Coming up with an appropriate title for this is impossible
The capacity to give one's attention to a sufferer is a very rare and difficult thing; it is almost a miracle; it is a miracle.
-Simon Weil
*******
I'm not a legal expert, so there's no way I can put forth an opinion as eloquently as our friend Kinjo. But today the Supreme Court put forth an opinion on Ashcroft vs. Raich, regarding the use of medical marijuana. Long story short, our beloved Bush administration believes that the state has no right to pass a law allowing possession of marijuana, trumping any federal anti-drug laws. Although Ms. Raich, who suffers from terminal brain cancer, has been prescribed marijuana by her physician to alleviate her pain, she can still be prosecuted under federal law, thanks to the Supreme Court. (The National Review puts it in terms of Federal vs. States' rights here).
/sarcasm
My reaction? Good thing they prevented this woman from using the rest of her life to set up a massive drug-trafficking operation. (5-year survival rate for brain cancer patients is less than 10%; life expectancy for patients diagnosed with glioblastoma multiforme is less than 1 year). I mean, WHEW! our nation really dodged a bullet there, huh? Because SURELY, the first thing a cancer patient is going to do after diagnosis of a terminal disease, is find a way to break the law. What better way to make use of the rest of your time on earth?
My advice to her: just sit there and deal with your pain! God meant for suffering to exist, now stop whining.
/end sarcasm
posted by Mikey at 3:25 PM
13 Comments:
As I understand the ruling, the logic behind the decision is quite a bit more complex. Typically, members of the conservative sector are strong advocates of states' rights, so this decision is really counterintuitive if you look at it strictly along party dogma. While the Supreme Court leans to the right, I'd like to believe that their decisions are somewhat less susceptible to party influences than decisions made in the Leg. or Exe. branches. This decision is less a remark on whether marijuana should be used in a therapeutic setting and more a statement on how that should be made legal; no state law should fly in the face of a federal law, so the implication is that the legislature should revise federal law to allow for medical exceptions. But what the hell do I know... perhaps Kinjo has some (educated) opinions.
PS: You can't knock someone's ability/desire to commit hardcore crimes, infirm though they may be. There was a story today about the 80 y.o. woman who was running a prostitution circle in Lindenwold, NJ (< 1 mile from where I grew up). Even in the suburbs... anyone can peddle flesh and drugs.
Yes, the case was more complex than my meager potrayal. It certainly wasn't my intention to oversimplify the sides as left vs. right or Democrat vs. Republican. Just note that the article I linked to was in The Nation, a publication which leans to the right, and they saw a 'win' for Ashcroft as a nod toward federalism trumping the state's ability to provide for its own citizens. If anything, to my admittedly unqualified eye, this case seems to embody the current struggle between traditional conservatism (smaller government, more power to the state) and the moral conservatives (pro-life, anti-drug, God, no-fun-whatsoever).
And the moral argument did come through in the decision:
Justice Stevens also expressed doubt that all the marijuana supposedly grown for medical purposes will be used strictly to alleviate pain and suffering. "The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market," he wrote, noting "the admittedly enormous demand for recreational use."
Which is all fine and dandy - but in the end, they really haven't curbed recreational use to a great degree with this decision, but they have effectively created a hurdle for people to overcome who want to use it legitimately for pain management. So - what do we let dictate our legislation - the brain cancer patients in pain or the frat boys who are going to abuse the system for a good time? Personally, my vote's with the patients.
Your comment on the struggle between factions within the "conservative" camp is an excellent point. And anyone who considers hindering bona fide pain alleviation as a "win" is a douchebag. In addition, I also find Justice Stevens's moral argument specious, at best; our entire system of jurisprudence is designed such that no one innocent man is jailed, even if tens of guilty go free... the state recognizes that people will get away with crime in this system of justice, and despite this fact, we continue to value the rights and well-being of the individual over the desire to punish criminals. My vote is also with the patients... let other people get high if they want (and prosecute them if you wish), but let the sick have their weed. I hope this roadblock is only temporary...
On the flip side:
Imagine if the SC ruled that a state could make up whatever law it wanted, regardless of federal law. Imagine what the crackheads around the country could do... in places like Florida and Ohio and Texas...
Representatives from those ten-or-so states with legalized medicinal marijuana should introduce legislation in Congress ASAP in order to fulfill the mandates from their constituents.
Regarding the opposing factions, that's the frustration I have with the case. It's difficult to find that middle legislative ground that can allow people to use marijuana medically, but also prevent its abuse by recreational users. "We understand you're in pain, but...deal with it." It seems that there are those that refuse to see that the federal drug policy has failed, in that they haven't eliminated drug abuse, let alone infiltration of illicit drugs into our community. Of course, they view the current drug policy as the only thing that's preventing the entire population into a bunch of addicts. Therefore, they see this case as important because, if passed, that just leads to the slippery slope of drug abuse by the masses. The slippery slope is feared in other areas, such as stem cell research (leading to mass production of people screwing around to sell their embryos) and gun control (more background checks on gun purchasers will lead to the government taking all of our machine guns leaving us unarmed).
