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High Times and Misdemeanors--A Commentary by Judy Coleman '06

(This essay was originally posted on Slate.com on Friday, March 10, 2006.)

High Times and Misdemeanors
What the Supreme Court's drug cases may tell us about limits on federal powers.
By Judy Coleman '06

One of the counterintuitive legacies of the Rehnquist Court is that, on his watch, the nation's drug cases took on new constitutional dimensions. Rehnquist famously criticized federal regulation for encroaching on states' rights in his landmark opinion United States v. Lopez. That's when "federal" really began to be a dirty word. Few federal laws have the reach and ambition of the Controlled Substances Act, which provides the framework for national drug enforcement. Because both the legislative and executive branches have a role in determining how the CSA is enforced, the law sets up constitutional questions about the relationship between the federal government and the states, and among the branches of the federal government itself.

Over the past two terms, the Supreme Court has decided several highly publicized challenges to the CSA, including decisions about medical marijuana in California, assisted suicide in Oregon, and religious freedom in New Mexico. Though each was headline-worthy on its own, these cases, read together, also give us a peek at what the justices might be thinking about the separation of powers these days. And while the cases are arguably just about drugs, they may foreshadow future cases about federal power.

If these recent opinions are any guide, the justices just can't seem to get high on the idea of unfettered executive power lately--especially if the only terrorists involved are the radical voters of Oregon. The problem for the president isn't that the court has gone liberal--he's certainly made sure that won't happen. Instead, it's that the court has gone libertarian-conservative. That's the kind of conservative who doesn't jibe with the Big Brother state. And it may not be the kind that hands out "blank checks" in the war on terror.

Start with Gonzales v. Raich, the medical-marijuana decision handed down in 2005. The plaintiffs were two cancer patients who argued that they could not be subjected to the federal drug laws' blanket prohibition on marijuana use because their supply came from plants cultivated and consumed solely in California. Congress can write, and the attorney general can enforce, only laws regulating interstate commerce, they argued.

In an inversion of what you might expect, the four liberal justices, plus Justice Anthony Kennedy and Justice Antonin Scalia in a concurrence, lined up to support the government's side--arguing that medical-marijuana consumption within one state could indeed affect the national marijuana market. Meanwhile, the other three justices, forced to abide slavishly by the principles of limited national government enshrined in Lopez, dissented in favor of the plaintiff pot smokers.

Raich is technically a case about executive power--that is, the attorney general's ability to enforce federal drug laws in spheres that are questionably federal. But the real issue was how far Congress is allowed to go when it writes the laws in the first place. The court's judgment for the federales is best read as deference to the legislature, not an endorsement of the sometimes overreaching way drug laws are enforced.

Raich also rejects, implicitly, the argument made by the plaintiffs that they were deserving of special-group status, as a small class of people just trying to get through life without unnecessary pain and suffering. But the court couldn't tell how the perimeter around that special group could be drawn to prevent it from including half the potheads in the Bay Area. Haunted by visions of newly diagnosed "glaucoma" sufferers lining up for their stash with forged doctors' notes in hand, the court held that making this one exception might in fact unravel the entire national drug-enforcement regime.

The court didn't see the same purple haze on the horizon in the drug cases presented this term. The questions in these cases directly addressed the executive branch's power to enforce the laws against clearly discrete groups of people--doctors in one case, and a religious sect in another. Raich endorsed the federal power to regulate and prohibit drug use; the cases this term would consider the attorney general's discretion to take that power and run with it--into the bedrooms, exam rooms, and the hallucinogenic dreams of Americans everywhere. In these two cases, the court has resisted delivering the party line, as it did, albeit uneasily, in Raich.

Gonzales v. Oregon, also known as the "right to die" case, involved a face-off between the attorney general and the citizens of Oregon, who had voted by referendum to allow assisted suicide by injection, in limited cases. Gonzales' predecessor John Ashcroft had issued an "interpretive rule" of the CSA, which essentially prohibited doctors from administering those drugs. The court, led by its new star center Justice Kennedy, held that the attorney general's interpretive rule couldn't even pretend to have the status of law. In fact, it wasn't even a reasonable reading of the law.

Doctors tend to get wide berth from courts because they possess a substantial body of knowledge completely foreign to judges. More important, though, medicine, and the licensing of physicians, has always been regulated by the states. It's one of the few areas left where the federal government has been loath to set national standards. To overcome all these presumptions, Gonzales would have had to show that Congress really, really wanted him to be out there, in Oregon, telling doctors what not to do. Casual legal readers, if they exist, may have been surprised to find an opinion that sidestepped intense moral debates in favor of eyeball-drying administrative law. The CliffsNotes version: "This is one corner you don't own, Alberto."

Gonzales received his second wrist-slap this term in the O Centro Espirita decision, handed down in February. The court held that the government couldn't prevent the members of a Brazilian religious sect from drinking hallucinogenic tea. Doing so would violate their rights under the Religious Freedom Restoration Act. The opinion is shocking for two reasons: First, it's unanimous; and second, it gives quasi-constitutional status to the RFRA. This endlessly fascinating law allows individuals to block the enforcement of other, less fascinating laws, if those laws burden their religious practices.

In the O Centro case, the question was whether, under RFRA, the government really needed to prove that it had a "compelling interest" in enforcing the drug laws against this particular religious sect. The law explicitly states this is what the government has to prove, and the feds were trying to wriggle out on a procedural distinction. No wonder the case was unanimous, with that argument. Congress makes the rules, Chief Justice John Roberts said, you gotta play by them. Jesus of the Amazon: 1, Alberto Gonzales: 0.

It would be wrong to extrapolate some grand unifying theory of executive power from a completely unrelated set of cases, argued before a court undergoing personnel changes. The Guantanamo detainees are no more likely to have a good day in court because Gonzales lost out to a bunch of nonviolent drug users.

But what we do see in these cases is that where the executive branch uses a far-reaching federal law solely to try to get at special types of communities, the executive branch may lose. The court can safely go toe-to-toe with our nation's drug-enforcement kingpins, without prompting a right-wing backlash, because these decisions are based on traditionally conservative values: states rights, decentralized government, and the superiority of God's law over man's law. The interesting question, in the upcoming war on terror cases, will be whether Guantanamo detainees or the victims of warrantless wiretapping will emerge as sympathetic groups as well.

Moreover, the court's opinions in these cases won't get attacked for letting criminals run free in the streets. These cases only vindicate the causes of discrete groups of people who aren't likely to abuse their privileges. Doctors regulate themselves, and religious sects tend to be known quantities, until they start amassing Kool-Aid or guns. Californians looking for an excuse to blaze up, on the other hand, need to wait until the next election cycle.


Judy Coleman is a third-year student at Yale Law School. She is organizing the Yale Law Journal's Symposium on Executive Power, to be held this March.