December 22, 2003

The recent medical marijuana decision issued by the federal Ninth Circuit Court enforces a state’s right to overrule the federal Controlled Substances Act of 1970 if certain conditions are met with regard to marijuana use that is recommended by a physician. Among others, one of the conditions the judges stipulated is that the marijuana must not be sold. To a sharp defense attorney, that stipulation is significant and potentially more far-reaching than the Ninth Circuit may have intended.

I will explain.

In order to justify the federal War on Drugs, the federal government has always claimed that the perpetually abused Commerce Clause gives them the authority to enforce federal drug laws, because “drugs are sold”, and therefore fall into the category of commerce. Any thinking person knows the Founding Fathers never intended that, but the feds have gotten away with that chicanery for 34 years without any real serious challenge to their premise. I have a niggling feeling that’s about to change.

Frankly, I’m surprised the Commerce Clause hasn’t been used by the federal government to usurp the entire balance of the Constitution and Bill of Rights, since we are a capitalist nation and just about everything we do and make can be had for a price.

Heck, we could start with prostitution and move on from there to your kid’s lemonade stand. But this ruling by the Ninth Circuit seems significant because it indicates that at least two of the three judges considering the matter of state-sanctioned medical marijuana, recognized an absence of federal authority if the marijuana has not been acquired through “commerce”. Hmm, what about other drugs?

Let’s carry this a bit further. In order for the feds to enforce federal drug laws, there has been an unchallenged assumption in each prosecution that commerce was somehow involved. But I can’t think of any federal drug prosecution that has ever been required to prove commerce was involved before the case could proceed to trial.

It seems reasonable that if federal drug prosecutors are going to hide behind the specious and dishonest Commerce Clause argument, then they should be required to prosecute within the limitations that argument represents. Ergo, if the feds can’t prove commerce was involved, they don’t have jurisdiction.

While an illegal drug manufacturer or drug dealer might be an easier mark for federal drug law prosecution, what about the person convicted under federal drug law for merely being in possession? Couldn’t that person argue before the same Ninth Circuit that he was freely given the substance in question, and therefore not subject to federal prosecution for lack of a “commerce” circumstance? Think about it.

It has always bugged me that Congress correctly required itself to pass a constitutional amendment giving the federal government authority to prosecute the War on Booze during Prohibition, but then blithely excused itself from that requirement when they wanted to prosecute the War on Drugs. If I recall correctly, illicit booze was also “sold”, so why didn’t Congress cite the Commerce Clause as their authority to prosecute federal prohibition laws back then? The answer is obvious, and the hypocrisy and speciousness of the Commerce Clause argument is therefore glaring.

It is high time to put a stop to it, and this Ninth Circuit Court ruling might be a good first step.

Carl F. Worden

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