Supreme Court and Medical Marijuana

Politically Correct, Wrong in Every Other Way

By William S. Eidelman, M.D.

www.DrEidelman.com

The Supreme Court Fails Its Constitutional Obligation

            The Supreme Court’s recent marijuana ruling managed to be politically correct while wrong in every other way. 

It was wrong in not protecting fundamental individual rights that are guaranteed by the Bill of Rights. 

It was wrong in allowing laws and regulations to stand, laws that even they (the Court) understand contradict reality.

It was wrong in not recognizing that DEA and FDA actions against medical marijuana patients are “unreasonable, arbitrary, and capricious”, though they themselves quoted this from a DEA administrative law judge. 

It was wrong in not recognizing that the entire pattern of behavior of the federal government in relationship to marijuana policy has been “unreasonable, arbitrary, and capricious” for at least 35 years.

In light of the government’s known pattern of obstruction, the Court’s admonition that pro-medical marijuana supporters should try to get the laws changed by FDA or Congress was at best disingenuous.

The Court failed miserably in its Constitutional obligation to be a check and balance protecting citizens against just this type of action by the legislative and executive branches. The Court grossly failed to safeguard basic constitutional freedoms of US citizens, and rubberstamped government fraud in the name of the war on drugs.

            The only positive aspect of the ruling is this:  the decision was not final.  The Court only ruled on Commerce Clause arguments, and sent the case back to the Appeals court to deal with some of the fundamental rights issues mentioned above. 

 Gonzales v Raich et al

            Two California women, Angel Raich and Diane Monson, legal medical marijuana patients under California’s Compassionate Use Act, had been subjects of federal law enforcement action. Federal cops stole their medical marijuana without filing charges.  Raich and Monson sued to get an order that the federal government may not pursue them under the Controlled Substances Act (CSA).  The Court summarized in their decision:  “Respondents claimed that enforcing the CSA against them would violate the Commerce Clause, the Due Process Clause of the Fifth Amendment, the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity.” 

            The lower court initially ruled against Raich, but was overturned by the Appeals Court.  The Appeals Court ruled only on the Commerce Clause issue, saying that Raich and Monson were not engaged in interstate commerce.  The government appealed.

            The Supreme Court said this in their ruling:  “The case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress' power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally.”

 Court Makes Strange Choice of Questions

            The Court, even after listing the series of claims of how the government’s actions are violations of their rights, chooses to look only at the narrow Commerce Clause question, ignoring (for now) the various Bill of Rights claims, as well as the doctrine of medical necessity.

            The real question they should ask is this:  can a law that flaunts reality be valid constitutionally, when it prevents people from getting needed medicine, throws them in jail, and/or takes their money and property?  “The case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes.”  

            Nowhere in the ruling does the Court make any attempt to prove that Raich is wrong and that the congressional finding is right. They do rationalize a way to say it doesn’t matter (see below).

 

History (sic) of Marijuana Regulation

            The Court described their version of the history of marijuana regulation.  They noted the “War on Drugs” began under Richard Nixon in 1970.  It described how marijuana was placed in Schedule I, meaning that it is without “accepted medical value” and has a “very high abuse potential.”  The original placement was meant to be temporary.  The Court noted,  “Despite considerable efforts to reschedule marijuana, it remains a Schedule I drug.^”  This statement was footnoted with the following:

            “After some fleeting success in 1988 when an Administrative Law Judge (ALJ) declared that the DEA would be acting in an "unreasonable, arbitrary, and capricious" manner if it continued to deny marijuana access to seriously ill patients, and concluded that it should be reclassified as a Schedule III substance, Grinspoon v. DEA, 828 F. 2d 881, 883-884 (CA1 1987), the campaign has proved unsuccessful. The DEA Administrator did not endorse the ALJ's findings, 54 Fed. Reg. 53767 (1989), and since that time has routinely denied petitions to reschedule the drug, most recently in 2001. 66 Fed. Reg. 20038 (2001). The Court of Appeals for the District of Columbia Circuit has reviewed the petition to reschedule marijuana on five separate occasions over the course of 30 years, ultimately upholding the Administrator's final order. See Alliance for Cannabis Therapeutics v. DEA, 15 F. 3d 1131, 1133 (1994).”  (emphasis added). 

            It would seem that such a strong statement by an ALJ, “unreasonable, arbitrary, and capricious,” would be worthy of more follow up than a simple “The DEA Administrator did not endorse the ALJ’s findings,” even if the Court of Appeals for DC repeatedly upheld DEA’s position. 

The Court was presented documented evidence of years of stonewalling and bad faith by FDA and DEA.  Indeed Congress itself made a “finding” that marijuana has no medical value.  Can the Court not see that there is only one reason for Congress to make such a finding – to put American citizens in prison (or otherwise take away rights and property and more) in the name of the War on Drugs.  Unfortunately for Raich, Monson, and millions of other citizens who’ve been arrested, this is not a war on drugs but a War on Citizens-Who-Use-Unapproved-Drugs.  It’s a war on citizens.

It is the Court’s responsibility to explain how the entire government is not being “unreasonable, arbitrary, and capricious.”  Perhaps in one of the lower court rulings, some argument was made why such a decision by a judge can be so easily thrown aside?  However, the Supreme Court did not even try to explain why unreasonable, arbitrary, and capricious was not true then, and why it is not true now.  In fact, by upholding the government’s fraudulent position, the Supreme Court is also being unreasonable, arbitrary, and capricious.

 

Court Makes Serious Legal Error and Horrendous Precedent

            The Court then made an argument that even if marijuana did have medical value, the decision doesn’t change.  The ruling said: 

First, the fact that marijuana is used "for personal medical purposes on the advice of a physician" cannot itself serve as a distinguishing factor. 352 F. 3d, at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses.

