I wrote an op-ed for National Review (Online) last week showing how conservative exploitation of the Supreme Court’s broad misreading of the Commerce Clause to reach intrastate medical marijuana facilitated liberal exploitation of the same to create the individual mandate in Obamacare.
A principled stand on the limits of federal power does not begin and end with health care. The Commerce Clause is a double-edged sword: Conservatives cannot wield it in the drug war without making it a useful tool for advancing progressive visions of federal power.
So far, many conservatives outraged over Obamacare do not seem to have reconsidered their enthusiasm for national drug prohibition. Whether they do so could provide a good indication as to whether they’re standing up for a principle — or merely against the president.
Hinkle points to a recent Heritage Foundation paper opposing Prop. 19, California’s referendum on marijuana legalization. The Commerce Clause makes a prominent appearance:
In 2006, the Supreme Court held in Gonzales vs. Raich that the Commerce Clause confers on Congress the authority to ban the use of marijuana, even when a state approves it for “medical purposes” and it is produced in small quantities for personal consumption. Many legal scholars criticize the Court’s extremely broad reading of the Commerce Clause as inconsistent with its original meaning, but the Court’s decision nonetheless stands.
Yes, the decision “nonetheless stands.” That doesn’t make it right. Several prominent conservative drug warriors signed on to an amicus brief in Raich endorsing an expansive use of the Commerce Clause. Copy, paste, and replace the word “marijuana” with “health insurance,” and you just wrote a Department of Justice brief for any of the suits defending Obamacare across the nation.
Or, for a good laugh, go read former Oklahoma congressman Ernest Istook, now working for Heritage, who frames the health care debate as “Obamacare vs. Limited Government.” As he puts it: “Straining to find a constitutional basis for mandating that everyone must buy health insurance, Obama’s lawyers resorted to the all-purpose Interstate Commerce Clause.” Istook signed on to the drug warrior brief in Raich.
There’s no good reason for this inconsistency. State attorneys general from both sides of the aisle opposed the federal intrusion in Raich. Deep red Alabama, Mississippi, and Louisiana touted their drug warrior prowess but argued against an overly broad Commerce Clause reading on federalism grounds. True blue California, Maryland, and Washington argued that the Controlled Substances Act did not bar states from regulating intrastate markets.
I make many of these points in a Cato Podcast, Conservatives, Obamacare, and the Commerce Clause. For some more Cato work on the drug war, check out how Portugal decriminalized drugs without the social ills that conservatives forecast, and how ending the war on drugs would save billions annually.