U.S. Must Turn to Congress After Ruling

June 07, 2005

EDITORIAL, The Monitor

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. 

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