Apparently, the Supreme Court has ruled that the feds can continue to prosecute medical marijuana users:

Justice John Paul Stevens, writing the 6-3 decision, said that Congress could change the law to allow medical use of marijuana.

Well, that's very generous of him.

Under the Constitution, Congress may pass laws regulating a state's economic activity so long as it involves "interstate commerce" that crosses state borders. The California marijuana in question was homegrown, distributed to patients without charge and without crossing state lines.

Stevens said there are other legal options for patients, "but perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress."

Yes, to hell with the rights of the states. How in the world can they justify this under the Commerce Clause? It seems to me that if they can justify this, they can justify anything, and federalism is truly dead.

Apparently we need to rein in the Commerce Clause, with an amendment, though I'm not sure what it could say that would be more clear than the clause itself, other than to explicitly say that it must deal with interstate activities. And in today's political climate, how much support would there be for it, anyway?

I'll be interested in seeing the opinion, and who was in the minority.

This is quite depressing.

[Update a few minutes later]

Here's more, from SCOTUSblog:

The Court relied, as the Justice Department had urged in its appeal, upon the Court's sweeping endorsement of federal Commerce Clause power in the 1942 case of Wickard v. Filburn.

"The case," Stevens wrote, "comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the Act's findings and the undisputed magnitude of the commercial market for marijuana, Wickard and its progency foreclose that claim." The decision came in the case of Gonzalez v. Raich (03-1454).

Wickard v. Filburn was a truly disastrous case for the cause of federalism and liberty. It's too bad that the court considers precedent so sanctified. There are some decisions that are simply wrong. I can't imagine that the Founders would have ever conceived the clause being used as an excuse for a nationwide ban on high-octane hemp. Is this precedent the reason why we had to have a constitutional amendment to prohibit alcohol nationwide, but that now Congress can federally and enforceably ban natural substances by simply passing a law?

[Update at 10:50]

Justice O'Connor wrote the dissent:

Justice Sandra Day O’Connor said that states should be allowed to set their own rules.

“The states’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens,” said O’Connor, who was joined by other states’ rights advocates.

Good for her.

The legal question presented a dilemma for the court’s conservatives, who have pushed to broaden states’ rights in recent years, invalidating federal laws dealing with gun possession near schools and violence against women on the grounds the activity was too local to justify federal intrusion.

There should have been no dilemma at all. How in the world it ever became a "conservative" position to have federal law enforcement personnel throw people in jail for inhaling smoke from burning vegetation, I'll never understand.

[Another update]

She was joined by Rehnquist and Thomas, the latter of whom wrote his own separate dissent. I'm disappointed in Scalia.

[Update once more]

Jonathan Adler was right:

In this case, the federal government also maintains that it can prohibit the simple possession of a drug for medical purposes, even when authorized and regulated by a validly adopted state law, and even if conducted in a wholly noncommercial fashion. Such power, the federal government asserts, is necessary to maintain a comprehensive federal regulatory system for the use and distribution of drugs. Moreover, even the mere possession of drugs can “substantially affect” interstate commerce, as there is a vibrant, albeit illegal, interstate drug market.

This argument proves too much. Under the government’s reasoning there is no activity beyond Congress’s grasp — a position the Supreme Court has repeatedly rejected over the past ten years. Essentially, the Justice Department maintains that the power to adopt broad economic regulatory schemes necessarily entails the power to reach the most inconsequential, noncommercial conduct that occurs wholly within the confines of a single state. Even at the height of federal power during the New Deal, the Supreme Court never authorized an assertion of federal power as expansive as is at issue here. Should the Court uphold the assertion of federal power in this case, constitutional limitations on the exertion of enumerated federal powers could well disappear.

This is a travesty.

[Yet another update--I suppose I should start a new post at some point, but this is still at the top]

John Podhoretz writes, over at The Corner:

I just want to say I support the Supreme Court decision, just because some Cornerite should say it so that the legalizers don't take 100 percent of the airspace on the issue here.

