Tuesday, June 07, 2005

One Toke over the Line

Well, thanks to a 6-3 decision handed down on Monday, the Justice Department has once again managed to put the fear of God into the hearts of AIDS and cancer patients all across that decadent land known as California. I can't wait to see the press photos at their next bust. It's almost hard to believe that they would fight for the opportunity to have such a horrible public relations disaster. But, what do I know?

As I've thought about this case today, I find that I keep coming back to the idea that drugs make people crazy. You don't even have to take them; just injecting the subject into the discussion is enough to drive otherwise rational people into intellectual knots. It never ceases to amaze me, and this case is no exception.

The argument put forth by the respondents (i.e. the potheads) was simple enough. The federal Controlled Substances Act is limited by the Commerce Clause to regulating interstate economic activity. Since the respondents consumed their own product, there was no economic transaction. And since the activity occurred in their living room, it was all intrastate. I mean, to rule against this position you'd have to be willing to assert that this activity would substantially affect the national cannabis market.

Unfortunately, that is exactly what seems to have occurred. By relying on a precedent set in Wickard v. Filburn, the court ruled that Congress has the ability to regulate noncommercial intrastate activity because such activity "has a substantial effect on supply and demand in the national market." Moreover, the standard for such an assertion is rather low. The government doesn't have to prove that the existence of medical marijuana would affect the national market, it merely has to demonstrate that "a 'rational basis' exists for so concluding."

For the government, this low standard of proof is awfully fortuitous, as the evidence for said market impact is rather scarce, to say the least. Justice O'Connor seized on this point in her dissent:
There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market–or otherwise to threaten the CSA regime.



The Government has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime.
So, without actual evidence, we're down to the so-called "rational basis" for the market effect conclusions. But, in truth, how rational is this conclusion? It appears to be justified largely by an Econ 101 understanding of supply and demand laws. Medical marijuana patients, with access to legal domestic supplies, would drop out of the national market. With fewer consumers for illegal product, prices would drop as demand declined. Since these lower prices would make it easier for marijuana consumers to acquire their product, this market effect would undercut the intent of the Controlled Substances Act. It's an explanation good enough to satisfy any first-year Econ student.

Of course, some people move beyond Econ 101 and discover that real markets are a good deal more complicated than those described in first-year textbooks. In particular, illicit markets endure specialized costs not present in legitimate economies. Mark Kleiman explains this for us.
In the case of marijuana and other illicit drugs, the dominant cost facing any producer is the cost imposed by law enforcement (employees and principals alike need to be compensated for their risks of arrest and imprisonment) and the cost of evading law enforcement.

Roughly speaking, the enforcement risk faced by the average drug transaction depends on the ratio of the volume in that market to the enforcement effort devoted to suppressing it. If there's one dealer on a street corner and one cop patrolling it, the dealer is much more likely to get busted than if the same cop confronts 100 dealers. That "safety in numbers" principle is why prey animals herd.

So if we take some of the demand out of the illicit marijuana market in a way producers in that market can predict, they will likely reduce the amount they produce. If we leave the enforcement effort constant, each remaining kilogram of pot faces more law enforcement. Thus we would expect the price of illicit pot to rise…as a result of removing medical demand from the market.
It seems to me that there is as much of a "rational basis" for concluding that medical marijuana will drive the price of illicit marijuana up as there is for concluding that it will drive it down. Of course, the truth is that the marijuana market is so complex that it is impossible to rationally conclude anything at all with respect to prices. Therefore, this isn't really about rationality at all -- it's about convenience.

Take a look at these comments from Ann Althouse posted over at SCOTUSblog.
Justice Stevens wrote what I thought the Court would have to say: if noncommercial, homegrown marijuana were seen as beyond the Commerce Power for medicinal users, it is also beyond the Commerce Power for recreational users. The theory is the same, that noncommercial user-producers can’t be included in the Wickard-style analysis.
This is, without a doubt, a problem with ruling in favor of the respondents. If all it takes to evade federal drug prosecution is that you produce and consume all of your own product without ever crossing state lines, you've created a loophole to be seized upon by every pothead in the land. Better to whip up some supply and demand justification than to face the consequence of a more honest ruling.

But, I'm no longer surprised by the contortions that prohibition advocates will perform in order to maintain the status quo. The case for medical marijuana couldn't be clearer. Despite the current scheduling of marijuana within the Controlled Substances Act, there is an enormous amount of clinical data demonstrating the medicinal effects of cannabis. The government, if it were so inclined, could easily develop a system in order to manage distribution and prevent diversion into the illegal market.

But doing so would undermine the central message of prohibition: drugs are bad. They realize (rightly so) that once the absolutism of this message is pierced in any way, the questions will begin to fly fast and furious. If marijuana can be used as medicine, is recreational use really that harmful? If not, is it really worth the societal costs preventing it? What if we began to see marijuana use as separate from other types of drug use? Would the levels of use in these remaining drug classes be high enough to justify the crisis rhetoric consistently emanating from the ONDCP? If not, how would the DEA budget be affected?

From a strictly legal perspective, this decision was hardly surprising. It appears to be well justified by existing case law and judicial analysis. But, this decision, like many before it, is based upon irrational justifications for the government's regulatory goals. The central premise, that it is in the interest of society to regulate recreational drug consumption, is never challenged. In fact, the government will go to almost any length in order to avoid answering that very question. Every discussion begins by accepting the truth of that claim.

However, that claim is undeniably false. There are few things in this world that I'm prepared to declare with absolute certainty. This is one of them. Too many are blinded by the hype and hysteria surrounding drug use to see the reality. But, there is no question that we pay a high price for this course of action. Hopefully, that will one day become clear.

Until then, let's hope we don't see too many glaucoma patients in handcuffs.

Update: Naturally, Publius has a take on this case that's worth reading. In short, he believes the case to be correctly decided, in that the court properly held that the Legislature should be the final arbiter of the Commerce Clause. I'm not sure that I agree, given that appropriate application requires that there be a "rational basis" for concluding that the national market is affected by medicinal marijuana. Somebody has to make that evaluation and Congress clearly isn't up to the task.

On the other hand, the judiciary doesn't seem to fare much better on this front. So, perhaps it doesn't matter at all.
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