That should surprise no one. Earlier this year, in U.S. v. McCoy, the Ninth Circuit held that federal anti‐child‐porn laws were unconstitutional as applied to a single photograph taken by a parent that was not intended to be sold or traded. Just a few weeks ago, in U.S. v. Stewart, the court ruled that mere manufacture and possession of a completely homemade machine gun, not intended to be sold or traded, was constitutionally outside the reach of federal gun laws. In both these cases, the Ninth Circuit found that the power of Congress over “commerce…among the several states” simply did not extend this far.
In our federal system, these activities are subject to state regulation and prohibition, provided state laws do not unreasonably infringe upon liberty (as the Supreme Court held last spring in the case of Lawrence v. Texas, striking down a state prohibition on sex between same‐sex couples). The photo in McCoy and the machine gun in Stewart were both subject to state laws.
In Raich, however, California had chosen to legalize the cultivation, possession, and use of medical cannabis (marijuana) for medical purposes in the interest of public health. Indeed, another of my clients, the Oakland Cannabis Buyers Cooperative, whose case is now pending before the Ninth Circuit, is the officially designated agent of the City of Oakland.
This is what federalism is supposed to be all about. Provided individual rights are protected, states should be free to experiment with different mixes of regulations and prohibitions. That way, we can witness the different results and reach conclusions on which policies are preferable. And those individuals who object strongly to a particular policy can move to another state where the policy is different. With the one‐size‐fits‐all national approach, all Americans are captives of the policy choices of Congress, unless they leave the land they love.
The benefits of federalism are accomplished by holding Congress to its enumerated powers, in this case the power over interstate commerce granted it by the Commerce Clause. In two controversial opinions, U.S. v. Lopez (1995) and U.S. v. Morrison (2000), the Supreme Court found — for the first time since before the New Deal — that Congress had exceeded this power when it enacted the Gun Free School Zones Act and a portion of the Violence Against Women Act. Both cases were 5–4 rulings by the more conservative justices. Both rulings have drawn heavy fire from the academic left. Neither has been enthusiastically applied by the lower federal courts, which usually attempt somehow to distinguish between them.
It is supremely ironic, therefore, that the San Francisco‐based Ninth Circuit, much maligned by conservatives, is the court of appeals that is taking the Supreme Court’s new Commerce Clause jurisprudence the most seriously. This medical‐cannabis case illustrates that federalism is a doctrine that provides benefits across ideological lines. If this case eventually goes to the Supreme Court, we will learn whether the more conservative justices who developed this doctrine have the courage of their convictions when it applies to activities of which they may disapprove. We will also see whether the more liberal justices will put their disdain for Lopez and Morrison above the commitment to stare decisis, which would enable them to do justice by letting California protect the liberty of suffering persons to alleviate their distress, free of interference by the federal government.