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MEDICAL MARIJUANA:
U.S. MUST TURN TO CONGRESS AFTER RULING
The first thing to keep in mind when considering the U.S. Supreme
Court's 6-3 ruling that federal law still prohibits any possession of
marijuana, even for medical purposes, is that the decision does not
invalidate state laws allowing the use of marijuana for medical
purposes with a physician's recommendation.
The second point is that even the court's majority decision conceded a
great deal to proponents of legitimizing the medical use of marijuana. Justice John Paul Stevens, writing for the majority, rather explicitly
challenged reform advocates to work on Congress if they want the law
changed.
The facts in the case are simple. Angel Raich and Diane Monson, two
women with serious illnesses who use cannabis under medical
supervision, as is legal under California law, either grow their own
cannabis or have friends grow it and give it to them. No money changes
hands. This all occurs within the borders of the state of California.
The U.S. Constitution allows for -- even encourages -- some creative
friction between how state governments and the national government
approach certain issues. A system that gives the central government
certain limited enumerated powers and reserves other powers to the
states and to individuals permits states to function as "laboratories
of democracy," trying different approaches to see how they work.
A high court genuinely devoted to federalist principles and limited
government should easily have come to a different conclusion than it
did Monday. Four of the six majority justices in the Raich case
apparently believed that allowing Angel Raich and Diane Monson to use
cannabis under a doctor's supervision would undercut congressional
authority.
The three justices who dissented -- Sandra Day O'Connor, William
Rehnquist and Clarence Thomas -- are generally viewed as part of the
court's conservative or moderate wing.
The decision leaves the complex laws surrounding medical marijuana
where they were before. Laws in 10 states allow people with a doctor's
recommendation to use marijuana medicinally. State, county and local
officials are sworn to uphold state law.
Federal law is different. The decision reaffirms the fact that federal
authorities have the power under federal law to go after medical
marijuana patients and perhaps caregivers who supply cannabis -- but
not doctors who write recommendations. The open question now is how
aggressively they will use that power.
Congress is likely to take up the Hinchey-Rohrabacher amendment, which
would deny the Department of Justice funds to surveill, arrest or
prosecute medical marijuana patients in states that have passed
medical marijuana laws. That might not be precisely the congressional
remedy Justice Stevens had in mind, but it would be a good start.