JUDICIAL DISCRETION

Alternet has a good article on State's Rights v. Federal Tyranny. Dave Morris traces the history behind the fed's use of the Intrastate Commerce Clause against legal conduct under state statutes and looks at the recent 9th Circuit decision regarding federal raids against medical marijuana patients. The plaintiffs had asked for an injunction against future raids until their case reached a final disposition. A lower court denied the motion. The Circuit court overturned that decision.

The three-judge panel found that the plaintiffs are indeed likely to succeed in proving that the federal law, as it applies to them, is unconstitutional. It directed the lower court to issue the injunction.

The case is expected to go all the way to the US Supreme Court and Morris offers hope for a favorable outcome noting "recent Supreme Court rulings limiting the federal government's ability to criminalize personal behavior".

In any event, the Circuit Court certainly got it right.

In its decision about medical marijuana the 9th Circuit Court reasoned that homegrown for one's own use "is not properly characterized as commercial or economic activity." Moreover, it concluded that any health and safety considerations were alleviated if not eliminated by the requirement that a doctor's prescription was necessary.

Morris further notes, even as the federal morality police ramp up their assault on personal liberty, the judiciary is coming to its senses.

So here we are. Conservatives dominate all three branches of government. They are using their control of the legislative and executive branches to assert their authority to police individual behavior. Meanwhile, their brethren on the judicial bench are using arguments from a pre-New Deal era to deny them that authority.

It's worth reading the whole thing.