The High Court’s Ruling
The release of the Supreme Court’s opinion in Gonzales v. Raich, the medical marijuana case, has dealt a major blow to supporters of medical marijuana and advocates of limited government and free markets. Its effect on the average stoner, however, has likely been limited to a minor buzzkill.
There are two fundamental problems with the Supreme Court’s opinion in Gonzales, both of which grant Congress unnecessary powers: the principle of aggregation is misapplied, and aggregation is implicitly recognized as being relevant to federal legislation but not state legislation.The Court recognizes Gonzales as being substantially similar to an earlier case, Wickard, in which a farmer was producing more than his allowed quota of wheat and consuming the excess on his own farm. The farmer argued that because his personal consumption was non-commercial and intrastate, it did not fall under Congress’ jurisdiction. The Court disagreed, stating that,
“even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”
By recognizing that individual actions, taken in aggregate, could substantially undermine Congress’ ability to legislate, the Court appropriately clarified the powers of Congress to regulate interstate commerce in Wickard. It is not a great logical leap to see that thousands of small farmers, all producing in excess of quotas and consuming the excess themselves, thereby eliminating their demand for wheat from the interstate market, would have an effect on prices.
The fundamental difference between Wickard, which was decided primarily along these lines, and Gonzales is that the activity in Wickard had a clear aggregated effect on interstate commerce. In Gonzales, the activity of the marijuana growers and medical users did not have any effect on interstate commerce either in the individual case or the aggregate. The Court’s opinion is based on the idea that the respondents in the case could have sold the marijuana on the interstate market, and that “the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety.” The court thus holds that the respondents’ activity falls under Congress’ purview and that the state law does not shield the respondents because, had they violated state laws by committing an act that they did not commit, the aggregate of this imaginary activity would frustrate the federal interest.
To be fair, Wickard does mention the possibility that wheat could have been drawn into the interstate market, but it is generally agreed that this is not the point that decided the case. Unfortunately, the mention of this possibility created a precedent that has been liberally applied by the current court. Now Congress’ jurisdiction can be interpreted as extending to any individual’s action that could theoretically lead to another action, legal or no, that could, if performed by many people, affect interstate commerce. It is hard to imagine something that doesn’t fall into this category.
In addition to this misapplication of aggregation, there exists another problem with the Court’s decision. If we are to embrace a legal principle, we should do so without prejudice; the Court fails to do this with respect to aggregation. The Court recognizes that individual activities, taken in aggregate, can have a substantial effect on interstate commerce, and uses this idea to expand the scope of federal regulation. It fails to recognize, however, that individual activities, taken in aggregate, can also have no effect on interstate commerce. If a state law is structured such that the sum of all activities in the state exert no influence on interstate markets, then those activities should fall outside Congress’ jurisdiction, despite the fact that some individual activities may have such an influence.
The problem is that the Court recognizes aggregation and the supremacy clause as separate concepts that, when taken together, are sufficient reason to consider the respondents’ actions in Gonzales under federal, rather than state, law. By doing so, the Court fails to make the distinction that the concepts are in fact interrelated. If the state law is structured such that the aggregate effect on interstate commerce sums to zero, then aggregation should not be considered as reason for invocation of the supremacy clause. Given the demand for medical marijuana, the law in a state can be structured such that the production of medical marijuana is carefully regulated and monitored so as to produce no excess that could be diverted and that patients are paying a sum equal to the black market value of the marijuana so that there exists no incentive for patients to divert supply. Under such a circumstance, there would be no net effect on interstate commerce, thus rendering that state’s experiment a legitimate one under our Federal system. As the opinion of the Court contains no such nuance, it fails to properly capture the spirit of our Constitution and further diminishes the power of the States.
The Court’s opinion contains a further error, this one somewhat ironic. If in fact the medical marijuana patients in California are generally not exerting an actual effect (as opposed to the theoretical effect the Court considered) on interstate commerce, the Court’s opinion will likely be counterproductive. As the ruling recognizes the federal government’s interest in reducing supply and demand on interstate drug markets to zero, this ruling, which will cause consumers of medical marijuana to participate in the black market, will achieve the inverse of the desired effect. It’s well-known that the drug trade is driven by demand; the Court’s disregard of this fact has produced an absurd ruling.