Earlier I came across an amazing statement by our highest court:

“Obviously, direct control of medical practice in the states is beyond the power of the federal government.”

The Supreme Court said that in a unanimous 1925 opinion which held that the Harrison Narcotics Act could not be used to prosecute doctors who prescribe narcotics to addicts. (Previous rulings had led the DEA’s federal precursors to state that “An order purporting to be a prescription issued to an addict or habitual user of narcotics, not in the course of professional treatment but for the purpose of providing the user with narcotics sufficient to keep him comfortable by maintaining his customary use, is not a prescription within the meaning or intent of the Act: and the person filling such an order, as well as the person issuing it, may be charged with violation of the law.”)

The court added this:

Federal power is delegated, and its prescribed limits must not be transcended even though the end seems desirable.

The opinion — Linder v. United States (268 U.S. 5, 1925) — even has its own Wiki entry, which notes pithily:

With the passage of myriad later laws, including the Controlled Substance Act which gives no exemption whatsoever to Schedule I drugs, and the end of Lochner era, the holding of Linder has now been mostly overruled or superseded.

Yeah, I would say so. But what accounts for this usurpation of power?

My question is, if it was obvious to a unanimous Supreme Court that “direct control of medical practice in the states is beyond the power of the federal government” in 1925, and we still have the same Constitution without a single amendment giving the federal government such power, then what the hell happened?

What is obvious today is precisely the opposite of what was obvious in 1925.

How did an obvious lack of power become obvious power?

UPDATE: My thanks to Glenn Reynolds (a constitutional law professor) for the link!

As to why the constitutional limitation on federal power was more “obvious” in 1925 than in later years, perhaps it was FDR’s court-packing and early retirement plan that led to the usurpation of power commonly known as the “living, breathing Constitution.”

Comments welcome, agree or disagree.