This decision isn't about legalization of marijuana, any more than Roe v. Wade was about abortion (though one has to believe that, at least in Scalia's case, the fact that it was about drugs had to have factored into the decision, since it is so at odds with the gun possession case). It's about the scope and reach of federal power, and it's not at all (or at least shouldn't be) a conservative position to support it, regardless of one's views on drugs and drug laws.

[Noon update]

Orrin Kerr is starting to analyze the opinion.

[Update at 1:30 PM]

More thoughts from David Bernstein:

The five-member majority of the Court simply does not take federalism seriously...

...I was both amused and anchored by Justice Stevens's paean to the democratic process as the appropriate avenue of relief for advocates of medical marijuana at the end of his opinion. Every Justice who joined Stevens's opinion voted to prohibit states from regulating homosexual sex in Lawrence and [if they were on the Court at the time] voted to limit the government's power to regulate abortion in Casey. Why was the democratic process not the appropriate avenue of relief for the victims of overzealous government regulation in those cases? It seems we do to some extent live under a system where the personal preferences of the Justices, having nothing to do with the history, text, or logic of the Constitution, dictate when the Supreme Court will or will not intervene to overturn particular regulations.

The really depressing thing is that two of those dissenting, Rehnquist and O'Connor, are the two justices likely to need to be replaced the soonest (Rehnquist this summer, if rumors are correct).

Michael Ledeen asks:

Thomas’s dissent is part of his continuing primal scream against the use of the Commerce Clause to regulate anything that the Feds want to regulate…and tax anything they want to tax. Whazzup with Scalia, anyway? Why did he fall for this one?

I think that David Bernstein explains that up above. Scalia fancies himself a conservative and, while a brilliant man, is still a fair-weather federalist, because he apparently likes drug laws, federal or otherwise.

This was inevitable. The worst thing possible for the medical marijuana effort was to get this case in from the Supremes -- they've never overturned a federal drug law, and now the medical marijuana folks have made it worst for themselves, since Wickard was so heartily endorsed, but worse for federalism everywhere.

Uh oh

I agree with you, Rand.

After reading Scalia's opinion perhaps we need is this:

Congress shall make no law regulating intrastate activities or commerce even when there is a substantial impact on interstate commerce.

Congress shall have the power to requlate the channels, people and instruments, of interstate Commerce.

This is simply social engineering, and it's an abomination of the Commerce Clause. However it's been going on most of my lifetime and I see no end in sight. This one instance will be the least opposed, due to the subject matter. The bottom line is that marijuana use in this country peaked long ago when even the boobs of the sixties and seventies realized that if you’re a regular user you won’t get much else done. Police treat it less seriously that they did probation laws. Courts are enamored with it because it has spawned a cottage industry (Court Ordered Drug Rehab) on the offender’s dime. Even the holistic shops are invested by selling clean up kits for users. No one is fooled, but everyone is making money. If the putz flipping hamburgers wants to kill a few brain cell’s after work more power to him. It’s not like he was using them for something important. Yikes…I sound like a libertarian.

> I can't imagine that the Founders would have ever conceived the clause
> being used as an excuse for a nationwide ban on high-octane hemp.

The Founding Fathers never even conceived of the Supreme Court having the power to declare laws unconstitutional.

I don't know why the libertarian end of the blogosphere is acting so surprised about the ruling. For the last few years, the Supreme Court has finally found some limits to federal power, following the precedents of the 1930's, which suggested there were none, but what they were being asked today was to do something more--to directly undo a precedent. And from the New Deal era, no less. From a legal point of view, as well as a political one, the pro-pot people were expecting the impossible. All the Supremes said was "Wickard v. Filburn is not overturned." Well, la-di-da. I don't get the anger on the issue.

Where are all those conservative law makers screaming for the power to oust activist judges now?

You know, judges *can* be impeached and removed from the bench. A loud enough campaign that threatened the job security of enough Congresscritters might...mind you I said *might*...see some progress in that direction.

But probably not.