For about two weeks I have intended to respond to Eapen’s comment on my last post in which s/he (?) asked about the relationship between (a) Buford Terrell’s proposed interpretation of the “currently accepted medical use in treatment” scheduling criterion and (b) the US Supreme Court’s decision in Gonzales v Raich, 545 US 1 (2005).

I decided to do a full post instead of trying to put my response into a comment.

This post is an initial treatment of the topic, not a full treatment, because I am still in the process of re-reading the key decision of Gonzales v Oregon, 546 US 243 (2006), which came after the Raich decision and discussed the Controlled Substances Act in depth, specifically the limits of federal authority over the practice of medicine. I am not going to discuss Raich or Oregon in depth here. I hope to do so before too much more time passes.

However, the short version is that I don’t see that Raich is more than marginally relevant to Buford’s proposed interpretation of the “medical use” prong of Schedule I.

To recap, Buford proposes that the “currently accepted medical use in treatment” clause should be interpreted to mean that the DEA can only determine whether cannabis is used medically at the state level and then must react accordingly; the DEA proposes that medical use means FDA approval. I am going to call Buford’s interpretatiYon the “Reality Check” model, since it requires that the DEA check the reality of what is actually happening out and about in the real world. I am going to call the DEA’s interpretation the “Permanent Prohibition” model, since as a practical matter it means that the federal government will not recognize a medical use in the absence of Congressional action to reschedule cannabis – who is going to pay the $800 million to take cannabis through Phase III clinical trials? (Anyone? Anyone?)

The Supreme Court in Raich held that the interstate Commerce Clause of the Constitution supports federal jurisdiction over cannabis which two individuals grew within the State of California for their own use. Plaintiffs Angel Raich and Diane Monson argued that the federal government has no right to interfere with activity that occurs entirely within state lines – without overt connection with commercial activity crossing state lines. This argument relates to two principles: (1) in theory, the federal government may exercise only powers which the Constitution grants to it and (2) the enormous growth of federal regulation and control over all aspects of life rests on the constitutional authorization of Congress to regulate “commerce … among the several states.” Article I, section 8. This clause is the “interstate commerce clause.” The plaintiffs argued that their activities did not implicate interstate commerce and they sought an injunction and judicial declaration (“declaratory judgment”) that the DEA had no legal basis for interfering with their cultivation and use of cannabis – activities that were legal under state law. They did not challenge the Controlled Substances Act as a whole, nor did they challenge the validity of the Schedule I classification of cannabis – so there was no overt discussion of whether the DEA validly determined that there is no currently accepted medical use in treatment.

This argument was a long shot since it ran directly counter to an early Supreme Court decision called Wickard v Filburn. I’m not going to discuss the rationale here; suffice it to say that the majority opinion in Raich rejected the lower court’s decision that the Wickard decision did not apply to the entirely intrastate cultivation and use of cannabis for medical purposes. The consequence was a holding by the Court that Raich and Monson’s activities did affect interstate commerce and therefore agencies of the federal government had a solid constitutional basis for interfering with those activities.

Logic chains

During law school I read that all of law is a syllogism. If a = b and b = c, then a= c. For example: 1. Tom is a cat. 2. Cats chase mice. 3. Therefore, Tom chases mice. (This is the same as my explanation in the sidebar as to why cannabis is a psychedelic for purposes of legal analysis.) I am going to call this reasoning a “logic chain.”

The relevant underlying premise of the Raich decision is that Congress can regulate all activity concerning controlled substances, even activity that takes place entirely wihin state lines (“intrastate activity”) because, in the hallucinatory world of legal reasoning, such activity is presumed to affect interstate commerce. If the substance is a Schedule I substance then that regulation takes the form of prohibition.

The disconnect between Raich and the Reality Check theory should now be apparent. The Reality Check v. Permanent Prohibition discussion takes place at an earlier stage of the logic chain than does the interstate commerce question. The Reality Check theory discusses what substances should be in what schedule. In particular, it proposes that the federal government’s position as to whether there is a currently accepted medical use in treatment is a CONCLUSION based on state law, since regulating the practice of medicine is a matter which the Supreme Court has already held is reserved to the states. In other words, the choice between Reality Check and Permanent Prohibition – i.e. where the DEA should put a particular substance – takes place at an earlier stage of the logic chain, separate and apart from the question of whether the federal government can validly interfere with Angel Raich’s cultivation of her own cannabis. Under the Raich holding, the DEA can regulate Angel Raich’s cannabis garden no matter whether cannabis is in Schedule II, III, IV or V. (In fact, precisely this reasoning appears in Raich in Section IV: “Thus, even if respondents are correct that marijuana does have accepted medical uses and thus should be redesignated as a lesser schedule drug, the CSA would still impose controls beyond what is required by California law.”)

There is one place in the Raich decision that is plausibly relevant to the medical use question. The Court of Appeals for the Ninth Circuit had distinguished the personal use of cannabis from the facts of the Wickard case by saying that “intrastate, non-commercial cultivation, possession and use of cannabis for personal medical purposes on the advice of a physician and in accordance with state law” is somehow distinct from the drug trafficking which the Controlled Substances Act was intended to reach. In the course of rejecting this distinction, the Supreme Court noted that Congress expressly found that the drug has no acceptable medical uses. That statement is remarkably inaccurate. The Congress cannot find that cannabis has no acceptable medical uses; it may have found at the time that there were no CURRENTLY accepted medical uses in treatment – but that is not the same as determining that there can never be a use for cannabis in medicine. (In fairness to the majority opinionholders, I don’t believe that is actually what the justices meant to express. In the beginning of the decision, at length in footnote 37, and in the concluding paragraph, Justice Stevens indicated his sympathy for the plaintiffs and his skepticism about Schedule I classification. Footnote 37 begins: “We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses of marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be in Schedule I.”) One element of the Controlled Substances Act is the ability to move substances in the schedules based on evolving knowledge. If a quarter of the states pass laws allowing for medical use of cannabis, then it is plausible that the states are currently accepting a medical use of cannabis in treatment. It is no longer the US Congress that is keeping cannabis in Schedule I; it is the DEA. It is only that the Congress has so far failed to act to rationalize drug control.

The next step is to review the decision in Gonzales v Oregon, which discusses at length the limitations on the federal government’s authority to regulate the practice of medicine.