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State Law Survives High Court Ruling PDF Print E-mail
Written by Chris Conrad   
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
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
    California Attorney General Bill Lockyer immediately announced that all the state laws remain unchanged. Six weeks later, the barely-functional state patient ID program was put on hold for a few days to consider if it might violate federal law or collect data that would put patients at risk of federal prosecution, then restored.
    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.”
 
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