Smoke Pot for Your Health

One of the cases to watch in the U.S. Supreme Court term that began this week is Ashcroft v. Raich. The case deals with the conflict between the federal Controlled Substances Act and a California state law allowing the use of marijuana for medicinal purposes. The big issue for the justices to decide will be whether the federal Controlled Substances Act falls within the powers of Congress under the U.S. Constitution's commerce clause.

The commerce clause gives Congress the power "to regulate interstate commerce." It seems to me that the cultivation and possession of marijuana is no different, from a constitutional perspective, from the production and possession of alcohol or guns or cell phones or television sets. Mere possession does not fall in the realm of "interstate commerce." Production or cultivation may result in interstate commerce, in which case Congress is free to exercise its power under the commerce clause. However, California's medicinal marijuana law applies only to the possession of marijuana and its cultivation for intrastate use, areas in which Congress has no constitutionally delegated power.

If it follows its recent decisions, beginning with U.S v. Lopez, which held that Congress couldn't regulate possession of guns within a certain radius of a public school, it seems very likely that the Court is likely to uphold California's medicinal marijuana law. That would be the outcome most consistent both with the Constitution and with the Supreme Court's jurisprudence.