Marijuana and the Constitution: Why Pot is Still Illegal & What to Do About it

So here you are. You, along with millions of others in your home state, have passed marijuana reform.

Whether that reform is allowing medical use of marijuana (Alaska, Arizona, California, Colorado, Delaware, District of Columbia, Hawai’i, Maine, Maryland, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington), decriminalization (Alaska, California, Colorado, Connecticut, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New York, North Carolina, Ohio, Oregon), or even permitting sales for profit (Colorado), you have the right to be proud of yourselves. So why is it still criminal to light a congratulatory joint?

The answer lies in our federalist system of government – the separation of powers between the states and the federal government comes straight from the Constitution: Article VI, Clause 2 states that the “Laws of the United States… shall be the supreme law of the land; and the judges in every state shall be bound thereby.” Conversely, the Tenth Amendment states, “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.” Taken together, these constitutional provisions have been interpreted to mean that states have wide freedom in writing their own laws, except when federal laws or the U.S. Constitution require a different outcome. When state law is in conflict with federal law, federal law controls.

Therein lies the rub. If your state law allows patients to possess and use marijuana for medical purposes, those laws are in direct conflict with the federal Controlled Substances Act (“CSA”), which classifies marijuana as a “Schedule I Drug,” meaning that, in the federal government’s view, marijuana has a “high potential for abuse” and “not currently accepted medical use in treatment in the United States,” and that “there is a lack of accepted safety for use of the drug or other substance under medical supervision” (yes, they really are that clueless). So the Feds can still bust you even if you are a “legal” medical user in your state.

Likewise, if your state has enacted decriminalization reform (possession of less than a certain amount, usually an ounce, is punishable by fine only), that doesn’t mean that you have a “Get Out Of Jail Free” card, because the CSA provides for harsh prison sentences, especially if you’re caught with 100 or more plants or 100 or more kilograms of cured product (minimum of five years, minimum of ten if you have a prior felony drug conviction).

What This Means To You

You might reasonably say, “So what? The DEA doesn’t patrol my neighborhood, and I don’t deal drugs, so I’ve got nothing to worry about.” First of all, that’s not quite true. There are numerous examples of the federal government invading the homes of patients who only wanted to medicate in private, such as in the case of Angel Raich, who grew six plants at home in compliance with California’s Compassionate Use Act of 1996 – also known as Proposition 215 – because it was the only treatment which helped her manage chronic and excruciating pain. Nevertheless, the DEA destroyed her plants, effectively sentencing her to a life of constant suffering. Even so, cases like Ms. Raich’s are the exception, not the rule; the vast majority of simple possession charges are brought by the states, not the federal government. Simply put, the Feds have decided for now not to focus on individual users too much, though they could always change their mind. Rather, it’s federal meddling at the levels of production and distribution which have the greatest effects on the lives of Americans.

Consider the recent experience of the city of Oakland, California, home to some of the most progressive marijuana ordinances in the nation. In 2010, the City Council voted to pass its most radical reform yet: the licensing of four large-scale marijuana cultivation operations within the city limits. The plan would have brought millions in tax revenues and hundreds of jobs to a city hit especially hard by the recession, and could have opened the door to regulations guaranteeing a lack of pesticides and other harsh additives in high-quality medicine as well as providing an alternative to the hazardous “home grows” for which the city had become notorious. But the Feds shut it down. In 2011, Melinda Haag, the U.S. Attorney for the Northern District of California, sent a letter to the Council, stating, “Individuals who elect to operate ‘industrial cannabis cultivation and manufacturing facilities’ will be doing so in violation of federal law.” So the plan was scrapped.

Nor does federal interference end there. Despite the so-called “Ogden Memo,” in which the Department of Justice explained that it would not use its resources to prosecute individuals who were in compliance with state marijuana laws, the Obama administration has continued the Bush practice of raiding dispensaries and patient collectives. Even more dispensaries have been hit with IRS audits which could result in crippling tax penalties.

