FreeDuck wrote:Fascinating. Scalia's dissent reads like a house of cards but Thomas brings up the question of the earlier marijuana decision, which is a valid question. I'm no lawyer, so maybe there's more to it, but it's interesting that the conservatives are coming down on the side of a strong federal govt at the expense of the rights of states to regulate medical practice. I thought it was supposed to be the other way around.
Thomas's dissenting opinion reads like SOUR GRAPES. Thomas dissented in Gonzales v. Raich. See his dissent here:
http://straylight.law.cornell.edu/supct/html/03-1454.ZD1.html
Quote:Respondents 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.
As I explained at length in United States v. Lopez, 514 U.S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586—589 (concurring opinion).
If Thomas was being TRUE to his constitutional analysis, he would have ruled that the CSA may not be interpreted by the Attorney General to regulate the medical profession (an activity reserved to the states) by determining what is or is not legitimate medical treatment.
Marijuana is a SCHEDULE I drug. Its possession or distribution is completely prohibited. Pure intrastate possession of a Schedule I drug can be reached under the holding of Wickard v. Filburn. Apparently, Thomas is not pleased with that piece of constitutional jurisprudence when he states, "The CSA undoubtedly regulates a great deal of interstate commerce, but that is no license to regulate conduct that is neither interstate nor commercial, however minor or incidental." In order to obtain the result he desired under Raich, it appears that Wickard and its progeny would have to be overruled.
The Gonzales v. Oregon does not concern itself with any Schedule I drugs that are absolutely prohibited in our "war against illicit drugs." Under no circumstances is it lawful for any doctor to prescribe a Schedule 1 drug for medicinal purposes. However, this case concerns Schedule II drugs that state-licensed physicians are indeed entitled to prescribe to their patients. Thomas's dissent in Gonzales v. Oregon fails to recognize this HUGE distinction between a Schedule I drugs and a Schedule II drugs. His dissent is sour grapes, pure and simple.
