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(AP:) “Federal authorities may prosecute sick people whose doctors prescribe marijuana to ease pain, the Supreme Court ruled Monday, concluding that state laws don’t protect users from a federal ban on the drug. The decision is a stinging defeat for marijuana advocates who had successfully pushed 10 states to allow the drug’s use to treat various illnesses. Justice John Paul Stevens, writing the 6-3 decision, said that Congress could change the law to allow medical use of marijuana.”
Now, this was a closely watched case, and it was an appeal by the Bush administration in a case that it lost in 2003, and at issue was whether the prosecution of medical marijuana users under the federal Controlled Substances Act was constitutional. Under the Constitution, Congress may pass laws regulating a state’s economic activity so long as it involves interstate commerce, and that’s what’s interesting about this because there arguably is no interstate commerce in this. If you are sick in California — forget that this is marijuana, I want to talk about this on the constitutional side. When I saw this ruling, you know, I kind of chuckled. I wondered what the libs are going to do with this. How are the libs are going to react to this?
Let’s say that you are sick, you have cancer and your doctors prescribe medical marijuana for you in California, whatever state that made it legal. So you go get the marijuana, however it’s delivered to you, and you use it to alleviate your pain or whatever it is you’re suffering, your nausea, whatever it works for, I’m not sure. I don’t see where the interstate commerce is there. In fact, folks, it’s hilarious to read Justice John Paul Stevens lecturing about democracy because he’s the leading judicial supremacist on the Supreme Court, and he routinely leads the effort to rewrite federal law even if it involves using foreign law. And in this case he basically said federal government trumps state law, and if Congress wants to change it they can go back and refuse to write a law in this case. It’s sort of hilarious. But I want to look at this from the constitutional viewpoint, because look, whether it’s legal or not, marijuana, that’s not the point I want to get into here and I’m saying it because I don’t want phone calls all day from the legalize marijuana crowd. I understand you’re out there, but I don’t want to deal with it. I mean, I understand you believe what you believe, that’s not the point of this ruling to me, not in a constitutional sense.
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All right, federal authorities may prosecute sick people who smoke marijuana on doctor’s orders, Supreme Court ruling today. Let’s just look at this a moment from a constitutional viewpoint. I’ve had just the barest amount of time to read the opinion, but based on the news story here, the Associated Press story, the majority’s decision, it was 6-3, by the way, the majority’s decision was based on the federal commerce clause. Now, for interstate commerce to occur, there needs to be a transaction between someone in a legal transaction between someone in one state and someone in another state. In this case, the product is home grown, it’s used within the state, and it’s used under state authorization. I’m not commenting on whether I like the idea or not. It’s not the point, but the people of these ten states voted for this. You know, once again states’ rights have just been squished here by the federal Supreme Court, the US Supreme Court. So, you know, take the issue out of the argument here for just a second. The question is this: What does this have to do with interstate commerce legally?
The answer is nothing. This opinion does not deal with the possibility that patient A in a state gets a legal dose of marijuana then sends it to a buddy who’s not sick in another state. Doesn’t deal with that. That’s not what is being adjudicated here. I’ll tell you where this case goes back to. This all goes back to the New Deal, folks, that is where the Supreme Court had to come up with a way to uphold all the programs that Congress was passing even though they had no power to do so under the Constitution.
Remember, the Constitution gives the federal government limited enumerated powers, and after Roosevelt tried to pack the court, the court became far more political and supportive of his agenda. Now, there was a 1942 case Wickard vs. Filburn, and in that case the Supreme Court issued what is a ridiculous decision, holding that a farmer who had grown wheat on his own farm for his own use and consumption and which was never sold or traded out of the state, was nonetheless involved in interstate commerce because the fact that he did not sell his wheat out of state or purchase wheat out of state for his own use, somehow effected interstate commerce. This is what they ruled. In other words, there would no longer be any limits to the federal government’s power to regulate state and private economic activity. Now, this is not what the framers intended or what the Constitution provides. But this is what the 1942 Wickard vs. Filburn Supreme Court case resulted in. So we have people who went to the polls in several states, they voted to allow the state regulation of medical marijuana. Now, you put the politics of this aside and which political forces are on one side or the other, put even the policy aside, this is a constitutional issue for the court. So, you know, I will be interested in knowing more about the case, and I will reserve ultimate judgment until we read the arguments in full but based on this news story, this Associated Press story, you know, this is how I see it. Now, the court did in fact, we know this much, the court did in fact rely heavily on Wickard vs. Filburn in making this ruling. That’s the case which brought us the New Deal, that is the case which made the New Deal constitutional, if you will, 1942, commerce clause includes commerce solely within a state. The interstate commerce clause deals with the commerce among the several states, but the 1942 Wickard vs. Filburn case said no, no, no, no, interstate commerce can be commerce within a state. But it’s hilarious to read Justice Stevens lecturing about democracy because he’s the guy that wants to look at foreign law a lot, writes his own law from the bench. He did say in this case if Congress wants to change this they can write a law specific to it.
