AANL2

ASK A NORML LAWYER - INSTALLMENT 2

Q:  Why is the Federal Government prosecuting medical marijuana patients and closing down dispensaries in states that have decriminalized and made provisions to regulate medical marijuana?  Isn’t that unconstitutional?

A:  Well, unfortunately, what is and what ain’t “constitutional” isn’t defined by what you or I think it is, or what we think it should be, but instead by what 5 out of 9 Supreme Court justices think at any given time that a case is presented to them.  That may sound harsh, but it’s the reality.

And in 2005, in a case called Gonzales v. Raich, the Supremes decided by a 6 to 3 margin that Angel Raich’s petition for injunctive relief attempting to prevent the Federal government’s enforcement of federal laws against her use of medical MJ should be denied.  Raich’s doctor had testified at previous hearings that she qualified through California’s Compassionate Use Act – also known as Prop 215 – as a medical marijuana patient since it was the only known substance that alleviated her otherwise excruciating pain.

Technically, this dates back to over seventy to eighty years of the Supreme Court wrangling over what subject matter the Feds can properly interfere with the States on through their Commerce Clause power.  First year constitutional law students confront this issue head on with the 1941 case of Wickard v. Fillburn, aka “the wheat case”.The FDR dominated Supreme Court decided that Roscoe Filburn’s personal decision to grow wheat on his own farm for his own use (i.e., think of it like your back yard) effected Interstate Commerce, and therefore he was subject to Federal restrictions on how much wheat he could grow.  (The administration was attempting national price controls, and wanted to limit how much every farmer could grow, even if, as in this case, it was grown entirely on his own land.)

The rationale (if it can be called that) goes something like this: Yes, while it’s true that ole Roscoe is growing his own wheat, on his own land, for his own consumption, and for the consumption of his own farm animals, that act still effects interstate commerce because if he hadn’t done that he would have had to buy feed on the open market, and anything bought on the open market has some slight effect on interstate commerce.

No, I’m not making that up.Broadly speaking the constitution is set up in several parts: things the Feds are allowed to do, things the Feds are not allowed to do, things the States are allowed to do, and things the States are not allowed to do; and, theoretically,  things – rights – retained by the people because they are inherent rights or because they are not expressly designated in one of the first groups that allow the Feds or States to do them.

So in a world where growing your own wheat for yourself – or for your own pigs and cows – is a part of interstate commerce… well, wait… wouldn’t that make everything interstate commerce?Why yes indeed it would.  And while there have been some recent decisions (e.g. U.S. v. Lopez, in the criminal but non-marijuana context) that have pulled back that all encompassing decision, the Supremes decided that California’s Prop 215 could indeed be properly – and constitutionally – superceded by the federal drug laws.

Finally, to repeat your question but answer it less legalistically, why are the Feds still prosecuting patients in Medical MJ states?  Well, because we are still electing one out of two kinds of politicians: (1) those that hypocritically tell us that even though they used drugs (see Clinton and Bush) that they intend to prosecute federally to the fullest extent and (2) those that tell us – untruthfully – that they do not intend to focus time, energy, money and resources prosecuting these cases, but then still direct their Attorneys General to do so (see Obama).  ~