tdaxp

"College Fails in Bid to Grow Marijuana," by Donald G. McNeil, Jr., New York Times, 14 December 2004, http://www.nytimes.com/2004/12/14/national/14marijuana.html (from Democratic Underground)

"What's New in the Legal World? A Growing Campaign to Undo the New Deal," by Adam Cohen, New York Times, 14 December 2004, http://www.nytimes.com/2004/12/14/opinion/14tue4.html

A related article and op-ed. Both have some baggage, but both deal with a fundemental issue. The first chronicles a big-government crackdown on a state institution. The latter deals with some implications of the counter-attack.

A longstanding request to grow marijuana at the University of Massachusetts so it can be tested for medical uses has been turned down by the Drug Enforcement Administration.

The decision was faxed to the university on Friday and made public yesterday by the Marijuana Policy Project, an independent group that favors legalization of marijuana, particularly for medical uses.

...And last month in the Supreme Court - in a case about medical marijuana - the justices found themselves having to decide whether to stand by Wickard.

In that case, two Californians who use marijuana for medical reasons argued that Congress, which passed the Controlled Substances Act, did not have the constitutional power to stop them. To pass a law, Congress needs a constitutional hook, and the Controlled Substances Act relied on one of the most important ones, the Commerce Clause, which authorizes Congress to "regulate Commerce ... among the several States." The Californians argued that their marijuana did not involve interstate commerce because it never left their state.

That is where Wickard v. Filburn comes in. Roscoe Filburn was a farmer who argued that his wheat crop should not fall under federal production quotas because much of it was consumed on his own farm. The Supreme Court held that even if that wheat did not enter interstate commerce, wheat grown for use on a farm altered supply and demand in the national market. The decision gave Congress broad power to regulate things that are located in one state, like factories and employer-employee relationships.

Some leading conservatives want the court to overturn Wickard and replace it with a pair of decisions from the 1800's that one brief filed in the case said would return "Commerce Clause jurisprudence to its settled limits prior to the New Deal." That would be a bold move, but the court has already been heading down this path. In recent years, it has struck down the Gun-Free School Zones Act and a crucial part of the Violence Against Women Act for exceeding Congress's power.

It may be, however, that the justices are quicker to limit Congress's power when it does things they don't like (like gun regulation) than when it does things they do (like drug regulation). They may be waiting for a more congenial case.

If the Supreme Court drifts rightward in the next four years, as seems likely, it could not only roll back Congress's Commerce Clause powers, but also revive other dangerous doctrines. Before 1937, the court invoked "liberty of contract" to strike down a Nebraska law regulating the weight of bread loaves, which kept buyers from being cheated, and a New York law setting a maximum 10-hour workday. Randy Barnett, the law professor who represented the medical marijuana users, argues in a new book that minimum wage laws infringe on "the fundamental natural right of freedom of contract."

In its order, drug agency said the lone government-licensed marijuana farm, operated by the University of Mississippi, grew enough for researchers. It said that 18 medical studies using the drug had been approved since 2000.

But Dr. Lyle E. Craker, the professor of plant biology at the University of Massachusetts who applied for the license three years ago, said researchers complained that the government's marijuana was weak and that it was hard to get permission to use it.

"We wanted to have a source independent from the government and with a known potency so doctors can run clinical trials," he said. Researchers would still have needed D.E.A. permission to work with the drug.