Reich, Marijuana, and Federalism
Most of the discussion of Monday’s Supreme Court decision in Gonzales v. Raich, which ruled that the federal Controlled Substances Act trumped state medical marijuana statutes, has naturally focused on the implications for federalism. For example, Jonathan Adler pens an elegy to states’ rights in “Federalism, Up in Smoke?” Even the Washington Post editorial board, by contrast, breathed a sigh of relief, contending that the opposite ruling “would have been a disaster in areas ranging from civil rights enforcement to environmental protection.”
The problem with such analyses, though, is that, with exceptions that can be counted on one hand without incorporation of the thumb, Raich is consistent with a whole string of jurisprudence dating to 1937. A different outcome would have been surprising indeed.
While the above WaPo piece was entitled, “Not About Pot,” CSM’s Brad Knickerbocker examines the implications of the ruling on the medical marijuana issue itself, contending that the ruling “may have raised more questions than it answered.”
For example, will the federal Controlled Substances Act now be enforced more rigorously? Advocates on both sides of the issue say they do not expect to see US Drug Enforcement Administration (DEA) agents breaking down the doors and ripping up the plants of medical-marijuana users, especially if state and local cops – not obliged to help federal agencies prosecute people following state law – don’t take part. Just a tiny fraction of the 750,000 pot busts made each year in the US are by DEA agents.
Will the ruling curb the number of states that allow medical marijuana? (The 10 that do are California, Alaska, Colorado, Hawaii, Washington, Montana, Nevada, Oregon, Vermont, and Maine.) Polls show most Americans support medicinal use, including those opposed to general legalization of the drug.
The Constitutional question in Reich was over the Supremacy Clause. Congress could amend the CSA and return the power to decide the medical marijuana issue back to the states.
This week’s court decision puts added pressure on Congress to deal with the issue. In writing the court’s majority opinion, Associate Justice John Paul Stevens “stressed the need for medical marijuana patients to use the democratic process, putting the ball in Congress’s court,” says Rob Kampia, executive director of the Marijuana Policy Project in Washington, D.C. “This is especially important now because next week, the US House of Representatives will vote on an amendment that would prevent the federal government from spending funds to interfere with state medical-marijuana laws,” says Mr. Kampia, whose organization provided major funding for the case brought by two California women.
Another question raised by this week’s ruling: What lies ahead for Oregon’s unique physician-assisted suicide law? The US Justice Department says that law also violates the Controlled Substances Act, and the Supreme Court has agreed to take up the case this fall.
It’s unlikely that we’ll return to the pre-1937 “layer cake” view of federalism; the “marble cake” is with us to stay. Over time, though, I suspect we’ll move past a 1930’s view of marijuana (“Women Cry For It – Men Die For It!”) at least as applied to medicinal relief.
I think legalization efforts should begin to focus on changing federal law, and legalizing for recreational use. The medical argument is, I think, easier to refute than the argument that prohibition creates more harm than good.