If the state has no autonomy whatsoever, then why have states and commonwealths at all? I mean, we don't want any more communes like Waco, I understand, and obviously there should be things that the federal government should be able to outlaw (see: Civil War; slavery) but where is the line drawn?
Kinjo, where are you? We need some legitimate legalese in here.
I don't believe in the slippery slope theory. And you're right... it's been used to justify any number of injustices (much like, "I was just following orders.") And I hope that is why Congress exists... to stem the tide that peaks (and peeks) over the slope.
At first glance, (right wing) legislators seem to be more interested in telling people what they can and cannot do, rather than coming up with good ideas on how things should be done. And the latter is the essence of their job - come up with a compromise that meets in the middle of a discourse, to best affect a solution to a problem. That's where the line should be drawn... in the middle... and slowly, over time, the middle will shift, along with the sensibilities of the people.
I'm sure Mikey and I can wax intellectual on the topic all day long.
The Court today did a really interesting thing while doing the completely predictable thing as well.
First the predictable thing: it based its ruling on the Commerce Clause of the U.S. Constitution. This is the idea that the federal government has the right and ability to regulate interstate (as opposed to intrastate) commerce and anything that affects it. Here is your federal supremacy portion of the ruling. The Court hardly ever denies the federal government the right to control something based on the Commerce Clause (Article I, Section 8, Clause 3), including things you'd never expect to have an impact on interstate commerce - like a barbeque joint on the side of a rural state highway, for example. It may serve local patrons almost exclusively, but since it receives the bulk of the food it sells from interstate commerce the federal government can enact law that affects that barbeque joint (and forces it to say, serve Black customers -- see 379 US 294 (1964) http://www.oyez.org/oyez/resource/case/199/).
The interesting thing about today's ruling is that it does absolutely nothing to invalidate individual states' medical marijuana laws. Here is the states' rights (i.e., federalism) portion of the ruling. It is still legal under California law to prescribe, sell and possess marijuana for medical purposes to the extent that individual states laws provide for such activity. All the SCOTUS did was to uphold the right of the federal government to prosecute those people under existing federal anti-narcotics law.
I suppose one could say that this second aspect was also completely expected since the validity of the various state laws were never at issue in the litigation brought before the Court - only the validity of the Feds' prosecution of terminally ill hopheads in those states.
In effect, the SCOTUS did absolutely nothing to promote federal supremacy over states' rights today. It only solidifies the status quo that has existed since 1996 when the first medical MJ law was passed and upholds what has been the case for 200 years - that D.C. and the states are vying in a complex bureaucratic dance for sovereignty and control over the behavior of their shared citizens.
So what happens now? It is up to either Congress to protect the rights of patients who seek to spark a jay, or the attorney general's discretion whether to continue to pursue this "crime" in his/her agenda for the DEA. Given who's in office, we know who is going to jail.
Of course, my personal opinion is that the whole war on drugs is an abject failure and including marijuana as a schedule 1 narcotic (see the Controlled Substances Act of 1970) is about the most ridiculous thing ever conceived in that "war." I'm not saying it's a healthy thing to chronically smoke chronic, but to classify it as schedule 1 while the FDA does nothing to regulate the more deadly and addictive tobacco cigarette as a drug is the very apotheosis of hypocrisy. Add to that the combination of this case with the federal government's fight against Oregon's Death With Dignity Act and you get a bigger picture of the Bush Administration's "Compassionate Conservatism."
This comment is not offered as and does not constitute legal advice. I do not seek to represent you. The views and opinions expressed herein are my personal views and opinions.
Fascinating analysis, Kinjo. It just goes to show how much difference there is between what actually happens and what the press represents; it also underscores how little I actually know about the law. I find it curious, though, that something that is "illegal" in the US can be "legal" in California.
I tend to see things simplistically:
unable to be prosecuted before = legal
able to be prosecuted now = illegal
So to me, it looks like the SCOTUS has undermined the will of the Californians and made the use of medical marijuana a de facto illegality. But evidently I'm wrong... and I'm big enough to admit that.
Yay Pistons. Eat it, Shaq.
Yes, thanks for the legal analysis. Of course, I don't need Kinjo to remind me of my legal ignorance.
To me it was also a refresher from high school civics. The SCOTUS doesn't make law, hence it's no more legal or illegal today to prosecute the individual for possession, they merely said the state law doesn't protect the individual from such prosecution (I think - or, at least, it preserved the status quo). Whether that happens or not, becomes more of a political question - could the moral majority win such a case against a patient who needs MJ for treatment of his or her pain?
Of course, it's only a small stretch in logic to link drug users to supporters of terrorism. Yep, Kinjo's right. We're going to start locking up brain cancer patients.
Don't bemoan your legal ignorance. Seriously. Who the hell wants to know about the vagaries of the Commerce Clause of the U.S. Constitution? Don't even get me started on the Dormant Commerce Clause!
