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Obama Administration Discourages Prosecution in "Medical Marijuana" Cases

by Professor Will Huhn on October 19, 2009

in Constitutional Law,Wilson Huhn

     The AP is reporting that the Justice Department is sending guidelines to federal prosecutors today advising them not to prosecute the sale of marijuana where such sales are in compliance with state laws.  This news has interesting implications under the Constitution.

    Four years ago the Supreme Court decided Gonzales v. Raich, a hard-fought case over the principle of federalism and the power of Congress under the Commerce Clause.  The issue in that case was whether Congress had the power under the Commerce Clause to enforce the federal Controlled Substances Act against growers and sellers of marijuana in situations where state law made such use lawful – where the states had enacted laws allowing the medicinal use of marijuana.  In a split decision the Supreme Court ruled that the federal law was constitutional and that the state "compassionate use" laws were therefore unconstitutional because they had been preempted by Congress.

     Justice Sandra Day O'Connor dissented in Gonzales on the ground that the states should have the power to enact and enforce laws on this matter.  She quoted Justice Louis Brandeis from the case of New State Ice v. Liebmann, in which he said:

     A single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

     She concluded her dissent in Gonzales with this argument: 

     Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.

     Today fourteen states have laws allowing marijuana to be used for medical reasons – and, according to the AP, today the Justice Department sent a message to the office of every U.S. Attorney suggesting that, as a matter of prosecutorial discretion and for the purpose of conserving resources for more important cases, that federal prosecutors should not pursue cases in which the production and use of marijuana is in compliance with state law.

     I wonder if former Justice O'Connor feels vindicated?

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Dave October 19, 2009 at 1:55 pm

I have to admit, you sucked me in with the teaser portion of your blog. I was sure that you were going to chide the President for not enforcing laws that he did not agree with. A few posts ago, you stated … (Sorry about my inability to make a box)

"When a President – any President, for any reason – fails to enforce the law or disobeys the law, it is a violation of the bedrock principle of democracy, because the law is the voice of the people, and the people have the right to rule themselves."

I guess that the Rule of Law is important when you can hammer the other side with it. We all need to be more consistent and hold both sides to the same standard. I am guilty of the same bias. I excused the overspending of the Republican controlled congress, why shouldn't they be able to buy some votes of their own? Liberals were never concerned about fiscal responsibility until the Republicans finally got their hands on Congress and then were also guilty of overspending. The law is supposed to be blind, but politics has infiltrated everything. We need to get together and stop both sides from trampling our rights.

Personally, I get more and more Libertarian every day. I am about an eyelash from concluding that if people want to use drugs, then we should let them.

My problem with medical marijuana is that it is a scam. There is no legitimate use for marijuana. There are other pain killers. It does not cure anything. What does marijuana do that nothing else does? People talk their doctor into parking passes and prescription window tinting. It is an abuse of the system. With the possible exception of appetite enhancer with regard to White Castle & Twinkies.

It sounds like you agree with limiting the power of the commerce clause.

I am however reminded of your reasoning for the EPA. Holding off the race to the bottom. Widespread use of marijuana would definitely leave some scars in it's wake.

Laura LaBelle October 19, 2009 at 3:34 pm

If there is a legitmate use for medicinal marijuana use than why has hasn't it been approved by the FDA and why isn't it being dispensed by licensed pharmacists? Are there people in states that don't allow the sale of medicinal marijuana suffering for no reason?

The people growing it and selling it out of there fly by night shops are doing so not out of concern for medical issues of the people buying it but for a profit and a hugh profit. If California is in such financial straits why doesn't it support having medicinal marijuana legalized and taxed?

Chad October 22, 2009 at 5:35 pm

I'm surprised that Laura and Dave both claim that "there is no legitimate use for marijuana." This stance ignores the historical use of marijuana for medical purposes and recent scientific studies showing there are tangible and measurable medical benefits from using marijuana. From a recent medical conference (link below) and among other findings, "Cannabinoids may augment the analgesic effects of opioids, allowing longer treatment at lower doses with fewer side effects.”

Here are the study abstracts from The International Association for Cannabis as Medicine:

Also, in an upcoming British study, "researchers added to the body of evidence indicating that marijuana can aid the treatment of multiple sclerosis. Two-hundred and seventy-nine patients received either a standardized cannabis extract, given orally, or a placebo. Patients receiving the extract were twice as likely to experience relief of muscle stiffness, and also reported relief of body pain, spasms, and sleep problems."

I'd also suggest reading the recent (Sept. 11, 2009) Forbes magazine cover-story on the medical marijuana legalization in California.

In regards to the claim that the FDA doesn't find any medical use for marijuana, that simply isn't true. From the Forbes article, "In 1986 the FDA approved a synthetic version of what has long been recognized to be the main psychoactive ingredient of marijuana — delta-9-tetrahydrocannabinol, or THC. After rigorous testing, the FDA found THC to be safe and effective for the treatment of nausea, vomiting, and wasting diseases. This lawful, Schedule II drug, trade-named Marinol, is taken orally, by capsule." So in one statement the FDA claims marijuana possesses no medical benefits, but later on they approve a drug containing the active ingredient of marijuana because it has tangible medical benefits. Additionally, anyone familiar with the legislative history/debate of criminalizing marijuana in 1937 will recall that Congress outlawed marijuana despite the ojection and disagreement from the American Medical Association.

On the historical use of marijuana, marijuana has been used for medical uses a longer period of time than it has been criminalized. Criminalization of marijuana is a recent trend. From the Forbes article, "Marijuana, whose botanical name is cannabis, has been used medicinally — and as an intoxicant, of course — for thousands of years in Eastern cultures. It is believed to have been introduced to Western medicine in the early 19th century by a British doctor, W.B. O'Shaughnessy, who learned about it while stationed in India (and for whom the medical cannabis newsletter is named)."

In conclusion, marijuana (while abused and not always taken for medical benefit) does in fact posess real medical benefits that makes the lives of countless sick people better and more comfortable. Legalizing marijuana for medical purposes is a form of "compassionate conservatism" that i can live with. Claiming that it should remain off-limits to the sick when it can cure their ailments and do so more safely than most prescription drugs is just cruel.

It's a shame that uninformed opinions and outdated perceptions of a drug continues to prevent the sick from comfort and care.

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