The other reason Congress has to write a law specific to it is because the US Supreme Court in 1942, in order to authorize the New Deal and make it constitutional, went ahead and changed the Constitution without there being such a law on the books. So Congress now has to go back and correct what the 1942 Supreme Court did if they want to limit interstate commerce to one state or prohibit interstate commerce from including one state. It’s now up to Congress by this decision to go back and say, “No, no, no, no, Wickard vs. Filburn, that’s not what we meant. If a state passes a law on medical marijuana, and the people there vote for it, the representatives vote for it, that’s not interstate commerce.” That’s how convoluted things have become, folks. The court might say the law is unconstitutional, if Congress did try to — yeah, just because Justice Stevens said Congress will have to write a new law doesn’t mean that this court would find a new law constitutional if it contradicts one of its own decisions. And this is where you get into this whole argument, “Do we have any recourse to deal with the courts, even with our elected officials?” I mean, in this case, Justice Stevens in his majority opinion clearly says Congress needs to go back, they want to make this legal and rewrite it. But it’s convoluted because without the previous Supreme Court case — I hope I’m making this understandable. It’s so crazy, you might think, “Rush, there’s something you’re missing here. How can they do this, how can they say interstate commerce is state commerce? How can they say that?” They did. It was crucial, folks, in establishing the New Deal, and by the way, making the New Deal constitutional is part of institutionalizing the New Deal and its ideological underpinnings, which are liberalism, so it’s a convoluted case.


Again, I don’t want to spend any time today, Mr. Winterble, on legal marijuana, illegal marijuana, it’s happened before on this program and when it starts… I mean, these calls last for a week, so I just don’t want to go there. By the way, one of the reasons Janice Rogers Brown — by the way, her vote comes up this week, her vote could come as early as Wednesday with William Pryor, perhaps, on Friday. Now, Janice Rogers Brown, in that famous speech that we posted on our website and I read excerpts from on this program about three weeks ago, she questioned the whole constitutional underpinning via Supreme Court decisions of the New Deal and that’s why Ted Kennedy and others just threw up their arms in opposition, how could she dare do this? She says when the Constitution was altered by the US Supreme Court in this case and others in order to legalize the New Deal and make it constitutional by twisting and bending the Constitution that’s when she says an aura of — used the word socialism — was sanctioned as a means of governing the country and that’s why she has been under such vicious assault.
There was another Supreme Court decision today, and it is this. “The Supreme Court, expanding the scope of a landmark federal disabilities law, ruled Monday that foreign cruise lines sailing in U.S. waters must provide better access for passengers in wheelchairs. The narrow 6-3 decision is a victory for disabled rights advocates, who said inadequate ship facilities inhibited their right to ‘participate fully in society.'” Here’s the majority. Kennedy, who wrote; John Paul Stevens; David Souter, Ruth Bader Ginsberg and Stephen Breyer. The dissent was written by Justice Scalia. He argued that extending the federal law to foreign ships, “will create international discord and is wrong because Congress did not explicitly call for it. The ruling should leave no opening for ships to be required to change their amenities to fit the laws of each country they visit,” he said. This is sort of the international law argument in reverse, if you will, because Scalia said not only should we not import foreign law into our decisions, we shouldn’t impose our law on other nations. Now, seems to me that Scalia is being quite consistent here. The others are not. Now, I know many of you say, “Rush, this is harmless, so what, they should have to modify this.” It’s all a matter of law and the Constitution, folks. Take your feelings out of these things and take each issue out of it, and examine what the court’s doing, you have a better understanding of why so many people are concerned and why so many people say the judiciary is out of control and needs to be reined in.
