Thursday, November 17, 2011

Which devil do you want to dance with? Do conservatives prefer pot or national health care?

This cracks me up: Mother Jones reports that the central arguments which will be considered by the US Supreme Court in favor of "Obamacare" hinge on the high court's past judicial finagling to justify federal regulation of medical marijuana. Wrote Stephanie Menciner:
In both the DC Circuit and the 6th Circuit, the two appellate courts that have upheld the health care law, judges relied heavily on a 2005 Supreme Court ruling in Gonzalez v. Raich—a medical marijuana case. That case involved a California woman named Diane Monson who'd been growing marijuana in her backyard for medicinal reasons. (Monson was joined in the case by Angel Raich, a woman who'd also had her medicinal marijuana seized by federal agents.) The DEA swooped in one day and destroyed her plants, even though medical marijuana use in California is legal under state law. The high court found that the Commerce Clause gave Congress wide authority to regulate interstate commerce, even when that commerce takes place mostly in someone's backyard.

Monson had claimed the DEA's action was unconstitutional and a violation of the Commerce Clause because federal agents were moving to prohibit noncommercial, intrastate cultivation of a plant intended for personal consumption. The pot wasn't crossing state lines—it wasn't even being sold at all. That, the plaintiffs believed, made the weed beyond the reach of the feds.

The Supreme Court would have none of it. In a 6 to 3 decision, the court held that Congress could regulate backyard pot cultivation because it still constituted part of a very large, interstate market. It’s hard to see how the individual mandate doesn't square with that view of the law, given how enormous the national health care market is. Sixth Circuit Judge Jeffery Sutton, a George W. Bush nominee and a former clerk for Supreme Court Justice Antonin Scalia, wrote, "If Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, it is difficult to say Congress may not regulate the 50 million Americans who self-finance their medical care."
How's that for unintended consequences? If the US Supreme Court upholds the "individual mandate" in Obamacare, the Tea Party types will mainly have overreach by Big Government drug warriors to blame. The prevailing narrative has it that states rights were radically scaled back first by the Civil War, then Reconstruction and later the destruction of Jim Crow, all of which is true. But less frequently discussed is how, after that, the remnants of states rights were all but annihilated over the ensuing four decades in the name of the drug war, which is why they now are nonexistent when the same mechanisms used to justify the drug war are trotted out to impose national healthcare.

If movement conservatives had to choose, I wonder, would they prefer to end Obamacare but allow Californians to grow pot in their back yards, or would the urgent necessity to regulate medical marijuana justify living with federalized healthcare and mandatory coverage? Which devil do you want to dance with? Like many constitutional liberties, states rights, or its abrogation, is a two-edged sword.


Anonymous said...

Considering O'Connor, Rehnquist, and Thomas were in the dissent, I think it's fair to assume that conservatives would be fine allowing Californians to grow medical pot in their back yard, regardless of its impact on Obamacare.

Gritsforbreakfast said...

It's not "fair to assume" any such thing, 8:00! For starters, of those three, only Thomas is still on the court. We don't know yet what Alito and Roberts will do. OTOH, Scalia, Kennedy and others in the majority on Raich must decide whether to stick with that precedent or back off it.

Let's not pretend that conservatives aren't as complicit as liberals in the drug war, which is a bipartisan vice.

Anonymous said...

I'm not a 'movement' anything and will happily let you grow, refine and consume any damned ingestible or combustible substance you want. I will also resist (maybe unto penury or worse) any move to require me to buy in to a bogus insurance scam that is in reality a tax.
Of course too many of my acquaintances will defend the DEA precedent while screaming bloody murder that PPACA is somehow different; they call themselves conservative and view me as a libertine.

Anonymous said...

OOOPS! Choose wisely the size of stick with which you intend to whip someone's ass... for in the end it might be your own ass getting whipped with the stick you picked.

BarkGrowlBite said...

There is another issue here. The federal government does not have to bother with the interstate commerce clause when making pot busts. The possession, distribution and manufacture of marijuana is illegal under federal law. The DEA is free to bust people in Kookfornia, its medical marijuana law notwithstanding.

A couple of years ago or so, Attorney General Eric Holder tried to restrain the DEA from interfering with the possession and growth of medical pot in Kookfornia. He seems to have relented on that lately because medial pot is a fraud that has become a multi-billion dollar for profit industry.

Anonymous said...

It's clear that all bark and no bite doesn't live in California as he would be the Kook for not understanding the legitimate reasons for the Federal mandate of recognizing state law. There have been for years doctors in California and other States who have known arthritis and other illnesses are treated successfully with marijuana. That ain't fraud. This unintended consequence and the knee jerk reaction of all bark an no bite is like gun nights that try to claim they want to overturn Roe v. Wade. Not realizing to do that you would have to kill the right to privacy that eminates from Roe and Griswold.

Gritsforbreakfast said...

Yeah BGB, because if there's one thing this country definitely doesn't need right now it's more multi-billion dollar for-profit industries, right?