Medical marijuana: read between the lines

June 15, 2005

Neil S. Siegel (OPED), News Observer (NC)

DURHAM -- It is critical for Americans to understand what the Supreme Court decided -- and what it did not decide -- in its medical marijuana ruling last week. The court held, 6-3, that the Constitution authorizes Congress to prohibit the local cultivation and use of marijuana in states allowing such activity. But the justices did not conclude that the federal prohibition on medical marijuana is sound ethically or scientifically.

To the contrary, the court suggested just the opposite.

Now Congress and the president should act to allow ill individuals to possess small amounts of marijuana for medicinal purposes.

Under settled Supreme Court precedent, Congress may regulate a commodity produced for non-commercial use within a state if the failure to regulate it might impede federal regulation of the interstate market in that commodity. Applying this bit of constitutional law to locally grown and used marijuana, the court decided that 'Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control' would affect the supply and demand nationally, because of the 'likelihood' that the high demand for marijuana in the interstate market would draw marijuana grown for home consumption into that market. The court reasoned that 'the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety.'

The decision means that people who use marijuana because their doctors recommend it to alleviate pain may be prosecuted for violating federal drug laws. Two such people are the plaintiffs in the Supreme Court case, Angel Raich and Diane Monson, who suffer from several serious medical conditions. After conventional treatment and pain management options failed, their doctors prescribed marijuana and later concluded that it is the only drug that affords effective treatment and symptom control. Both Raich and Monson rely heavily on medical marijuana to function.

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In light of these heartbreaking facts, the court was clearly uneasy about the prospect of approving application of the federal drug law to Raich's and Monson's situations -- 'the troubling facts of this case,' as the majority opinion put it -- even if Congress could rationally believe that a medical marijuana exception would undercut enforcement of the federal ban on recreational marijuana use to some extent. Justice Stevens wrote for the majority that '(t)he case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes.'

He stressed that the question before the court 'is not whether it is wise to enforce the statute in these circumstances.' Stevens even concluded the court's opinion by tendering other 'avenue(s) of relief' -- specifically, the statutory 'procedures for the reclassification' of marijuana, through which medicinal uses of the drug could become legal, and 'the democratic process, in which the voices of voters allied with (Raich and Monson) may one day be heard in the halls of Congress.'

The Supreme Court, therefore, voiced well-grounded concerns about the wisdom and compassion underlying Congress' refusal to allow medical marijuana. Yet the justices put their misgivings aside, recognized the distinction between law and politics, and executed their responsibilities admirably by deciding the case based on their considered judgment that the Constitution required deference to Congress. By engaging in judicial restraint, moreover, the court avoided jeopardizing many other federal statutes, ranging from drug laws to environmental protections to civil rights acts.

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Now it is time for Congress and the president to step up and earn the deference our Constitution confers.

Congress has the right to prohibit medical marijuana, and the president therefore has the right to order the Justice Department to pursue sick people who use marijuana for medicinal purposes. But that legal reality does not make either exercise of federal power the right thing to do. Congress should read between the lines of the Supreme Court's decision, register the good sense contained therein and seriously consider reclassifying marijuana to provide for some medical uses.

In the meantime, Congress should make an exception to the federal ban for medical marijuana use permitted under state law. And until Congress acts, the president should order the Justice Department not to bother the Angel Raiches and Diane Monsons of our world.

It is painfully perverse that the federal government would expend any of its scarce law enforcement resources on making life even more difficult for people who seek only to manage their enormous suffering. The Supreme Court's medical marijuana decision provides scant authority for the propriety of such government conduct.

(Neil S. Siegel, a former U.S. Supreme Court clerk, is an assistant professor of law and political science at Duke University.)

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