The Associated Press, saying prosecutors will be told it is not a good use of their time to arrest people who use or provide medical marijuana in strict compliance with state laws.

The new policy is a significant departure from the Bush administration, which insisted it would continue to enforce federal anti-pot laws regardless of state codes.

Does this mean that the Obama administration would support a reversal of the Raich case?

Not on your life. They hate states' rights, and love having the Commerce Clause trump everything. I'm sure they're delighted to have the Raich precedent left in place exactly as it is. In that respect, bringing another federal prosecution similar to Raich could possibly trigger a new appeal, and quite possibly a different result, so the seemingly liberal policy of not enforcing the federal marijuana laws actually helps preserve the heavy handed statist result in Raich.

It ought to come in handy in the future.

posted by Eric on 11.17.10 at 11:59 AM


I remember our social conservative friends cheering the outcome of Raich. It will now come bake to bite them. Karma (not a Christian idea) is a bitch.

But as ye so so shall ye reap is a Christian idea. Reap it and weep.

M. Simon   ·  November 17, 2010 12:17 PM

I oppose medical marijuana for an entirely different reason.

Medical marijuana is a mere dodge. There will be a 1:100 ratio between people who actually "need" the drug and those who go to their doctor to get high.

There is already too much support for treating doctors as illicit drug dealers when they prescribe legitimate medications. Medical marijuana will make this effect much, much worse because a drug that is popularly known to be otherwise illegal will be "prescribed".

There will be arrests, and since they will be related to pot, they will be covered by the media. The "doctor as dealer" will become a social problem, and politicians will pledge to deal with it, and they will chose enforcement methods that will make it even harder for me to get my Vicodin when I break my leg.

Either legalize pot, or do not. Do not use this halfway measure that screws things up for people who don't have anything to do with the activist morons who claim that only pot brownies can ease their pain.

Ryan Waxx   ·  November 20, 2010 3:27 PM

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