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Cannabis Interrupted | The Nation

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Cannabis Interrupted

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The Supreme Court's medical marijuana decision this past June was a minor defeat for the so-called states' rights cause but a major setback for compassion and common sense. It marked one of the few defeats suffered by retiring Justice Sandra Day O'Connor in her long campaign against federal regulation of the national economy and for the enhancement of individual rights. This time, she should have won. Although the decision temporarily halted the conservative assault, it allowed federal authorities to deny a locally grown and marketed drug with proven therapeutic value to people who desperately need it.

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Herman Schwartz
Herman Schwartz, a professor of law at the American University, is the author of Right Wing Justice: The Conservative...

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In Gonzales v. Raich, the Court told California and ten other states that if they allowed their residents to use marijuana to relieve their illnesses, those people would be violating the federal Controlled Substances Act (CSA), even if the drug were taken solely for serious medical conditions under a doctor's supervision, state law allowed it, and the growth and usage were entirely within the same state. A unique combination of the four liberal justices plus the ultraconservative Antonin Scalia and the occasional swing vote Anthony Kennedy decided that the commerce clause was broad enough to reach these purely local transactions; Justice O'Connor, Chief Justice William Rehnquist and Justice Clarence Thomas dissented.

Plaintiffs Angel Raich and Diane Monson did not challenge the CSA itself but only the way it was being applied to people in their circumstances, what the lower court described as a "separate and distinct class" of users and noncommercial activities that were never involved directly or indirectly in interstate trade. The amount they used, the plaintiffs argued, was too small and too localized to "substantially affect interstate commerce," the standard for application of the commerce clause.

Sensing a rare victory in a commerce clause case, Justice John Paul Stevens issued an opinion that authorized the federal government to prohibit use of even the tiniest amounts of marijuana if Congress had a "rational basis" for thinking that federal drug laws would be undermined if exceptions were made. That could happen if the medically authorized marijuana were diverted to the illicit interstate market, although, as Stevens admitted, there was no evidence of any such diversion in the Raich case. General Accounting Office studies show that registered medical marijuana users are too few to have any substantial effect on the interstate market. Crafting a medical exception would not have been difficult, for as Stevens recognized, the medical users' challenge to the CSA was "actually quite limited." In fact, the therapeutic exemption actually reduced demand for illegal marijuana, which is the primary federal concern, because it kept desperate AIDS sufferers, cancer patients and others from turning to criminal drug dealers.

There have indeed been abuses. Two weeks after the decision, it was reported that drug dealers and crooked doctors had used three medical marijuana dispensaries as a front to peddle massive amounts of marijuana and other illegal drugs. But as Kevin Ryan, the US Attorney for the Northern District of California, said, this case was not "about ill people who may be using marijuana [but]...about a criminal enterprise" involving a multimillion-dollar international conspiracy. Many medical dispensaries operate properly, and both California and federal law are available to deal with the truly criminal.

The Supreme Court decision may actually encourage abuses. Those who need marijuana to ease their suffering will still manage to get it from illegal sources, and federal officials have indicated they are not likely to prosecute individual users. But California will no longer be able to justify continuing its current efforts to tighten dispensary regulation and to restrict access to the truly needy, for how can a state justify regulating and implicitly approving what the Supreme Court has found illegal? The decision will discourage more states from permitting medical use of the drug, no matter how carefully controlled.

This small victory for federal authority will do little to stem the right-wing campaign to shrink federal power and undermine the welfare and regulatory reforms initiated by the New Deal. Instead, the vital state experimentation on a common problem, which the federal system is supposed to encourage, will be choked off. More people will be forced into the illegal market, and victims of cancer, AIDS and other serious illnesses will be made even more miserable.

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