Jon Gettman is a long time contributor to HIGH TIMES. A former National Director of NORML, Jon has a Ph.D. in public policy and regional economic development and consults with attorneys, advocates, and non-profits on cannabis related research and public policy issues. On October 8, 2002, along with a coalition of organizations, he filed a new petition to have cannabis rescheduled under federal law. This column will track that petition's progress.

June 6, 2005
The Raich Decision by the Supreme Court

On June 6, 2005 the Supreme Court has refused to exclude medical marijuana patients from the jurisdiction of the federal Controlled Substances Act (CSA).

The 6-3 decision in the case of Gonzales et al v. Raich et al addressed the narrow issue of whether the constitutional authority of Congress to regulate interstate commerce applies to the non-commercial cultivation of marijuana for personal medical use.

The Court ruled that the federal prohibition against marijuana is constitutional even in cases where marijuana use was recommended by a physician, consistent with state law, and did not involve commercial transactions.

In his opinion for the Court Majority Justice Stevens observed that there were other remedies available to the medical cannabis issue, referring to both the rescheduling process and the possibility of legislative action by Congress.

While the decision did not overturn various state laws providing for the medical use of marijuana, Justice O’Connor, in a dissenting opinion, noted that the majority opinion of the Court has approved “an application of the federal Controlled Sub­stances Act that extinguishes that experiment.”

The Associated Press characterized the decision as “a stinging defeat for marijuana advocates who had successfully pushed 10 states to allow the drug’s use to treat various illnesses.” According to CNN legal analyst Jeffrey Toobin the significance of the decision was that “if medical marijuana advocates want to get their views successfully presented, they have to go to Congress; they can't go to the states, because it's really the federal government that's in charge here.”

Stevens conceded that the medical evidence presented in the case raised doubt whether marijuana’s prohibition was justified. “We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I.” However, the central question in the case was, instead, whether or not allowing individuals to grow cannabis for their own medical use would have any effect on interstate commerce. If so, that would justify federal jurisdiction even over private non-commercial activities.

The majority opinion notes that California law, for example, creates an economic incentive for physicians grant permission to use the drug. Unlike prescriptions that limit the dosage and duration of use medical cannabis authorization in California is open-ended. The provisions authorizing medical use are so broad that even scrupulous physicians “to conclude that some recreational uses would be therapeutic” and that there are always unscrupulous physicians that will over-prescribe a drug when it is “sufficiently profitable to do so.” The Court noted that under state law use could continue after medical conditions have been alleviated, and that the danger of diversion is great: “that excesses will satisfy some of the admittedly enormous demand for recrea­tional use seems obvious.” The majority opinion also notes that, given the thriving nature of illegal drug markets ”no small number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it is feasible to do so.”

For these and other reasons the extension of the federal prohibition on marijuana to non-commercial activity is justified as necessary for the success of the overall enforcement scheme. “One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily
popular substance.”

The three votes in favor creating a medical use exception to the CSA were O’Connor, Rehnquist, and Thomas.

Raich and Monsoon came within two votes on the Supreme Court of legalizing cultivation of marijuana for any personal use. Indeed, this is one of the critiques of the dissenting opinions by Stevens in the majority decision and why the above comment refers to personal use rather than medical use. “More fundamentally, if, as the principal dissent contends, the personal cultivation, possession, and use of marijuana for medicinal purposes is beyond the “ ‘outer limits’ of Congress’ Commerce Clause authority, it must also be true that such personal use of marijuana (or any other homegrown drug) for recreational purposes is also beyond those “ ‘outer limits,’ ” whether or not a State elects to authorize or even regulate such use.”

Indeed, it is now clear where Justice Thomas stands with regard to marijuana prohibition. In what will be a widely circulated quote, according to Justice Thomas “In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and con­sumption of marijuana.” His dissent is based on the principle that while “the CSA undoubtedly regulates a great deal of interstate commerce, but that is no license to regulate conduct that is neither interstate nor commercial, however minor or incidental.”

Justice Scalia voted with the majority and published a concurring opinion. Scalia offered a more nuanced view of the commerce clause than in the majority opinion by Stevens, recognizing wide powers of Congress to enact legislation that is necessary and proper for the regulation if interstate commerce, whether the subject of the laws has a substantial effect on interstate commerce or not.

This Supreme Court decision, ironically, is the result of appealing to a minority conservative view of the law that failed to swing the Court’s liberal-moderate majority. The Court majority has emphatically reminded reformers that medical cannabis is a matter of national policy that must be decided by existing administrative procedures or legislative action by Congress rather than state level reform and judicial activism.

The Supreme Court’s ruling in this case should be instructive to the medical cannabis movement in the United States in another sense, aside from directing attention to both the rescheduling process and congressional action. If citizens have a right to medical cannabis, then it is a right that belongs to every citizen rather than a right for those that live in some states but not a right for those that live in others. The movement, at the national level, needs to focus on the rights of all Americans to have legal access to medical cannabis rather than on the rights of citizens in states that have passed medical cannabis laws.

Finally, one of the most remarkable aspects of Gonzalez v. Raich is that the legal analysis of the marijuana laws in the United States in the decision is exclusively about the regulation of commerce. As noted above, the Court observed that marijuana is extraordinarily popular. The Court also notes that there is a large, valuable, and hard to control market in marijuana in the US that the federal government has clear constitutional authority to regulate. The Court has made it clear in several cases that prohibition is a rational regulatory tool for the federal government, citing prohibitions on commerce in bald and golden eagles, biological weapons, nuclear material, certain plastic explosives, and contraband cigarettes.

What is remarkable about this case is that both the majority and the dissenting opinions question the soundness of marijuana prohibition. Stevens and the majority suggest that the evidence they’ve seen, if credible, would sustain removal of marijuana from schedule I. Thomas argues that the government has no right to regulate the private use of marijuana. Neither side offered a ringing endorsement of marijuana prohibition, indeed it seems as if the Court wanted to make it clear that while they recognized prohibition has many flaws the only question before them was a narrow one, whether or not Congress could use their authority to regulate interstate commerce to prohibit personal marijuana cultivation for medical use.

The Court ruled that Congress has such authority, and by extension that state laws do not protect medical cannabis users and caregivers from arrest and prosecution by federal agents. However in making this ruling the Court exposed prohibition’s fatal weakness ­ despite all the rhetoric about fighting drug abuse and sending the right message, prohibition is just one of many regulatory options available to control the social costs of the marijuana market. From what the Supreme Court observes, while a constitutional form of regulation prohibition does not appear to be a very effective form of regulation. This opens up a whole new debate over not just medical cannabis laws, but the entire policy of marijuana prohibition. Would other forms of regulation be more effective? That indeed is a question for the public and the legislature, rather than for the courts.

Finally, the Supreme Court has not ruled on the application of a necessity defense to prosecution for the use and/or cultivation of cannabis for medical use. The necessity issue was argued by Raich before the Court, but because it was not part of the court decision that had been appealed to the Supreme Court it was not addressed by their ruling in the case. Consequently the issue of medical necessity as a defense for medical cannabis use remains unresolved and awaits further action by the federal Courts.