Colorado’s medical marijuana law can and should be defended by Attorney General Suthers
By Seth Richardson
In a guest opinion in Sunday’s Gazette, Attorney General John Suthers tries to justify his refusal to defend Colorado’s medical marijuana laws by patting himself on the back regarding his opposition to Obamacare while simultaneously kowtowing to a Supreme Court ruling about marijuana that has a different set of facts than those presented by Colorado’s medical marijuana state constitutional amendment.
Suthers refers to the Supreme Court case Gonzales v. Raich, in which the Supreme Court held that marijuana illegally grown within a single state (California) and used solely within that state by a private person pursuant to a legislative statute authorizing the use of marijuana for medical purposes was still “interstate commerce” which allows the Congress to prohibit marijuana possession and use even when it takes place completely within a single state.
But one of the primary justifications for the Court’s ruling is that cultivation of marijuana within a state is one of a number of “purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce.” The argument holds that even home-grown, home-consumed medical marijuana may have a “substantial effect on interstate commerce.” Justice Stevens wrote, “Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.”
The basis of this reasoning is a case called Wickard v. Filburn, a Depression-era case in which the Supreme Court upheld one of FDR’s Progressive laws that set quotas for how much wheat a farmer could grow on his own land. In that 1942 case, the Court said, “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.” Using this justification, the Court upheld charges against a farmer who grew wheat on his own land for his own consumption, saying that because he would not therefore have to buy wheat for his own consumption at the market price set by the FDR administration, which was set artificially high in a vain attempt to prop up the markets, his growing of his own wheat would, in aggregate (if everybody else did the same thing) substantially affect the price of wheat.
In Gonzales v. Raich the reasoning was the same, that by growing marijuana herself, Raich was “affecting” the illegal market for marijuana, both as a consumer and potentially as an exporter, and that like Wickard, if enough people grew marijuana at home for personal use, it would “substantially affect” the price of illegal marijuana traveling interstate to supply demand, which thereby authorizes Congress to regulate the entire “class of activities” (marijuana cultivation and use) under its Commerce Clause authority.
But Colorado’s medical marijuana industry is different is several respects. First of all, our law is based not in a legislative act, but in an amendment to our state Constitution, which is a much stronger expression of the public will than a legislative act that sets up a head-to-head conflict between Colorado’s Tenth Amendment rights and federal exercises of Commerce Clause authority. Second, the close state control and oversight of the industry ensures that the industry does not substantially affect interstate commerce, legal or illegal, in medical marijuana.
Suthers says “Because of the rule of law, until a change of policy by Congress, medical marijuana remains in violation of federal law. The state attorney general cannot change that.”
What Suthers is evading is his responsibility to stand up and defend the rights of Coloradoans to make constitutional amendments and legalize matters that are purely in-state issues by challenging the incremental expansion of Commerce Clause authority by the Supreme Court in cases like Wickard and Gonzales as being improper decisions leading to improper exercises of federal authority over strictly local matters.
Even if he inevitably loses the case, merely by vigorously defending our state’s rights he is making a potent political statement that may affect change in Congress. He owes this duty of fidelity to the Colorado Constitution to the people of Colorado, irrespective of what the Supreme Court has said in the past. Supreme Court rulings are always subject to challenge, as are the laws of Congress, and this is how a good attorney general goes about it.
Wickard v. Filburn, which is the modern era root of nearly all Commerce Clause overreach by the federal government was decided by a Supreme Court that was very liberal and very sympathetic to FDR’s Progressive pretensions, and although it stands as precedent, precedents can be overturned by the Court, or by the Congress, but not unless someone stands up and challenges the inequity and overreach of the previous decision and forces change.
Colorado’s medical marijuana laws are substantially different from either Wickard’s wheat field or Raich’s home-grown marijuana. Because there is a substantially different set of facts involved, it is incumbent on the Attorney General to defend the just and reasonable decision of Colorado voters to amend their foundational document to permit a carefully-regulated and entirely domestic medical marijuana industry, even in the face of a seemly, but not irrevocably hostile Supreme Court ruling decided under a different set of facts.
Perhaps if he directly challenges the federal government’s authority to interfere in our medical marijuana laws, and other states join Colorado in demanding that the federal government respect the Tenth Amendment and the rights of the people to control domestic in-state matters, Congress will finally see the turning of the tide of public opinion and will relent by rescheduling marijuana so that it can be lawfully used under federal law for legitimate medical purposes.
But if Suthers does nothing, he is implicitly approving of the erroneous and harmful expansion of federal Commerce Clause power, which puts paid to his self-congratulatory maundering about his attack on the “unbridled power” of the federal government regarding Obamacare in his editorial.
Call Attorney General Suthers and demand that he defend the laws of Colorado and our rights under the Tenth Amendment to decide how to regulate the use of medical marijuana.