http://bluemassgroup.com/2005/06/new-york-times-misses-the-medical-marijuana-boat/ Reality-based commentary on politics and policy in Massachusetts and around the nation Thu, 20 Jun 2013 05:56:34 +0000 hourly 1 http://wordpress.org/?v=3.4.2 http://bluemassgroup.com/2005/06/new-york-times-misses-the-medical-marijuana-boat/#comment-1188 patricka Wed, 30 Nov -0001 00:00:00 +0000 http://www.bluemassgroup.com/diary/487/#comment-1188 <p>I'll be honest, as much as I hate to agree with the conservatives on this, I find O'Connor's dissent convincing. I agree with the argument that distinguishes this case from <i>Wickard</i>. O'Connor carves out a space for activity that is too small to be regulated, and applies it to the California marijuana cases; the AAA, which was challenged in <i>Wickard</i>, had that small space built into the law, but the farmer in that case went beyond the limits.So I think that there is a principled progressive basis for the position that the newspaper took, although it's not clear that they use that basis.</p> I’ll be honest, as much as I hate to agree with the conservatives on this, I find O’Connor’s dissent convincing. I agree with the argument that distinguishes this case from Wickard. O’Connor carves out a space for activity that is too small to be regulated, and applies it to the California marijuana cases; the AAA, which was challenged in Wickard, had that small space built into the law, but the farmer in that case went beyond the limits.So I think that there is a principled progressive basis for the position that the newspaper took, although it’s not clear that they use that basis.

]]> http://bluemassgroup.com/2005/06/new-york-times-misses-the-medical-marijuana-boat/#comment-1189 david Wed, 30 Nov -0001 00:00:00 +0000 http://www.bluemassgroup.com/diary/487/#comment-1189 <p>One problem with the attempt to distinguish <i>Raich</i> from <i>Wickard</i> is the different nature of the two markets. <i>Wickard</i> involved federal price regulation of a legal - indeed, essential - commodity, namely, wheat. It is reasonable to assume that truly small-scale production of wheat (in O'Connor's words, the "home cook's herb garden") wouldn't interfere with the regulatory scheme, hence the statutory carve-out, and hence the Court's approval of regulating a farmer whose "personal" production exceeded that carve-out. (Note that there's no indication that Congress wrote the carve-out into the statute because it thought it had to in order to preserve the statute's constitutionality; it may well have done so on policy grounds.)But here, Congress's intent is far different: it wants to wipe out the ENTIRE market for marijuana. No exceptions. And given that, I don't see how one can really argue with the position that hundreds, perhaps thousands, of people all supposedly using marijuana for medicinal purposes represents at least a modest threat to the federal regulatory scheme. That's a lot of legal pot floating around, and it does not seem unreasonable to worry that some of it might get into the wrong hands. And unlike the price regulation scheme in <i>Wickard</i>, where a little extra wheat in the market probably wouldn't affect prices enough to interfere with Congress's intentions, the sale of ANY pot is inconsistent with what Congress wants and therefore threatens its regulatory scheme.</p> One problem with the attempt to distinguish Raich from Wickard is the different nature of the two markets. Wickard involved federal price regulation of a legal – indeed, essential – commodity, namely, wheat. It is reasonable to assume that truly small-scale production of wheat (in O’Connor’s words, the “home cook’s herb garden”) wouldn’t interfere with the regulatory scheme, hence the statutory carve-out, and hence the Court’s approval of regulating a farmer whose “personal” production exceeded that carve-out. (Note that there’s no indication that Congress wrote the carve-out into the statute because it thought it had to in order to preserve the statute’s constitutionality; it may well have done so on policy grounds.)But here, Congress’s intent is far different: it wants to wipe out the ENTIRE market for marijuana. No exceptions. And given that, I don’t see how one can really argue with the position that hundreds, perhaps thousands, of people all supposedly using marijuana for medicinal purposes represents at least a modest threat to the federal regulatory scheme. That’s a lot of legal pot floating around, and it does not seem unreasonable to worry that some of it might get into the wrong hands. And unlike the price regulation scheme in Wickard, where a little extra wheat in the market probably wouldn’t affect prices enough to interfere with Congress’s intentions, the sale of ANY pot is inconsistent with what Congress wants and therefore threatens its regulatory scheme.

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