Saturday, November 1, 2008

Doctor, Pass the Bong! States Continue to Consider Medical Pot Laws Despite Federal Ban

In 2005, the Supreme Court held that Congress had the authority to regulate the possession of "homegrown" marijuana, even when consumed for medicinal purposes. The Comprehensive Drug Abuse Prevention and Control Act of 1970 bans the possession, distribution and manufacture of several categories of "controlled substances," including marijuana. Congress has refused to exempt "medicinal marijuana" from coverage under the statute, despite a growing movement in states and in Congress to legalize the usage of pot to treat a variety of illnesses (wink).
The liberals on the Supreme Court, joined by Justice Scalia, disagreed with the view that homegrown and consumed marijuana fell outside of Congress' regulatory authority because it lacked a sufficient nexus to "commerce." The case, Gonzales v. Raich, required the Court to consider the extent of the "Commerce Power," contained in Article I, Section 8, Clause 3 of the constitution.

Although the Commerce Clause receives very little attention (certainly not as much focus as abortion, gay rights, affirmative action, and other hot-button issues) in popular constitutional law debates, it is a very important dimension of the regulatory state, and it receives tremendous amounts of analysis from legal and political experts. Historically, the Court has viewed the Commerce Power in liberal and conservative terms, depending upon its ideological composition and the economic and political conditions facing the country at the time. Accordingly, when businesses were expanding during the age of industrialization and in the subsequent consolidation of industry, the Court, stacked with "laissez faire" jurists, viewed the Commerce Power in conservative terms and routinely invalidated laws regulating the economy and labor. But during the Great Depression and after FDR engineered his infamous court-packing plan, the Court shifted dramatically to a more liberal view, and, for a period of almost 60 years, declined to find any law unconstitutional on commerce clause grounds. Things changed in 1995 during the Rehnquist Court. Beginning with the case U.S. v Lopez, the Court would again closely scrutinize federal laws enacted pursuant to the Commerce Clause. And since the return of the conservative treatment of the Commerce Clause, the Court has struck down several popularly favored laws, such as a ban on guns in schools (in Lopez) and a provision of the Violence Against Women's Act that gave victims of gender-motivated violence a federal right to sue their offenders.

When the medicinal marijuana case came to the Court, many constitutional law experts argued that under prevailing conservative doctrine, the Court would necessarily reject the federal government's effort to regulate homegrown and consumed marijuana, which has a most tenuous connection to commerce. Nevertheless, the Court went against the current of conservative caselaw and held that Congress indeed possesses the authority to prohibit homegrown pot.
The Court justified its ruling on the fact that the federal ban on marijuana is part of a much larger and extensive federal statute that prohibits the interstate and international trafficking of drugs -- which indisputably relate to "commerce." Also, the Court held (in what I consider a stretch even for me as a liberal) that the use of homegrown pot affects the broader market for marijuana because it impacts the price structure for the substance and because Congress would face difficulty distinguishing homegrown from commercially obtained pot. Responding to the former argument in his dissent, Justice Clarence Thomas probably displayed his most effective and humorous logic as a member of the Court when he asserted that the majority's view would permit Congress to regulate "quilting bees, clothes drives, and potluck suppers throughout the 50 States" because they impact the market for quilts, clothes, and dining outside of the home.

If one considers the political reasons for the ruling, however, the fears Thomas raises in his dissent might lose their force. The liberals, for example, likely sided with the federal government in order to resurrect the liberal aspects of the Court's Commerce Clause doctrine. The only explanation I can offer for Scalia's departure from his normal pattern of voting against Congress, especially in cases involving individual rights, and for tossing aside his own conservative views of the Commerce Power and federalism is the following: Justice simply hates pot! Seriously, he does a very poor job distinguishing this case from others in which he has agreed with the conservative view of the Commerce Power.

Despite the Court giving Congress the green light for punishing medicinal usage of pot, states continue to debate and pass such measures. In November, for example, voters in Michigan will consider enacting such a provision. Last year, Connecticut passed similar legislation, but Governor Jodi Rell vetoed it.

Although the Court has concluded the Congress can prohibit the use of homegrown marijuana, it has not addressed the question of whether banning its usage for medical purposes infringes an individual rights to control one's health care decisions. The Raich case presented such an issue, but the Court declined to reach it because the lower court focused on the Commerce Clause question exclusively. Later, on remand, the liberal Ninth Circuit rejected such an argument.
Also, while many states prohibit marijuana under their own laws, states cannot enforce federal drug laws and have no obligation to design their own laws to conform with the federal prohibition (a California appeals court recently accepted this view that seems fairly uncomplicated under current doctrine). Accordingly, persons in states that permit the medical use marijuana would only face prosecution if federal authorities decided to pursue a case against them (which rarely happens with small users, rather than large distributors). These facts probably explain why voters continue to demand the enactment of such laws, despite a federal prohibition.

4 comments:

FLRN said...

Professor I'm glad you winked! The medicinal properties of pot are grossly exaggerated and poorly articulated by staunch defenders of the practice - Why? Because hallucinogenic have no "medicinal value" except perhaps as esoteric aroma therapy. Again state law makers (and those that didn't inhale) prove my point once more with absurd actions like these that they have limited resource capabilities to make good decisions regarding the administration of health care standards. (Shudder) The solution to our national health care crisis is going to have to come from within the industry where health care professionals are advocating a smoke free environment(and less smoke and mirrors)...but that I am sure is another blog...

Darren Lenard Hutchinson said...

Yes! My post was primarily on the interesting fact of states pushing these laws, despite the federal ban (which probably means the feds rarely enforce drug laws against medical users). But I agree that these laws are really part of a larger movement to decriminalize marijuana. Regardless of the merits of that movement (the government could probably use its money in more meaningful ways), I think it's hard to deny what is really going on. There are so many ways to treat pain and lack of appetite than to prescribe marijuana.

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