Federalism and Medical Marijuana: A Match Made in Confusion
by Mark Wilson, Editor
January 17, 2009
Federalism is a funny thing. At its best, federalism provides for states’ individual personalities and needs. At its worst, federalism means “no one really knows who’s in charge.” Federalism led to several “nullification” crises in the 1820s when some Southern states, backed by southerner John C. Calhoun (vice president at the time), believed they had the power to “nullify” acts of Congress. Of course, they didn’t, and the states stewed for forty more years until they had a little fight about it.
But, Federalism is here to stay, mostly because it prevents the concentration of all powers in the hands of the federal government. The phrase “United States of America” should be taken more literally than it is: the Founding Fathers thought that this country would, literally, be a bunch of disparate states united by the federal government. In Article I of the Constitution, they laid out Congress’ specific powers: what it can, and cannot, do. Congress’ powers are limited only to those ennumerated in Article I. In 1791, the amendments within the Bill of Rights were ratified, further limiting the federal government’s power. Of note to us now is the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This is important to remember: if there’s a power someone out there can think of, and that power is not specifically granted to Congress, then the state governments or the people themselves have that power. Take liquor control: there’s no federal law governing alcoholic beverages because regulating liquor is not one of Congress’ specifically-granted powers; therefore, that power defaults to the states.
Sure, great history lesson, but this is all so boring. Does any of this have a point?
Let’s begin in 1970, with the passage of the Controlled Substances Act. This marked the beginning of the War on Drugs. The Controlled Substances Act clearly defined what drugs were always illegal, sometimes illegal, and legal. It divides drugs into five categories, or schedules. Schedule I drugs have a high potential for abuse and no accepted medical value. Schedule II drugs have a high potential for abuse and physical or psychological dependence, but have accepted medical value. And so on down to Schedule V, which are drugs with a low potential for abuse and limited psychological or physical dependence. Marijuana is classified as a Schedule I narcotic, meaning it has a high propensity for abuse and no accepted medical value, as far as the U.S. Congress is concerned.
But the U.S. Congress isn’t always correct. In 1996, California voters passed Proposition 215, which permitted physicians to legally prescribe marijuana as a treatment and further permitted a patient or a patient’s caregiver to grow marijuana plants for the patient’s medical use. Proposition 215 has been the basis for many a federalist showdown over who has authority in the realm of legal drugs. The U.S. Justice Department has refused to recognize the legitimacy of Prop. 215, and as such, continues to raid medical marijuana dispensaries in California because, hey, federal law always trumps state law (this is the “supremacy clause” of the U.S. Constitution).
The U.S. Supreme Court, while not ruling specifically on the issue of California’s statute, has twice upheld the supremacy of Congress when it comes to drug enforcement. In 2005’s Gonzales v. Raich, the Supreme Court used some curious reasoning and the commerce clause to find that Congress can regulate marijuana cultivation, even if the marijuana never crosses state lines (disclosure: I wrote the above-linked article).
As much as proponents of legal marijuana may not like to hear it, the law is very cut and dry: when federal law and state law are in conflict, federal law always wins. In this case, California law says that marijuana has medical value and should be prescribed legally. Federal law completely disagrees. Federal law wins. This is most likely what the U.S. Supreme Court will find if they take up the case of San Diego County.
San Diego County and San Bernadino County, two counties in southern California, have been trying for the past three years to overturn Prop. 215. They argue that they should not be required to do something under state law which is illegal under federal law. California’s Fourth Circuit Court disagreed, upholding the legality of California’s statute. The California Supreme Court declined to hear the case on appeal. Now, San Diego and San Bernadino County are taking their fight to the top and asking the U.S. Supreme Court to rule against California.
Which is probably what they will do. As for the Controlled Substances Act itself, marijuana has been shown to have some medical value, but these studies are routinely overlooked by anti-drug advocates who, for some reason, believe that marijuana is the most dangerous drug ever invented. These people are also in charge of our nation’s drug policy. Not only is marijuana not that dangerous (the risk of overdose is zero, for example), but there are many other drugs that are far more dangerous (in the link above to a Rolling Stone article, the author points out that the government ignored the real danger of methamphetamine for years, preferring instead to fight the make-believe scourge of marijuana). The War on Drugs has escalated even into the free speech zone, causing people to be prosecuted under the Controlled Substances Act merely for advocating the use of marijuana or for selling devices that could be used to smoke marijuana.
California, though, is not alone. Other states and municipalities have attempted to circumvent the federal ban in other ways. The most popular method is to make arrest and prosecution for marijuana possession a city police department’s lowest enforcement priority — below traffic tickets, below jaywalking. San Francisco currently has such a policy. The city of Denver passed a referendum in 2005 permitting marijuana possession, even though state law still forbids it. When state, federal, and municipal laws conflict, there’s an enforcement problem. It gets even worse when the people doing some of the enforcing fundamentally disagree with the law. And what happens when the law forbids something that many people do, regardless? Should all those people go to jail, or should the law be re-examined? In Ontario, Canada, a 2008 study showed that 14% of adults used marijuana in 2005. That’s a lot of people; are they all criminals beyond the definition of “criminal” as “one who breaks the law”?
Even if potential Surgeon General Dr. Sanjay Gupta doesn’t think marijuana should be legalized (and for good reasons, too: Dr. Gupta acknowledges that smoking anything is bad for your lungs, and some users report anxiety or depression), he recognizes that some studies have shown marijuana to be an effective treatment for nausea or even Alzheimer’s disease. Marijuana is not illegal because it is bad (cigarettes and alcohol are far worse for your health); it is illegal because a minority of people (the same people who brought you alcohol prohibition) seventy years ago convinced Congress that it was immoral and evil, and that taboo has endured.
Federal marijuana policy is very childish and must be changed, but the Supreme Court is not the appropriate place for relief. If the Court takes San Diego’s case, it will undoubtedly mean the end of medical marijuana legislation for the states. No, appropriate relief must come from Congress, which must remove marijuana from its list of Schedule I narcotics (which is also populated by heroin, mescaline, peyote, and LSD; even cocaine has accepted medical uses!). Rep. Barney Frank took a tremendous step last year when he introduced legislation to permit the possession of small amounts of marijuana by adults (disclosure: I wrote the above-linked article). In the meantime, the people who actually do rely on medical marijuana to get through their day (which, it turns out, are AIDS patients who find marijuana much more effective than the anti-nausea medication they must take with their AIDS drug cocktails) will be ill-served by their government.