Can Congress outlaw medical marijuana?

Can Congress outlaw medical marijuana?

by Mariah Wojdacz, December 2009

The Supreme Court will rule soon in the case of Ashcroft v. Raich. And, medical marijuana users might just get a pass to smoke grass. The question the court must answer is: whether Congress may legislate the in-state cultivation, possession, and free distribution of marijuana for medical use.

Constitutional Law

Let's start off with a little lesson in Constitutional law. Don't worry it will only take one second. The Constitution gives Congress a number of powers: to create armies, to create a post office, to declare war and to tax as well as spend. But, in addition, Congress also has power to regulate commerce between the states. The Commerce Clause, as law students and lawyers have come to know it, gives Congress the power to regulate the channels of commerce (highways, railways, & waterways that connect states), instrumentalities of commerce (airplanes, trucks and vehicles traveling those channels), and activities which have a "substantial relation" to interstate commerce (basically anything the court wants to allow Congress to regulate). But more specifically, interstate commerce is business taking place between two states as opposed to within one state. Thus, the Commerce Clause gives Congress a wide range of commercial activities it can regulate.

In Supreme Court cases about the Commerce Clause, the issue typically comes back to whether Congress has exceeded this power. Ashcroft v. Raich is no different. In order to "fight for the right" to use marijuana for medicinal purposes, Raich and others must show that Congress is regulating an activity that is not in fact closely related to interstate commerce.

The laws of the land

Currently, ten states have laws permitting the use of medical marijuana. But, this legislation stands in contradiction to the Federal Controlled Substance Act. This act makes cultivating and possessing marijuana illegal. In other words, patients using marijuana in compliance with state law are actually violating federal law and could still be prosecuted by the feds.

Back to Ashcroft v. Raich

Californians Angel Raich and Diane Monson are two patients that risk prosecution under the Federal Controlled Substance Act. In October 2002, they asked a federal court to forbid the Drug Enforcement Agency (DEA) from prosecuting them under federal law. Raich and Monson argue that Congress's Controlled Substance Act is unconstitutional because Congress is only permitted to regulate interstate not intrastate commerce.

According to Raich, congress has no jurisdiction over patients using marijuana in accordance with laws like California's Compassionate Use Act, so long as they cultivate, obtain, and possess the drug without crossing state lines. States' rights activists agree, and although Alabama, Louisiana, and Mississippi have no laws permitting the use of medical marijuana, all three have all filed briefs arguing that the issue should be left up to the states.

Hold Your Breathe

The High Court must decide if Raich's use of marijuana for medical purposes substantially affects interstate commerce. If not, then Raich wins, and the DEA is stripped of all authority to prosecute her and others like her. But if the Court rules against Raich, then nothing really changes - no state laws are going to be overturned. The DEA only makes 1% of all marijuana arrests, anyway; the rest are made by state and local law enforcement, so citizens like Raich and Monson do not seem to have much to fear.

Yet, this ruling will be a landmark decision either way it is handed down. This is only the second medical marijuana case to come before the Supreme Court, but arguments for states' rights pre-date the Constitution. In the first medical marijuana case, the Supreme Court held that there is no medical necessity exception to the Controlled Substance Act (United States v. Oakland Cannabis Buyers' Coop,). The question now:Whether there is a medical marijuana exception to the Commerce Clause? A ruling is expected later this spring, so until then, patients and states' rights activists alike will have to hold their breath.