The bottom line is this: true freedom to cultivate and distribute marijuana will only come when federal policies

The Extent of the Federal Government’s Reach

Recall the Tenth Amendment, which provides that whatever powers are not granted to the federal government by the Constitution are “reserved to the States, respectively, or to the people.” This is important, because, unlike the states, the federal government does not have broad powers to determine policy; any federal law must be authorized by some power granted to the federal government by the Constitution. This is why the federal government is said to be one of “limited and enumerated powers”: it can only do what the Constitution says it can do.

To any American alive in 2012, it may seem that anyone who claims the federal government has limited powers must be smoking something; its reach seems unlimited. But it was not always this way. To understand how we got here, we must examine what is arguably the most important provision in the whole Constitution: Article I, Section 8, clause 2: the “Commerce Clause.”

The Commerce Clause grants Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Furthermore, the Constitution gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” including the Commerce Clause. Taken together, these provisions give Congress the power to make all laws “necessary and proper” to “regulate Commerce… among the several States.”

If it’s not at all obvious to you why these two clauses give the Feds the right to bust down your door to steal your medicine, you’re not alone. This was the position taken by Angel Raich, who, after being raided by the DEA, asked a federal judge to declare that Congress didn’t have the authority to criminalize her behavior, because she simply wasn’t participating in interstate commerce. Indeed, she was not participating in commerce at all. She never bought marijuana; all of her medicine was provided to her by her caregiver at no charge. She certainly never sold it, because she needed all of it to manage her pain. Where’s the “commerce” there?

On December 16th, 2003, the Ninth Circuit Court of Appeals agreed with Raich, declaring that “We find that [Raich and her fellow plaintiffs] have demonstrated a strong likelihood of success on their claim that, as applied to them, the Controlled Substances Act is an unconstitutional exercise of Congress’ Commerce Clause authority.” The Circuit Court ordered an injunction against any further meddling by the Feds.

The Supreme Court reversed, 6-3. In their view, the DEA had a constitutional right to steal Raich’s medicine because, even though Raich was not engaged in any interstate commerce, it was still “necessary and proper” to raid her home, because (see if you can follow this) someone else (not her) might possibly abuse his status as a medical marijuana patient to sell his medicine on the interstate market, and therefore it was both “necessary and proper” for the federal government to criminalize all patients, because when taken as a whole, the possibility of any one patient selling across state lines, multiplied in the aggregate (well, there are millions of us) equaled a probability that someone was doing it somewhere, and after all, the federal government (which remember, is the only entity in the country with the power to print all the money it wants) really can’t be bothered to find out who.

Such a broad interpretation of the Constitution would surely shock the Founding Fathers, were they alive today. At the time the Constitution was ratified (1788), the Commerce Clause was considered a minor power, because almost all commerce happened close to home. There were no railroads, no UPS, no Amazon.com. Chances were good that nothing you either bought or sold would ever leave the state, and thus the federal government was seen more as a referee for disputes running across state lines, and certainly not the invasive player it has become. Of course, the biggest difference between now and then is in the scope of our national economy: under the reasoning employed in Raich, it’s hard to imagine any activity, any aspect of our lives, which can’t be micromanaged by the Feds, because almost everything seems connected in our hyper-globalized economy. If growing pot at home is “interstate commerce,” what isn’t? Breathing air?

What Can We Do?

If all of the above seems very depressing to you, then you know why I get high. But hope is not lost; having failed in the courts, it is now time for us in the marijuana community to set our sights on Congress.

Even now, there are three bills pending in Congress which could change everything. The first, HR 2306, introduced by Representative Barney Frank (D-MA) would remove marijuana from Schedule I of the CSA, allowing doctors to prescribe it for their patients. The second, HR 1985, introduced by Pete Stark (D-CA), would eliminate discriminatory provisions in the tax code which make it nearly impossible for cannabis collectives to both provide marijuana to their patients and pay their tax bills. The third, HR 1984, would repeal a current federal law which requires banks to spy on their customers in order to find out which ones might be running a marijuana operation, and to report their activities to the federal government.

No matter what state you live in, you can urge your representatives to vote for these bills. No matter how corrupt Congress may be, history has shown us time and again that, if enough voters demand change, they will get it. In this age of politicians promising anything to get the money they need for reelection, it’s easy to forget that they need one thing even more: Your vote.

Written by Jeremy Daw for Issue 3 of Cannabis Now Magazine.