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George A. Nation III: Feds should respect states’ marijuana laws

Different strains of marijuana are displayed in West Salem Cannabis, a marijuana shop in Salem, Ore., where recreational marijuana is legal.

Different strains of marijuana are displayed in West Salem Cannabis, a marijuana shop in Salem, Ore., where recreational marijuana is legal.

(Andrew Selsky / AP)

All marijuana, including that used medically is illegal under federal law; marijuana is a Schedule 1 drug under the Controlled Substances Act. The Obama administration’s Justice Department had voluntarily chosen not to pursue marijuana use if it was consistent with state law. Recently, the Trump administration has indicated it will enforce federal law, against personal non-medical marijuana use even in states where such use is legal. This is a mistake.

Constitutionally, health and safety issues are generally under the purview of the states and not the federal government.

Unfortunately, the Supreme Court has worked much mischief in this area as a result of a coerced, overly expansive interpretation of the Commerce Clause that began in 1937. That’s when President Roosevelt threatened to “pack the court,” a political scheme designed to alleviate his frustration at having his Commerce Clause-based legislation seeking to address the Great Depression invalidated by the court.

At this time the Supreme Court had developed an interpretation of the Commerce Clause designed to strike a balance between state and federal power. The court would allow federal regulation of an activity based on the Commerce Clause only if it had “a close and substantial relation” to interstate commerce.

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Without some limitation, the court felt, correctly in my opinion, that Congress’ power under the Commerce Clause would be virtually unlimited to the great detriment of our federal system. In any event, Roosevelt’s threat had a broad and long-lasting chilling effect on the court’s Commerce Clause jurisprudence. From 1937 until 1995 the court refused to invalidate any congressional regulation based on the Commerce Clause.

However, recently in cases related to the Gun Free School Zones Act of 1990, the Violence Against Women Act of 2000 and the Affordable Care Act of 2010, the court has found at least some limit to federal authority under the Commerce Clause. Unfortunately though the court failed to apply this limit in the case of medical marijuana.

In Gonzales v. Raich, which involved marijuana production for personal and legal — under California state law — medical use, the court upheld a federal prosecution under the Controlled Substances Act. The court’s decision relied heavily on a 1942 case, Wickard v. Filburn, which prohibited a farmer from growing wheat on his own land for his own personal use, notwithstanding the fact that this wheat would never enter interstate commerce or even intrastate commerce. In Wickard the court reasoned that if, hypothetically, many farmers did the same thing, their collective efforts would certainly have an impact on interstate commerce and that potential impact was enough to give Congress the right to regulate.

Since 1996, 28 states and the District of Columbia have approved the use of medical marijuana. Six states were added in 2016, including, with issues, Louisiana. More states will surely follow suit. Some states have also legalized marijuana for personal use but the main focus here is medical use because one criterion for being a Schedule 1 drug under the law is that the substance has no recognized medical benefit.

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This is clearly not the case with marijuana. More than half the states have recognized its medical benefit and an additional 14 states allow the use of cannabidiol (an ingredient in marijuana that is not psychoactive) for the treatment of epilepsy and other seizure disorders. Thus, 42 states have recognized that there is medical benefit from marijuana.

The drafters of the Constitution purposely created a federal government of limited powers, which means the federal government may only exercise enumerated powers. I do not think the Commerce Clause gives the federal government the power to regulate medical or personal use marijuana, but given the Gonzales decision the court is unlikely to agree.

However, there is another possibility. To be constitutional, all legislation must at least have a rational basis. Government action that is arbitrary or capricious must fail rational review.

The paradigm of arbitrary and capricious conduct is the assertion that an objectively false statement is true simply because the government asserts its truth. Given marijuana’s now well-recognized medical benefits, there is simply no rational basis for concluding that marijuana has no recognized medical benefits.

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Thus, listing marijuana on Schedule 1 is not a rational exercise of government power. The court can and should find that the listing of marijuana on Schedule 1 is unconstitutional. Such a ruling would leave marijuana unregulated under the Controlled Substances Act until Congress acts to add it to a more appropriate CSA Schedule with appropriate exceptions at least for medical use and perhaps for personal use.

George A. Nation III is a professor of law and business at Lehigh University and is of counsel to Maloney, Danyi, O’Donnell & Tranter in Bethlehem.


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