The US Supreme Court Monday ruled Monday that federal officials may arrest and prosecute medical marijuana users and providers even in states where it is legal. The decision in Gonzales v. Raich returns California and other Western states to the situation that held before plaintiffs Angel Raich and Diane Monson won a 2003 injunction at the 9th US Circuit Court of Appeals in San Francisco barring federal officials from raiding or prosecuting medical marijuana patients and providers in California and other medical marijuana states within the jurisdiction of the appeals court. In Monday's ruling, the court overturned the 9th Circuit, holding the Constitution's interstate commerce clause could be employed to allow the federal government to claim jurisdiction over medical marijuana through the Controlled Substances Act.
The 6-3 decision saw an unusual split in the court, with conservative Justices Antonin Scalia and Anthony Kennedy, who in previous cases involving gun control and violence against women had come down against a sweeping interpretation of the commerce clause and in favor of states' rights, this time coming down on the other side of the issue. Scalia and Kennedy joined "liberal bloc" Justices Ruth Bader Ginsburg, Stephen Breyer, David Souter, and John Paul Stevens in the majority, while Chief Justice William Rehnquist was joined in the dissent by Justices Sandra Day O'Connor and Clarence Thomas.
It is worth pointing out that although the Supreme Court claimed federal jurisdiction under the interstate commerce clause, the marijuana in question was homegrown, not sold or purchased, and never left the state of California. In other words, as the English language is commonly understood, it was neither interstate nor commerce.
But citing a 1942 Supreme Court case where the court held that a farmer who grew wheat for his family's use affected interstate wheat markets, the court Monday held patients growing their own marijuana affected the interstate marijuana market. When thus defined as affecting interstate commerce, the noncommercial, intrastate use of medical marijuana can be constitutionally regulated by federal law, in this case the Controlled Substances Act, the majority held.
In both the wheat case and Monday's case, "the regulation is squarely within Congress's commerce power because production of the commodity meant for consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity," Justice Stevens wrote for the majority.
And with Congress thus having the power to regulate in-state, non-commercial medical marijuana, it is free to use the drug laws to do so. "The Controlled Substances Act is a valid exercise of federal power, even as applied to the troubling facts of this case," Stevens wrote. Even though the decision was made difficult by Raich and Monson's "strong arguments they will suffer irreparable harm" if denied medical marijuana, "well-settled law controls our answer."
"To be sure," he added in a footnote, "the wheat market is a lawful market that Congress sought to protect and stabilize, whereas the marijuana market is an unlawful market that Congress sought to eradicate. The difference, however, is of no constitutional import."
While Stevens and the majority ruled against Raich and Monson, they expressed a measure of sympathy for medical marijuana. There were other legal options for patients, Stevens wrote, "but perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress."
In her dissent, joined in most points by Chief Justice Rehnquist and Justice Thomas, Justice O'Connor wrote that the federal government was attempting to usurp powers that should be reserved for the states. "The states' core police powers have always included authority to define criminal law and to protect the health, safety and welfare of their citizens," Justice O'Connor wrote. The court should have deferred to California's judgment in the matter, she added, noting that the state "has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering."
Writing a separate dissent, Justice Thomas warned that the court was stretching the reach of the commerce clause too far. Noting that Raich and Monson's medical marijuana never reached the market and had no "demonstrable" effect on it, he wrote: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything," including "quilting bees, clothes drives and potluck suppers."
Reaction to the ruling from interested parties was quick and largely predictable. "Today's decision marks the end of medical marijuana as a political issue," said Office of National Drug Control policy head John Walters, whistling past the graveyard. The ruling was a defeat for "the pro-drug politics that are being promoted in America under the guise of medicine," he said.
Also happy was congressional arch-drug warrior Indiana Republican Rep. Mark Souder, who said the Supreme Court's ruling was a "common sense" decision. "Our federal drug laws are designed to ensure that we have uniform, scientifically-based national health and safety standards for drugs and medicines. We cannot allow the state initiative process to undermine those standards on the basis of political -- not scientific -- arguments," said Souder. "Denying the federal government the power to set and enforce uniform standards would simply open up an alternative route for illegal drug trafficking and abuse."
Some foes of medical marijuana couldn't settle for the victory they won, but also attempted to distort the court's decision. "This is an important victory for sound drug policy, but more importantly, it is a victory for the future of our children and the hope for a drug-free America," said Calvina Fay, executive director of the Drug Free America Foundation. But then, the foundation's press release went on to boldly, and falsely, claim, the ruling "determined that states cannot legalize marijuana for so-called medical purposes."
While the Marijuana Policy Project, which helped bankroll the case, pronounced itself "disappointed" with the decision, the organization also took pains to clarify what Fay and the Drug Free America Foundation were falsely disseminating. "While we're disappointed, the validity of state medical marijuana laws was never at issue in this case," said MPP executive director Rob Kampia. "The medical marijuana laws of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Washington, and Vermont will continue to protect patients from arrest by state and local authorities. Because the DEA and other federal agents make only one percent of our nation's 750,000 marijuana arrests every year, patients in states with medical marijuana laws retain a high level of protection. Congress should act today to give those patients complete protection from arrest."
Congress is expected to vote later this month on a bipartisan amendment sponsored by Reps. Dana Rohrabacher (R-CA) and Maurice Hinchey (D-NY) that would prohibit the federal government from spending taxpayers' dollars to prosecute patients who comply with their state's medical marijuana laws. Also pending in Congress is House Bill HR 2087, "the States' Rights to Medical Marijuana Act," sponsored by Reps. Barney Frank (D-MA), Ron Paul (R-TX), Sam Farr (D-CA), Rohrabacher, and Hinchey, along with 31 cosponsors, which would reclassify marijuana under federal law to properly recognize its medical utility and enable physicians to legally prescribe it under controlled circumstances, and the "Truth in Trials Act," S. 2989, sponsored by Sens. Richard Durbin (D-IL), Patrick Leahy (D-VT), and Jim Jeffords (I-VT), which would allow federal marijuana defendants to win acquittal if they could prove they were acting in accord with state medical marijuana laws. Those bills are not, however, expected to gain much traction in the Republican-controlled Congress.
The National Organization for the Reform of Marijuana Laws (NORML) shared both MPP's disappointment and its analysis of the decision. "The bottom line is that state and local laws protecting medicinal cannabis patients and their physicians remain in place and are unaffected by this ruling," NORML executive director Allen St. Pierre said. Congress must act, he added. "It's time for the federal government to butt out of doctors' decisions regarding which medicine is the most safe and effective for their patients."
California Attorney General Bill Lockyer, the top law enforcement official in the most populous medical marijuana state, was quick to reassure patients that little had changed. "Today's ruling does not overturn California law permitting the use of medical marijuana, but it does uphold a federal regulatory scheme that contradicts the will of California voters and limits the right of states to provide appropriate medical care for its citizens," said Lockyer Monday. "Although I am disappointed in the outcome of today's decision, legitimate medical marijuana patients in California must know that state and federal laws are no different today than they were yesterday."
His point was echoed by the American Civil Liberties Union. "The power of state governments to enact and enforce state medical marijuana laws is not affected by the Supreme Court's ruling," said Allen Hopper, a staff attorney with the ACLU's Drug Law Reform Project. "State laws allowing the use of medical marijuana still offer patients significant protection."
But not from the feds. As California Attorney General Lockyer noted disapprovingly, the continuing conflict between state and federal law "means that seriously ill Californians will continue to run the risk of arrest and prosecution under federal law when they grow or use marijuana as medicine."