On Wednesday, May 4th, 2016, the Missouri Supreme Court will hear two separate appeals of marijuana felony convictions in the cases of Natalie and David DePriest of Farmington, Missouri (this DailyJournal Online article has good coverage of the overall case and issues under litigation).
The legal issues in the appeal are fairly technical, and reasonable people might disagree on the merits. However, starting on page 68 of the government’s brief to the Missouri Supreme Court in the Natalie DePriest case, Attorney General Chris Koster and Assistant Attorney General Mackleprang defend the “rational basis” classification of marijuana as a Schedule 1 drug with no accepted medical use. On pages 70-72 of the brief, Koster and Mackleprang cite talking points from the Obama Administration’s Office of National Drug Control Policy and the National Institute of Drug Abuse, two federal agencies that have impeded the basic science of cannabinoid research for decades (as detailed in this report from the Drug Policy Alliance).
Here’s the thing: reasonable people can disagree on the merits of the more esoteric legal issues involved in the DePriest appeal. But General Koster went further than that in supporting his arguments with federal propaganda and repeating discredited theories and junk science.
It’s also worth noting Koster’s citation of Raich v. Gonzales () on page 66,
See generally Raich v. Gonzalez, 500 F.3d 850, 866 (9th Cir. 2007) (“federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering”); United States v. Fry, 787 F.2d 903, 905 (4th Cir. 1986) (“There is no fundamental right to produce or distribute marijuana commercially.”). Thus, it cannot be said that plea counsel was ineffective for failing to assert a strict-scrutiny challenge to § 195.017.
The expansive federal Commerce Clause powers that were granted by the federal courts in Raich are also the powers claimed by the federal government under Obamacare. As Cato analyst (and Mizzou grad) Timothy Rittgers writes:
The Justice Department has found Raich an exceedingly useful tool in battling the legal challenges to Obamacare. In the Florida lawsuit, the DOJ claims that “Individuals who self-insure engage in economic activity at least as much as the plaintiffs in Raich.” The same goes for Michigan, where a federal judge recently upheld the individual mandate as a legitimate exercise of Congress’s Commerce Clause power: “As living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market.” The words “Gonzales v. Raich” kick off the government’s Commerce Clause argument in the Virginia litigation. (Disclosure: The Cato Institute has filed briefs in support of Virginia attorney general Kenneth Cuccinelli’s challenge to Obamacare.)
The jump from Raich to Obamacare is a short one, at least in the government’s eyes. The dissenters in Raich predicted the expansion of Commerce Clause authority. Justice Thomas warned that if the federal government could override a state’s licensing of medical marijuana, “then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.” Justice O’Connor noted the “perverse incentive to legislate broadly pursuant to the Commerce Clause” — the more broadly Congress writes a law, the more likely Raich’s logic is to uphold it. O’Connor discussed how the Court’s logic would allow the government to regulate (and ban) non-commercial activities that would detract from regulated markets, such as home-care substitutes for daycare. This would be funny, if a federal judge had not just ruled that being alive and breathing means you must buy health insurance or face the consequences.
An Attorney General is an elected executive law enforcement position. In this office, General Koster has vast discretion over what his office appeals at the appellate courts and how. In the Natalie DePriest appeal we have an insight into the vastly broader agenda of federal power that Koster defends. Missouri deserves an Attorney General that will consistently advocate from a perspective that does not embrace expansive federal powers that encroach on the fundamental rights that are vested in the people or in our state.