The plaintiffs in Raich sought the protection of a California law allowing them to use marijuana for medicinal purposes. The problem, of course, is that federal drug laws prohibit the possession of marijuana for any purpose, and federal laws trump contrary state laws under the US Constitution’s Supremacy Clause. The only way around the problem is to argue that the federal law is itself unconstitutional. And that is what the plaintiffs did: they argued that because medical marijuana users either grow their own pot or obtain it non-commercially from in-state suppliers, and because they only use it themselves and never sell it, their activity does not fall within Congress’s authority to regulate interstate commerce, which is the constitutional hook for the federal drug laws. (Con Law 101: Congress does not have plenary power to legislate; it may only pass laws that fall within certain "enumerated powers," one of which is the power to "regulate commerce … among the several states.")
Now, the Times is basically sympathetic to medical marijuana users. At the same time, the Times is leery of the Court’s recent line of cases cutting back on congressional authority to legislate under the interstate commerce power (most notably, the Court has held that Congress may not invoke the interstate commerce power as justification for a ban on guns in school zones, or for a civil remedy for violence against women). The interstate commerce power is the constitutional underpinnning for a whole host of laws (civil rights and environmental laws come to mind) that the Times – and, probably, most Americans – would be unhappy to see wiped out, and any judicial erosion of Congress’s interstate commerce power is a step in that direction.
The Times’s uncertainty about which way to go in this case ("We read the Supreme Court’s decision on the medicinal use of marijuana with mixed emotions") leads to the editorial’s incoherence. First, the Times says that it "take[s] very seriously the court’s concern about protecting the Commerce Clause, the vital constitutional principle that has allowed the federal government to thwart evils like child labor and segregation," and goes on to excoriate those "conservatives" who, by "sharply reduc[ing] Congress’s use of its power to regulate and protect interstate commerce," supposedly want to "turn the clock back to before the New Deal, when workers were exploited, factories polluted at will and the elderly faced insecure retirements." Mmm, terrible. Sounds like the Times thinks that the commerce clause should win, and the plaintiffs should lose.
But then the Times says that "most Americans would agree that using small amounts of marijuana in private under a doctor’s supervision has nothing to do with narcotics trafficking." Oops – that’s exactly what the plaintiffs argued, and that’s the argument that those terrible "conservatives" on the Court accepted. If the plaintiffs’ activities really had "nothing to do" with narcotics trafficking, then the plaintiffs would have won their case. But they lost – and they lost because the Court’s majority concluded that the plaintiffs’ activities did have something to do with the interstate market for illegal drugs.
So the Times wants it both ways. It wants to preserve the post-New Deal expansive view of Congress’s authority to regulate interstate commerce, but it also wants to carve out "local" activities like smoking locally-produced marijuana for medical purposes from federal regulation. But it doesn’t work that way. The whole point of the Court’s New Deal cases (particularly Wickard v. Filburn, the case in which the Court upheld federal regulation of a farmer’s growing of wheat that he planned to consume) is that "local" activities, when plausibly related to an interstate market, fall within Congress’s commerce power (I’m paraphrasing substantially, but that’s the general idea). The Raich Court basically held that medical marijuana is no different from the wheat in Wickard (it said that the similarity between the two cases was "striking"), and upheld federal regulation on that ground.
What the Times really wants, I suspect, is to preserve federal laws it likes (like civil rights and environmental laws), but have laws it doesn’t like (like "overbroad" drug laws) struck down as unconstitutional. That "results-oriented" approach is no way to run a legal system. If law is to retain any independence from politics, then judges must apply legal principles without worrying about whether they "like" the result as a policy matter.
The Raich case is quite interesting in that regard. Most of the Justices voted predictably, in that they stuck to the principles they had set out in the Court’s recent interstate commerce cases. The two exceptions are Justices Kennedy and Scalia, both of whom voted against federal authority in the earlier cases but voted to uphold it here. Some have hypothesized that Kennedy, like the Times, took a results-oriented approach to this case (of course, his desired result is the opposite of the Times) – basically, the theory goes, Kennedy thinks drugs are bad, and he isn’t willing to forego the benefits of federal drug laws for the advancement of some lofty legal principle, so he sacrifices his federalism principles on the "war on drugs" altar. Scalia, too, has now been accused of abandoning his own jurisprudential principles when they lead to a result with which he is not comfortable – in Scalia’s case, this is presumably because he wants to be Chief Justice, and we can’t have a Chief who’s "soft on drugs," now can we? Both Justices, I would note, have occasionally voted against their presumed personal preferences in the past (the famous example is their votes to strike down the flag-burning statute on First Amendment grounds).
Anyway, the moral of the story is that standing on principle goes both ways. The Justices can’t always get the result they "want," and neither can the New York Times. Pick your principles carefully, because they may lead you to unexpected and uncomfortable places.
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.
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.