Actually, I don't think anyone is going to start rousting cancer patients who are trying to take the edge off chemo (Alberto Gonzales might as well kick his own ass in that instance). But what is very damn likely is that the DEA is going to start shutting down medMJ growers and distributers and maybe even sieze some assets under fed anti-racketeering law. It'll force cancer patients to head back to more dangerous locales in the cities to seek their medicine from less reputable suppliers.
And yeah, VS, it is weird to consider that something can be legal in California and illegal within the United States (and therefore by extension be simultaneously legal and illegal in California -- the threat level depending upon the acronym on the back of the jacket of the cop banging on your door -- LAPD: get my scrip, DEA: quick, hide the dope!). It was a pretty uncommon turn of events, hence the initial court action.
BTW, possession of marijuana isn't just de facto illegal. It is de jure illegal under federal law (and under California law w/o a legit Rx).
You're right Cathy. The Commerce Clause is really hard to get one's head around, plus the issue of medical marijuana and the war on drugs is one that sells papers, so I think you're right that the story is being misrepresented and misinterpreted.
All of the legal analysis of this decision I've read so far seems to think this is a huge blow to states' rights (if that's what you're referring to). My opinion is that this does nothing to further negatively impact states' rights, something which has already been seriously curtailed - it merely keeps the prior existing restrictions firmly in place. It has never been the case that states could override federal law by passing a contrary law of their own in an area where the feds want to have control (see nuclear regulation, for example - just try to keep nuclear waste from being stored in your state).
That is to say that a state can't legalize something that the federal government has decided that it will criminally prosecute and force the feds to give up. The good: that means that a state couldn't legitimize child pornography or reinstitute racial segregation and by fiat undermine federal supremacy in those areas. That's the status quo. Not a blow. The Bad: it's not likely that gay marriage will ever be nationally recognized and same sex partners will never receive the federal benefits of marriage without congressional action. The Ugly: some cancer patient who grows cannibis plants somewhere will be arrested and prosecuted in order to provide an example of federal might.
Was it a failure of states' rights advocacy? Sure. They made no progress in the area. Was it a regression to a prior state of affairs that we had moved beyond as a nation? Hardly. Cases like Lopez and Morrison which curtailed (somewhat) Congress' Commerce Clause authority are the real departures from prior SCOTUS decisions on the matter. Those were earth-shattering decisions.
I'm not saying I agree with the decisions in Lopez, Morrison, and now Ashcroft, because I don't. I think they're all bad law. But only the earlier decided two changed the way the federal governement can act.
All three decisions are conservative in nature, incidentally. Lopez restricts Congress' right to pass anti-gun legislation, Morrison restricted the right of a rape victim to seek federal civil rights protection, and we all know what Ashcroft does. Another non-surprise.
But the law is an area in which reasonable minds can often differ. My interpretataion of this decision is exactly that, an interpretation. Someone much smarter than me likely has an argument why this is a sudden and terrible blow to state soveriengty.
Now to me the story here is the non-story aspect. Here we have a dialogue about marijuana usage, only it's a pseudo-dialogue because it's being framed in the context of interstate commerce. We know that the SCOTUS preserved the status quo, so, in essence, nothing happened. The bigger message is that this is but one of the many hot-topics that won't be truly discussed at an intellectual level with data and pie charts and some near-sighted statistician showing us exactly where our anti-drug policy has gotten us.
Also, what does that status quo mean for physicians who are trying to treat their patients' pain? They're not directly providing the patient with MJ, but because MJ is a schedule 1 narcotic, I believe any health care provider who prescribes its use will be monitored. Like any time someone purchases JD Salinger's Catcher in the Rye at a bookstore, somewhere there's a little beep that goes off and adds a hash mark next to someone's name. The same is true, I believe, for physicians who prescribe narcotic painkillers. Can the feds prosecute a physician who has exhausted all other avenues of pain management who then resorts to prescribing marijuana?
Good question, Mike. Analagously, Ashcroft has already tried prosecuting physicians who prescribe lethal doses of medication to patients under Oregon's Death With Dignity Act with a violation of the Controlled Substances Act, more or less equating family physicians with drug traffikers. The Ninth Circuit Court of Appeals held in favor of Oregon in this instance, but it will be interesting to see what SCOTUS does in October when they hear this case. In light of this week's ruling, it could be bad for Oregon (the Ashcroft argument will be that for Oregon to pass a law requiring an exemption from the DEA regulations would be an intrusion by the state of Oregon on the federal government's police power). I'm not holding my breath for the Rehnquist court (despite Wm's ailing health) to take the compassionate tack here.
Well, obviously physicians have too much power. Good thing we have checks and balances to limit the decision-making of people who have dedicated their livelihood to patient care. Things like, oh, law enforcement as you mention, and now the Christian right taking jobs as pharmacists so they can directly contradict doctor's prescriptions.
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