Leonard French received a license to cultivate and use small quantities of marijuana for medicinal purposes from the State of New Mexico under the Lynn and Erin Compassionate Use Act. The American Civil Liberties Union (ACLU) of New Mexico, which represents French, says the deputies' actions violated not only that law, but also state forfeiture laws and a constitutional prohibition on unreasonable searches and seizures. "The New Mexico state legislature, in its wisdom, passed the Compassionate Use Act after carefully considering the benefits the drug provides for people who suffer from uncontrollable pain, and weighing those benefits against the way federal law considers cannabis," said Peter Simonson, ACLU Executive Director. "With their actions against Mr. French, Eddy County officials thwarted that humane, sensible law, probably for no other reason than that they believed federal law empowered them to do so."
At the Trader Joe's parking lot while gathering signatures I was also asked my veiw. And I began with the thoughts that I had left off in the Legislative campaign of 2006. That included the 5-4 US Supreme Court decision that continued the Federal pre-emption of what former Justice OConner speaking in a dissent from the Court in Gonzales v. Angel Reich: "This case exemplifies the role of States as laboratories. The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering.
Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation.
I thought further that the Compassionate Use Act was a responsible act and measure. It didn't reach the threshold of supervisory authorty necessary to satisfy the Majority of the Courts' reservations and constitutional objections. Instead it relegated the statutory authority in much the same manner as the California scheme which was struck down. And without discounting that the Court would change in the next presidential term, I just admited that I was for the bill.
A statutory or judicial plan however should have addressed the substantial "commerce clause questions" which were brought to reveiw by the majority. The majority did not address the due process clause which were raised. Justice Stevens, the senior justice who many expect to be next in line to retire was adament for the Majority, "since marijuana is a popular part of commerce, and that the Commerce Clause applies whether the commerce is legal or not.
Justice Scalia wrote a separate concurrence that aimed to differentiate the decision from the more recent results of United States v. Lopez and United States v. Morrison. Although Scalia voted in favor of limits on the Commerce Clause in the Lopez and Morrison decisions, he said that his understanding of the Necessary and Proper Clause caused him to vote for the Commerce Clause with Raich for the following reason: " Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective.
As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could "¦ undercut" its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between "what is truly national and what is truly local." The issue of the Commerce clause must therefore be dealt with with any statutory scheme. Or perhaps a legislative address to the Congress for an exemtion from the commerce clause.