Medical use of marijuana

In Gonzales v. Raich the US Supreme Court has held that a federal government law on inter-state trade and commerce, banning the possession and production of marijuana over-rules the Californian Compassionate Use Act. The Californian Act allows people suffering serious medical conditions to use marijuana where recommended by a doctor and allows them, or their carers, to cultivate it for that purpose.

Whatever your political views on recreational use, the medical benefits of marijuana for cancer sufferers are established. It is an effective form of pain relief and, just as crucially, is an effective means of regaining appetite after aggressive chemotherapy – weight gain after the wasting effects of chemo being important to survival.

The politics of the decision are bizarre: a number of politically liberal judges had to back the Federal ban to maintain their position on strong federal government; a number of conservative judges in the minority opinion would have preserved the Californian Act in order to uphold States’ rights.

Legally, though, I find the majority opinion not entirely credible.

The essential argument is Congress has the power to regulate inter-state commerce. This is a power to regulate the national market. It can thus decide there will be no national market for a product. This can only be upheld if there is no State-level market, therefore it can ban intra-State commerce in that product.

That is the majority found that: “Congress’ power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce is firmly established.” Further, considering comparable case-law, the majority found that “production of the commodity [in question] meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.”

I’m no economist, but this strikes me as odd. Sure, if everyone grew their own apples, there’d be no national market in apples. But the Constitutional power is to regulate “commerce”: which would seem to be a question of trade, not its absence. It seems odd that this power should extend to situations where there is no trade taking place, or where home-production's impact on demand means there will be less commerce to regulate.

More bizarre is the idea that home-grown (or even purely locally traded) products, even in small quantities have a “substantial effect” on the national market. The majority decision’s references to Congressional “rational” concern about “diversion into illicit channels” also seems simply puritanical. The average terminally ill person, it seems to me, is unlikely to start dealing in MJ for the hell of it.

Not that there’s anything the Court can do about it, of course, but marijuana is also classified as a Schedule One narcotic on the basis that, among other things, it has “no accepted safety for use in medically supervised treatment”, which is simply a factual error. Unfortunately, there’s no reversing a factual error entrenched in legislation judicially.


In the face of this, Justice O’Connor’s paean for Federalism is welcome:

One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting).

Which I’m sure sounds familiar to any Australian who’s ever lived in the ACT or Northern Territory.

The minority has been criticized for being too pro-States’ rights: opening the door to a pre-New Deal era of ineffectual Federal regulation. I think this overlooks the emphasis in the minority’s reasoning on the need to find a “substantial” impact or relationship between the measure in question and interstate trade or commerce. It seems a much more nuanced approach to the case law than that of the majority.

The decision also contains a fascinating history of the legal regulation of marijuana in the US.