Obamacare and the War on Drugs

November 11, 2010 • Commentary
This article appeared on National Review (Online) on November 11, 2010.

If the generation of “limited government” lawmakers freshly chosen to man the trenches in Washington wishes to be taken seriously, the butcher’s bill must include some of the social conservatives’ sacred cows.

Starting with the War on Drugs.

Many conservatives have long argued that the federal government is broadly empowered to prosecute the drug war under Congress’s authority over interstate commerce. In the name of the drug war, they have been willing to allow federal law‐​enforcement officers to prosecute seriously ill patients who use medical marijuana in compliance with their states’ laws.

Many of those same conservatives are now finding that the terrible, swift sword of expansive federal power that they endorsed in the name of drug prohibition has now been turned on them in the form of Obamacare’s individual mandate.

The Justice Department is defending Obamacare by asserting that a 2005 Supreme Court case, Gonzales v. Raich, permits such a broad reading of the Commerce Clause that the federal government can tell individual citizens that they have to buy health insurance.

The Raich case was about medical marijuana. Angel Raich, a resident of Oakland, Calif., used medical marijuana to deal with the debilitating pain caused by an inoperable brain tumor, a seizure disorder, and a life‐​threatening wasting syndrome. California law allowed her to do so, but the Drug Enforcement Administration claimed that the federal Controlled Substances Act (CSA) made no exception for those in Raich’s position.

The Raich case closed out a decade’s worth of rolling back the scope of Congress’s power. In 1995, the Court held in United States v. Lopez that the federal Gun‐​Free School Zones Act exceeded the limits of Congress’s ability to regulate interstate commerce. United States v. Morrison in 2000 invalidated a federal civil remedy for victims of intrastate gender‐​motivated violence. Raich reversed this pushback. By a six‐​to‐​three majority, the court held that the aggregation of individuals’ small‐​scale cultivation and consumption of marijuana in compliance with California law would substantially affect the market for the drug, a market that the federal government had outlawed.

Raich cemented the legal foundation for the individual health‐​insurance mandate that has so many conservatives outraged.

Not all states took Raich’s broad claims of federal power lying down. Deep blue California, Maryland, and Washington State filed an amicus brief contending that Congress had intended only to interdict large‐​scale drug traffickers, not to bar states from accommodating those in Raich’s position. The attorneys general of Alabama, Louisiana, and Mississippi, drug warriors tried and true, nonetheless objected to what they saw as an alarming disregard for federalism and state sovereignty. (Disclosure: The Cato Institute also filed an amicus brief.)

Several conservative drug‐​war supporters in the House joined a brief in support of a limitless reading of Congress’s Commerce Clause power in the Raich case but have since denounced the application of that power in Obamacare — the unintended consequence of a shortsighted focus on maximizing drug enforcement. Indiana Republican Dan Burton was one of those who signed on; he has since sponsored a bill to repeal Obamacare’s “government‐​run” health‐​care solution. Burton and fellow drug warrior Mark Souder signed on to another repeal measure before Souder resigned amidst an adultery scandal. Georgia Republican Jack Kingston took up the charge to repeal the individual mandate as well. Former representative Ernest Istook (R., Okla.) has been on the warpath, phrasing the issue as “Obamacare vs. Limited Government.”

The Justice Department has found Raich an exceedingly useful tool in battling the legal challenges to Obamacare. In the Florida lawsuit, the DOJ claims that “Individuals who self‐​insure engage in economic activity at least as much as the plaintiffs in Raich.” The same goes for Michigan, where a federal judge recently upheld the individual mandate as a legitimate exercise of Congress’s Commerce Clause power: “As living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market.” The words “Gonzales v. Raich” kick off the government’s Commerce Clause argument in the Virginia litigation. (Disclosure: The Cato Institute has filed briefs in support of Virginia attorney general Kenneth Cuccinelli’s challenge to Obamacare.)

The jump from Raich to Obamacare is a short one, at least in the government’s eyes. The dissenters in Raich predicted the expansion of Commerce Clause authority. Justice Thomas warned that if the federal government could override a state’s licensing of medical marijuana, “then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.” Justice O’Connor noted the “perverse incentive to legislate broadly pursuant to the Commerce Clause” — the more broadly Congress writes a law, the more likely Raich’s logic is to uphold it. O’Connor discussed how the Court’s logic would allow the government to regulate (and ban) non‐​commercial activities that would detract from regulated markets, such as home‐​care substitutes for daycare. This would be funny, if a federal judge had not just ruled that being alive and breathing means you must buy health insurance or face the consequences.

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.

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