Beyond Medical Marijuana


Outrageous as it is that the federal government (or any government) would try to prevent patients from using a homegrown medicine that relieves their suffering, the most important implications of yesterday's medical marijuana decision have little to do with medical marijuana per se. Although the case was provoked by the Drug Enforcement Administration's 2002 seizure of a mere six marijuana plants that Diane Monson was growing for her own medical use, that sort of raid is unusual. The federal government handles only about 1 percent of marijuana prosecutions, and it tends to focus on large-scale cultivation and sales. So while patients in California and other states that recognize marijuana as a medicine are understandably nervous now that the Supreme Court has given the DEA a green light to take away their medicine and arrest them, such cases wil remain rare. And over the long term, the whole medical marijuana issue may be rendered moot by the availability of legal cannabis-derived medicines such as GW Pharmaceuticals' Sativex spray (which is not approved in the U.S. yet) and inhalers that deliver THC and other cannabinoids without smoke (still to be developed).

Gonzales v. Raich will have a more significant and lasting impact on the balance between state and federal power, especially in the area of drug policy. The most plausible path to serious drug policy reform is state experimentation, as opposed to the wholesale repeal of prohibition at the federal level (much as I'd like to see that). The reduction in penalties for possessing small quantities of marijuana that we've seen since the 1970s illustrates how the war on drugs can become substantially less punitive and oppressive without congressional action. (The downside of the "decriminalization" trend has been the diminution of outrage about drug laws that no longer imprison recreational pot smokers for possessing small amounts of marijuana.) But in the wake of Raich, it's hard to imagine a state moving closer to true decriminalization by, say, eliminating all penalties for marijuana possession or allowing retail sales (as proposed by a recent Nevada ballot initiative). Even a narrow reform such as allowing doctors to prescribe lethal drugs to terminal patients who want to kill themselves–an issue now before the Supreme Court, which has agreed to decide whether the Justice Department can use the Controlled Substances Act to undermine Oregon's Death With Dignity Act–seems untenable in light of the super-elastic Commerce Clause endorsed by the Court in Raich.

Beyond drug policy, the possibilities for federal interference with intrastate activities and state policy decisions are virtually limitless, as the three dissenters noted. Whether the Constitution allows the federal government to prohibit people from growing marijuana for their own medical use because those plants, in the aggregate, have a "substantial effect" on interstate commerce (as five justices claimed), or because the ban is a "necessary and proper" part of a broader regulatory scheme authorized by the Commerce Clause (as Justice Antonin Scalia asserted in his concurring opinion), just about any intrastate activity, no matter how personal or limited in scope, could be covered by the same rationale, provided Congress worded the legislation properly. The majority's definition of "economic" activity ripe for aggregation–"the production, distribution, and consumption of commodities"–would include growing tomatoes in your backyard, crocheting a blanket for your grandchild, or making a birthday card for your mother. According to the Supreme Court, the only thing stopping Congress from regulating or banning these "commodities" is that it hasn't gotten around to them yet.