Dahlia Lithwick provides a grim partial play-by-play of the oral argument in the medical marijuana case in the Supreme Court. Lawrence Solum at the Legal Theory Blog is even more detailed, and even more depressing.
Solum is not convinced he can predict which way the Court will come down; everyone else, including Lithwick and Marty Lederman at SCOTUSblog seems to think it’s a lay-down for the government.
For the Deputy Solicitor General of the United States to argue, right there in public with his bare face hanging out, that letting people grow their own pot to treat their own ailments would somehow influence the national market in illicit marijuana in a way that makes the drug-dealing problem worse rather than better, is really pretty astonishing. Somehow saying things that are flatly and obviously nonsensical in court never made it into the list of lawyers’ ethical no-nos.
(For Justice Kennedy and Mr. Clements to agree that the result of allowing patients to grow their own would be to lower the illicit market price is a more pardonable error; that is indeed the Econ 101 answer, but it’s wrong as applied to illicit markets, where shrinking volume increases the enforcement risk faced by remaining participants and thus tends to increase price. Barnett, arguing for the marijuana-smokers, says he’s “sure” that the result would be a small reduction in price, certainty being a well-known substitute for accuracy.)
It’s clear that all the talk about “federalism” from the Court’s right wing when the question was whether Congress could keep guns away from schoolyards or make it possible for battered women to sue their batterers in Federal court isn’t going to mean anything if the question is whether genuninely sick people can smoke pot. Steve Breyer, on the other hand, who doesn’t so much defer to the political branches as genuflect before them, suggests that the proponents of medical marijuana ought to submit scientific research to the FDA, as if the National Institute on Drug Abuse hadn’t made scientific research on the medical uses of cannabis impossible by denying access to cannabis for medical research.
On the other hand, while it’s easy to feel compassion for the patients in this case and rage at Paul Clement, standing up in his fancy suit on behalf of the People of the United States, for asking the court to condemn them to painful death for the crime of having a condition treatable by something that’s also a drug of abuse, it’s hard to work up much sympathy for the medical marijuana advocates. who have done their level best to keep this alive as a political/legal issue rather than getting it resolved on a scientific basis. (I’ve ranted about that before.)
At the end of the day, “medical marijuana” is hardly worth all the hot air used up in the argument about it.
The plaintiffs in the current case are pretty obviously getting real benefit from smoking whole cannabis, but in the Netherlands, where buying cannabis is virtually legal, physicians aren’t in fact sending large numbers of patients to coffee shops. It’s quite likely that some important medicines will be developed that bind to the cannabinoid receptors that have now been discovered in the brain. But it’s not very likely that cannabis itself, or even the standardized blend of cannabinoids developed as a sublingual spray under the tradename Sativex by a British outfit (and still awaiting British approval as a pharmaceutical drug) will, itself, turn out to be an important medicine.
“Medical marijuana” is the one drug-policy issue where the dovish position has overwhelming popular support. It’s not surprising that the anti-drug-war movement doesn’t want to give it up. Cases like the current one make fine guerilla theater.
I don’t claim to be a Constitutional-law scholar, but this case seems easy to me. I mean, what part of “supreme law of the land” would the plaintiffs like to have explained to them more slowly? Yes, on an originalist jurisprudence the entire structure of the Controlled Substances Act is unconstitutional, simply because Congress has no general police power and no delegated authority to regulate what intoxicants individual citizens want to consume, but if it’s Constitutional to have a federal criminal law against smoking pot in the first place — a proposition no one is challenging — and that Congress didn’t, and didn’t have to, make an exception for sick people — which the Court decided just a couple of years ago — then it’s hard to see how a state statute can undo a valid federal law.
(0n the other hand: Barnett pointed out in oral argument that if Congressional power under the Commerce Clause allows the government to forbid home pot-growing on the grounds that it influences the national marijuana market, then Congress could also ban home dishwashing as part of a regulatory scheme for the national market in dishwashing liquid. That does indeed seem to be the logical consequence of the government’s position.)
So this is a case where the merits one in run direction and the cases in the other; a good reason to give thanks you aren’t a judge.
(Pete Guither at Drug War Rant has a full range of resources relevant to the case.)
In any case, let’s not confuse this with an important problem in drug policy. There are lots of those — for example, how to reduce the volume of violence in the drug markets, or how to shrink drug consumption among hard-core user-offenders, or how to reduce the number of drug dealers behind bars — but they don’t get much attention.
“Medical marijuana” does. And, shameless media-hound that I am, I will be appearing tonight from 8:00-9:00 p.m. Eastern on a nationally syndicated NPR show (produced at WBUR in Boston) called “On Point.” Actually, I won’t come on until about 8:30; the first half-hour will be one of the plaintiffs and two of the lawyers, one from each side.
Warning: While it’s true that I have a face for radio, I have a voice that was made for blogging.