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RUSH: Talking about Justice Stevens saying that Congress wants to change the Supreme Court ruling today, they need to go write a new law. I was in error. He was not suggesting write a law that would conflict with the previous Supreme Court decision. What he was saying was, if Congress doesn’t like this they can write a law legalizing marijuana use for medical purposes. So that’s his suggested remedy, Congress can write a law legalizing marijuana use if they don’t like this ruling.
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RUSH: Everett in Elk Grove, California. We go back to the phones. Welcome, sir, nice to have you with us.
CALLER: Dittos, Rush.
RUSH: Thank you, sir.
CALLER: I am disabled but I think that law — or the court’s judgment isn’t exporting our law because I think any ship or airplane that comes into our waters or on our land needs to be obey our laws. I want to take away — let’s say it’s not the disability act. I woke up the second Friday in May of ’69 totally blind so I have a sensitivity to disabled people, but let’s take that law out, and let’s say the boat was licensed in a country where it’s legal to have sex with 12-year-olds, we wouldn’t be able to — when it came into New York harbor, we wouldn’t be able to do anything about it. So I think they should apply, and I don’t really think it’s exporting —
RUSH: Now, I don’t think that’s the point. I don’t think anybody would be drawing that conclusion. I don’t know that any country has sex with 12-year-olds legal, particularly on their cruise ships. If somebody does, I know a bunch of people are going to be signing up. I don’t know them personally, but I mean you just know that if that’s legal you’ll have some people signing up for this. It doesn’t happen. See, this is the problem. This is the problem. We’ve got somebody who’s disabled and that trumps everything. And I said, forget the issue. Not only in this, but on the medical marijuana. This is an exercise, it was an attempted exercise in explaining why some people are upset about what some think is an out-of-control judiciary that needs to be reined in. On the one hand we have a Supreme Court, which says, “Yeah, it’s totally fine to incorporate foreign law into US constitutional law as we decide cases here, it’s totally fine to consult foreign thinking if we can’t find any.” By the way, this is all about the personal policy preference of the justices, so we can’t find anything in American law that backs up what I want to do, go find it in international law. Then they import it, bammo, we can do it because we’re the Supreme Court. Scalia says no, you shouldn’t do that. By the same token, if we’re going to say that the Americans for Disabilities Act applies to ships that are made and registered in foreign countries, then we ought to be able to say that every other one of our laws applies to any business that does business in the United States or with Americans and so forth, and look, I’m in the majority on this. It was a 6-3 case, and even my buddy Clarence Thomas was in the majority on this case. Scalia was the only one dissenting in this, but it may not even be the best example, because nobody here is against helping out disabled people. That’s why this is such a tough thing to argue on this side of it because it’s such an emotional case, or situation, disability. But, you know, the Americans with Disability Act has a lot more to it than just wheelchair access or access for blind people. The Americans with Disability Act has been used to say alcoholism is a disease and you can’t fire anybody for it, so technically a cruise line could have a drunk waiter and they couldn’t get rid of him when he’s working in US waters if you’re going to go this way. It’s up to you, folks, your country. You know, I got mine.
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Excerpts of Monday’s Supreme Court Ruling
POSTED: 10:22 am PDT June 6, 2005
WASHINGTON — Excerpts from the Supreme Court’s medical marijuana ruling:
“The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market. The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients’ medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious. Moreover, that the national and international narcotics trade has thrived in the face of vigorous criminal enforcement efforts suggests that no small number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it is feasible to do so.” –Justice John Paul Stevens, writing for the majority.
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“Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the federal government is no longer one of limited and enumerated powers.” –Justice Clarence Thomas, dissenting.
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“Relying on Congress’ abstract assertions, the court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some states, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.” –Justice Sandra Day O’Connor, dissenting.
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“Not only is it impossible to distinguish “controlled substances manufactured and distributed intrastate” from “controlled substances manufactured and distributed interstate,” but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market — and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular state. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for ‘medical’ marijuana and the more general marijuana market.” –Justice Antonin Scalia, concurring.
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“The majority prevents states like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. … Our federalist system, properly understood, allows California and a growing number of other states to decide for themselves how to safeguard the health and welfare of their citizens.” –Thomas in dissent.
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“The case is made difficult by (the California women’s) strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case.” –Stevens in the main opinion.

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