Pubdate: Wed, 13 Jul 2005
Source: Nation, The (US)
Copyright: 2005 The Nation Company
Contact:  http://www.thenation.com/
Details: http://www.mapinc.org/media/285
Author: Herman Schwartz
Cited: Gonzales v. Raich ( www.angeljustice.org/ )
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)

CANNABIS INTERRUPTED

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.

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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