Behind the crackdown

The questionable legal status of medical marijuana is confusing, even for Congressman Doug Ose. Yet a resolution to that legal ambiguity could be coming soon.

The Woodland Republican (who didn’t return repeated calls from SN&R) probably wouldn’t admit to being confused, and he’s certainly cast the matter in black-and-white terms in recent letters he’s written on the topic, including a May 23 letter to Attorney General John Ashcroft urging a federal crackdown on California pot smokers.

Even though Californians overwhelmingly voted to legalize the use of marijuana for medical reasons through Proposition 215 in 1996, Ose’s letter correctly notes that federal law trumps state law under Article VI of the U.S. Constitution, also known as the Supremacy Clause: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”

As such, Ose and two other Republican members of the House Committee on Government Reform urged Ashcroft to immediately crack down on the medical marijuana infrastructure in California in order to “send a critical anti-drug message to our nation.”

The federal government responded over the last few months by coordinating high-profile raids of cannabis cooperatives in the Los Angeles and Sacramento areas, and promising more to come.

The occasion for Ose’s letter to Ashcroft was the U.S. Supreme Court’s May 14 decision in U.S. v. Oakland Cannabis Buyers’ Cooperative, in which it found the club’s distribution of marijuana to be illegal, refusing to recognize a “medical necessity” exception to the federal Controlled Substances Act (CSA), which lists marijuana as a “Schedule I” drug with no accepted medical benefits.

Although the narrowly written ruling doesn’t strike down Prop. 215 or its protection of legitimate users from prosecution under state law, Ose has sought to significantly broaden the decision’s implications. In a letter to constituents on the matter, Ose wrote: “the U.S. Supreme Court unanimously ruled that marijuana has ‘no currently accepted medical use treatment in the United States.’ Their ruling effectively overturned Proposition 215 as well as similar laws passed in other states.”

Actually, rather than ruling on marijuana’s medical efficacy, the court was simply quoting the CSA, which could be changed by Ose and his congressional colleagues at any time. Or if marijuana advocates are successful in a current legal challenge, jurisdiction over marijuana could be taken away from the federal government altogether.

Attorneys for the Oakland Cannabis Buyers’ Cooperative have filed a motion with the Ninth Circuit Court of Appeals seeking a hearing on the central question of whether Congress has the authority to regulate possession of marijuana, or whether that authority rests with state government, a question that has never been directly addressed by the federal courts.

That gap in legal logic can be explained by the fact that few simple possession cases are ever prosecuted under federal law, and the eight states that have legalized the medical use of marijuana have done so only in recent years, so a good test case on the question has yet to come before the high court.

Various court rulings have upheld the constitutionality of the CSA, finding that Congress derives its authority to regulate illegal drugs from the Constitution’s “Commerce Clause,” which gives Congress the power “to regulate commerce with foreign nations, among the several States, and with the Indian tribes.”

Even when drugs remain within the state, the courts have found that such activity “contribute[s] to swelling the interstate traffic in such substances,” and therefore falls under federal purview. But each of the cases involved selling drugs, or possession with intent to sell, leaving open the question of whether growing a small amount of marijuana for personal use would constitute “commerce.”

Because if the courts find it doesn’t, then regulation of marijuana would be deemed a state issue, which is the level of government that usually regulates health and safety matters. In fact, the Constitution’s Article X would then clearly make it a state issue: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Ninth Circuit is expected to decide by January whether it will hear the appeal.