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State Law Survives High Court Ruling |
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Written by Chris Conrad
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Friday, 05 August 2005 |
Feds, state still conflict after Raich Decision
A divided US Supreme Court handed down its June 6 ruling on medical marijuana, and its effect is ... nothing.
The Supreme Court’s six-to-three Gonzalez v. Raich
opinion preserved the status quo by retaining both state medical
marijuana laws and the federal ban as separate jurisdictions, meaning
that patients and caregivers are not able to use their legal status
under state law as a defense in federal court.
Patients Angel Raich of Oakland and Diane Monson of
Butte County promised to defy the federal ban and continue their work
for medical rights.
 MR. Williams Goes to Washington ? TV talk show host Montel Williams joined advocates from around the nation in DC May 4 to visit the halls of Congress and lobby for passage of two federal medical marijuana bills. Photo: Mikki Norris
Oregon had earlier suspended its state-run patient registry for a few days, then quickly recommenced.
In an unusual twist, the High Court concluded its Raich opinion by
urging Congress to change the law, noting the “procedures for the
reclassification of Schedule I Drugs. Perhaps even more important than
these legal avenues is the democratic process, in which the voices of
voters allied with these respondents may one day be heard in the halls
of Congress.”
It held that even non-commercial, private medical use within a
state falls under the federal interstate commerce authority. Without
ruling on the constitutionality of the Controlled Substances Act (CSA),
the Court said there is a credible risk that medical marijuana could
end up being sold in the illicit market and thereby rationalized using
federal police powers.
The limited, technical ruling did not consider medical studies on
cannabis, or if patients can present a medical necessity or substantive
due process defense. It did give credence to the validity of Raich and
Monson’s medical benefit, adding, “The authority to grant permission
whenever the doctor determines that a patient is afflicted with ‘any
other illness for which marijuana provides relief,’ is broad enough to
allow even the most scrupulous doctor to conclude that some
recreational uses would be therapeutic.” However, it held that there
are other avenues of relief available without overturning the CSA.
Congress responded June 15 with a 264 to 161 vote against the
Hinchey-Rohrabacher amendment to cut funds for DEA raids on medical
marijuana. Raich and TV talk show host Montel Williams joined scores of
advocates on May 4 to lobby for its passage.
Within days of the vote, the DEA re-arrested California attorney
Dale Schafer and his wife, Dr. Marion “Molly” Frye, on prior charges of
helping patients obtain cannabis.
Several dispensaries and their suppliers have since been raided, as well.
Congressman Barney Frank (MA) subsequently introduced HR 2087, the
“States Rights to Medical Marijuana Act,” that would enable physicians
to prescribe cannabis and direct the DEA to honor medical marijuana in
states that adopt such laws. The bill is not expected to pass.
Some Republicans still believe that Bush will act on his 2000
campaign statement, “medical marijuana, that’s a matter of States’
Rights,” and order the DEA or Department of Justice to do reschedul
cannabis and change federal law. Given his personal and family history
of drug use, that may seem reasonable , but critics point to Bush’s
long history of false promises and hypocrisy as being unfavorable to
the chance he would make such a move.
What does all this mean for California patients and caregivers?
The State Constitution binds its agencies to uphold and defend
state law, even if in conflict with federal law. Lockyer wrote in a
April 6 brief on a “return of property” case, “both generally and in
the specific context of interpreting the Compassionate Use Act — it is
not the province of state courts to enforce federal laws.”
However, the reciprocal relationship between various jurisdictions
will continue to be a problem until Congress or the administration
acts. In the meantime, Sheriff Tony Craver of Mendocino County repeats
his famous mantra for cannabis providers of all ilk: “Think small or
think DEA.” |
Chris Conrad |
| About the author: |
| Staunch supporter of Oaksterdam News
Chris Conrad has studied cannabis (marijuana) since 1988. He has written two books on the topic and contributed to others. Familiar with numerous books and at least 100 scientific studies, such as federal Drug Enforcement Administration (DEA) and National Institute on Drug Abuse data. Reported on cannabis dispensaries for California legislators. Consults with government agencies. Testified at National Academy of Science, Institute of Medicine hearings. Regularly consults with physicians including some of the world’s foremost authorities on cannabis and patients as to their knowledge and experiences regarding cannabis.
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Last Updated ( Tuesday, 08 August 2006 )
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