cannabisnews.com: Should Federal Policy Trump State Law on MJ Use?





Should Federal Policy Trump State Law on MJ Use?
Posted by CN Staff on December 05, 2004 at 07:49:57 PT
By Gerard S. Walen
Source: Herald-Tribune 
Rows and rows of prescription and non-prescription medicines fill the shelves of thousands of pharmacies across the nation. But the one drug that helped Angel Raich treat her debilitating illnesses didn't sit on those shelves; it grew in someone's back yard.Now the U.S. Supreme Court is debating whether federal drug agents have the right to arrest Raich or the other users of medical marijuana when the state in which they live -- in this case, California -- allows them to legally possess the psychotropic plant that the U.S. government considers not to have medicinal value.
Raich suffers from a variety of ailments, including a brain tumor, scoliosis and chronic nausea. The 39-year-old Oakland, Calif., resident said she tried nearly three dozen prescribed medications to alleviate her pain, but the drugs either were ineffective or caused such severe reactions that her condition worsened.In 1996, California voters passed the Compassionate Use Act, making it legal for severely ill residents of the state to use marijuana after a doctor deems its use medically necessary.A year after the law passed and after discussing it with her doctor, Raich decided to give marijuana a try. It worked, she said. Without it, she said, her brain tumor would likely kill her.But the federal government has taken a hard-line view against any legal use of marijuana. U.S. drug laws classify it as a Schedule I narcotic, which means there are no exceptions for medical use.Two years ago, federal Drug Enforcement Administration agents descended on the home of Diane Monson of Oroville, Calif. Monson had six marijuana plants growing in her yard; plants, she said, that she legally cultivated to use as a treatment for back pain.Local law-enforcement officers at the scene said she had a right to grow the plants because she had followed procedures under California law. The DEA agents, insisting that she was violating federal laws against marijuana possession, uprooted the plants and destroyed them.The incident led to Monson filing a federal lawsuit filed against former Attorney General John Ashcroft and Asa Hutchinson, former head of the DEA. Raich and two unnamed men who supplied the marijuana to Raich at no charge joined her in the suit.The lawsuit doesn't directly address the legitimacy of the medical marijuana law, but is directed at whether the federal government is violating the commerce clause of the U.S. Constitution by arresting people who grow and use the drug exclusively within a state that allows it.The constitutional provision says that Congress can "regulate commerce among the several states." It has been used to justify federal laws such as those that set minimum wages, prohibit discrimination and protect the environment.If the marijuana is not paid for or is not transported across state lines, the marijuana users said, then state law takes precedence.The suit ended up last year in the U.S. Court of Appeals for the 9th Circuit, based in San Francisco. Those justices, in a split decision, ruled that federal agents had no constitutional right to arrest or raid the homes of medical marijuana users.Ashcroft appealed that decision. On Nov. 27, the Supreme Court heard from both sides.The government's lawyer, acting Solicitor Gen. Paul D. Clement, argued that:Marijuana grown ostensibly for personal medical use could easily be diverted into the illegal drug market and sold across state lines.Smoked marijuana has no proven medical benefit. It contains more than 400 chemical compounds of which only one -- THC -- has been shown to be beneficial, and THC is legally available by prescription in a pill form.Allowing hundreds of thousands of Californians to legally smoke marijuana could collapse the federal ban on the narcotic.Boston University law professor Randy E. Barnett, the lawyer for Raich and Monson, countered that:The use by the two women is "noneconomic activity and wholly intrastate," so it is beyond the reach of federal authority.Though marijuana may have some negative side effects, very ill people are willing to take the chance if it's the only thing that improves their condition.Otherwise law-abiding medical marijuana users are unlikely to buy the drug on the streets if they are able to grow it themselves. Illegal purchases would subject them to prosecution under both California and federal law.The Supreme Court has visited the medical marijuana issue twice before. In 2001, it ruled unanimously that California's so-called "cannabis clubs," which supply marijuana free to people who use it medicinally, can be prosecuted under federal drug laws.In 2003, though, the justices refused to hear an appeal of a 9th Circuit decision that doctors can discuss marijuana as a treatment option for their patients, thereby leaving the ruling on the books.In this latest case, the justices seemed skeptical of the marijuana users' case.Justice Antonin Scalia noted that Congress has applied its power under the commerce provision in similar circumstances. As examples, he cited laws against possessing ivory or eagle feathers, saying that Congress "can't tell whether it came through interstate commerce or not, and to try to prove that is just beyond our ability; and, therefore, it is unlawful to possess it, period."Justice Stephen Breyer questioned why the marijuana users did not first pressure the government to reclassify the drug before taking their case to court.The court's decision is expected to affect not only California's medical marijuana law, but also similar statutes since passed in 11 other states.The case is Ashcroft v. Raich, 03-1454. The justices are expected to issue a ruling by July.Complete Title: Should Federal Policy Trump State Law on Marijuana Use?Source: Sarasota Herald-Tribune (FL)Author: Gerard S. WalenPublished: December 5, 2004Copyright: 2004 Sarasota Herald-TribuneContact: editor.letters herald-trib.comWebsite: http://www.heraldtribune.com/Related Articles & Web Site:Angel Raich v. Ashcroft Newshttp://freedomtoexhale.com/raich.htmLet States Decide Medicinal Pot Usehttp://cannabisnews.com/news/thread19977.shtmlMedical Pot or Not? High Court To Decide http://cannabisnews.com/news/thread19973.shtmlSanity's AWOL in War on Drugshttp://cannabisnews.com/news/thread19972.shtml
Home Comment Email Register Recent Comments Help




Post Comment