This is the rubberstamp of fraud.  The position of the federal government that marijuana has no accepted medical value is simply fraudulent.  The least the government could honestly say is, “marijuana has accepted medical value (at least by the majority of voting citizens in nine states, eg millions of people), but has not gone through the extensive testing required for new drugs, and so does not have FDA approval.”  Any further claims are dishonest and fraudulent.  Their long list of fraudulent claims is an additional chapter.

The Court has set a horrendous precedent:  The Court practically admits the feds position is based on a falsehood, but doesn’t strike it down on that basis.

Moreover, the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner. Indeed, most of the substances classified in the CSA "have a useful and legitimate medical purpose." 21 U. S. C. §801(1). Thus, even if respondents are correct that marijuana does have accepted medical uses and thus should be redesignated as a lesser schedule drug,³⁷ the CSA would still impose controls beyond what is required by California law.(emphasis added)

...Accordingly, the mere fact that marijuana--like virtually every other controlled substance regulated by the CSA--is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA.

            Of course, the Court rationalizes, IF marijuana were redesignated as a lesser schedule drug, it still would be illegal to grow your own, and the feds could still come arrest you.  However, if the placing of marijuana into Schedule I is struck down by the Court, there are no procedures in place that the drug automatically becomes Schedule II or III.  In fact, if the placing of marijuana into Schedule I is struck down, then there are no applicable laws until new ones are put in place. The law is null and void.  Prosecution under invalid laws are invalid. 

            Further, the assumption that marijuana would become a controlled substance is also not warranted.  There is every possibility that an honest look at marijuana will finally allow it to be like any other herb or food, available in health food stores and pharmacies, over-the-counter, or of course in your garden.

 

Politically Correct, But Wrong – Marijuana is Not a New Drug

            The Supreme Court continued with its history of drug regulation, but ignored the parts that invalidate their ruling.  The Court said:  as early as 1906 Congress enacted federal legislation imposing labeling regulations on medications and prohibiting the manufacture or shipment of any adulterated or misbranded drug traveling in interstate commerce. 

            The Court is referring to the Pure Food and Drug Act of 1906.  The Court neglected to mention that this law was passed because large numbers of people were unknowingly becoming addicted to opiates and cocaine (yes, Coca-Cola contained cocaine until 1906). Under the new law, dangerous drugs like opiates and cocaine must be available only by a doctor’s prescription.  Bottles must be labeled.  A US Pharmacopeia was created.  Drugs in common usage were placed in the new US Pharmacopeia, such as aspirin, digitalis, cortisone, and cannabis.  Cannabis is the real botanical name of marijuana.  Along with many other drugs, Cannabis was grandfathered again into the US Pharmacopeia 1938 when the Pure Food and Drug Act was revised.

            Cannabis remained part of the US Pharmacopeia until 1941.  This history of cannabis includes a totally clean safety record during 150+ years of existence on the market.  When society realized that opiates and cocaine were dangerous, no one suggested that cannabis was dangerous.  It was widely available.  It was outlawed in 1941, despite the fact there was no actual scientific work done. The pulling of cannabis from the pharmacopeia was opposed by the AMA at the time.

            Cannabis is not a new drug.  It deserves to be grandfathered again.  Is this the Supreme Court’s job?  In my opinion, yes, if the executive and legislative branches continue to interfere in rightfully allowing citizens to grow an herb or obtain it, then yes, I believe the Supreme Court should strike down existing marijuana regulations and laws, and order DEA and FDA to restore Cannabis to its rightful place. 

 

My Two Favorite Quotes from the Ruling

First:  While discussing whether the Compassionate Use Act would result in changes in interstate commerce, the Court made the following statement in the ruling: “The authority to grant permission (for use of marijuana) whenever the doctor determines that a patient is afflicted with "any other illness for which marijuana provides relief," Cal. Health & Safety Code Ann. §11362.5(b)(1)(A) (West Supp. 2005), is broad enough to allow even the most scrupulous doctor to conclude that some recreational uses would be therapeutic.”   The Court admits that recreational use of cannabis can be therapeutic.  They never protest that this is dangerous.

            Second:  Justice Thomas, in his dissent, made the following assertion:  “In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.”  (emphasis added)  Part of the reason is that it was among the favored crops of George Washington and Thomas Jefferson (it was widely grown, a very important crop, as it could/should be today).  Hemp products were used to make rope, canvas, clothes, paper, and many other common items.

            Another reason it would have been unthinkable is this:  They had just fought a revolutionary war against a dictator named George who was being unreasonable, arbitrary, and capricious.  They were not about to prohibit free citizens from growing crops of any kind.  They are no doubt currently rolling in their graves over this.

           

What’s Next
            After the Court ruled against Raich on the Commerce Clause issue, they added:   “Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals. We therefore do not address the question whether judicial relief is available to respondents on these alternative bases.” (Note that they Court neglected here to mention Ninth and Tenth Amendment claims.)

            The Court adds, “We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But 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. Under the present state of the law, however, the judgment of the Court of Appeals must be vacated. The case is remanded for further proceedings consistent with this opinion.”
            So, next, the lower courts will see a battle of our Bill of Rights protections, and eventually the Supreme Court will have another opportunity to fulfill its constitutional obligation to protect the rights of the citizens from overzealous, irresponsible government.

            And next, since that is what the Court itself advised, the people must choose representatives in Congress, the Senate, and the White House who will change the policy.  We need leaders who will not participate in fraud against the people.  The current ones seem too willing to go along with fraud in the name of the War on Citizens-Who-Use-Unapproved-Drugs.  Don’t forget:  it is a war on citizens, not on drugs.    Is that constitutional?