Higher Law: Will States' Rights Go Up in Smoke?

Article excerpt

THINGS SEEMED to be going very wrong for the state medical-marijuana movement. Two days after Barack Obama was sworn in, federal agents began a series of raids on licensed cannabis dispensaries and growers in California and Colorado--something Obama had suggested would not happen in his presidency.

Activists remembered that in 1999 candidate George W. Bush, when asked about state medical-marijuana efforts, declared, "I believe each state can choose that decision as they so choose." He went on to crack down on doctors, dispensaries, farmers, and terminally ill patients who use marijuana according to their states' laws.

Advocates felt fooled again. Just a year ago, campaigner Obama told the Mail Tribune in Oregon, "I think the basic concept that using medical marijuana in the same way, with the same controls as other drugs prescribed by doctors, I think that's entirely appropriate. I would not punish doctors if it's prescribed in a way that is appropriate; that may require some changes in federal law." In August 2007, he was asked a similar question on the trail in Nashua, New Hampshire. "I would not have the Justice Department prosecuting and raiding medical marijuana users," he said. "It's not a good use of our resources."

Indeed, more states have legalized medical marijuana in the last 13 years than at any time since the drug was outlawed in 1937. Even as Obama won the election, Michigan became the 13th state--the first in the Midwest--to pass a new policy. The measure won with 63 percent of the vote.

So is Obama a fair-weather friend? After a brief but carefully tuned White House statement on Feb. 9, advocates believe that the administration may have been just as surprised by the raids as they were. It is thought that the DEA might have been tending to some last-minute business before Obama fleshed out his new agenda, which includes a replacement for Michele Leonhart, a Bush appointee still serving as DEA acting administrator. "The President believes that federal resources should not be used to circumvent state laws, and as he continues to appoint senior leadership to fill out the ranks of the federal government, he expects them to review their policies with that in mind," said White House spokesman Nick Shapiro.

Bruce Mirken of the Marijuana Policy Project, which in 2007 hired Libertarian Bob Barr as a lobbyist, says that his group is watching with "great interest how this unfolds." "Given that the White House has reaffirmed the campaign promises he made," Mirken says, "we are very hopeful."

He's no Pollyanna, however. Advocates see veteran "drug warriors" like White House Chief of Staff Rahm Emanuel, new Attorney General Eric Holder, and Vice President Joe Biden at the levers of power and know federal drug policy could turn on them in an instant. But if Obama's first instincts for limited federal power over pot prevail, he could set in motion a series of unprecedented local and state reforms and perhaps give Congress enough cover to change federal law.

"This is wonderful news--if it happens. It means the states will be able to make public-health decisions for people who are suffering or dying and for whom marijuana is a palliative treatment," says Randy Barnett, a constitutional law professor at Georgetown who unsuccessfully argued for the plaintiffs in Gonzales v. Raich in 2005.

In that landmark case, the Supreme Court affirmed, in a 6-3 decision, that the Constitution's commerce clause permitted Congress, via the federal Controlled Substances Act, to prohibit the use of marijuana for medicinal purposes. "It was a huge blow," says Barnett. The three dissenters--then Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas--balked at the majority for preventing "an express choice by some states, concerned for the lives and liberties of their people, to regulate medical marijuana differently."

The two plaintiffs, Angel Raich, a brain-cancer patient, and Diane Munson, who suffered from chronic back pain following a car accident, had been arrested for cultivating and using--though not selling--marijuana under California law. …