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.
I’m happy to see Barton Hinkle, winner of the 2008 Bastiat Prize for Journalism, pick up on my writing and drive the point home in today’s Richmond Times‐Dispatch:
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.