The Medical Marihuana Referenda Movement in America: Federalism Implications

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Mr. Chairman, distinguished members of the subcommittee:

My name is Roger Pilon. I am a senior fellow at the CatoInstitute and the director of Cato's Center for ConstitutionalStudies.

I want to thank you Mr. Chairman for inviting me to testify onthe medical marihuana movement in America and on the implicationsof that movement for the equally robust federalism movement. Bothmovements, I submit, reflect the growing frustration of Americanswith the accumulation of power in Washington. For more than twodecades now the federalism movement has been calling for returningpower to the states and, even more, to the people--which is nothingless than a call for restoring constitutional government in thisnation. The medical marihuana referenda movement is a small part ofthat larger effort, but it brings to the fore the hypocrisy ofthose who invoke federalism selectively for their own politicalpurposes.

Federalism is a neutral principle. It stands for the idea thatall power rests originally with the people, who yield up to theirgovernments only such powers as they in fact yield up, as reflectedin the constitutions of those governments. The Declaration ofIndependence invokes the principle when it says that the purpose ofgovernment is to secure our rights and, toward that end, thatgovernment derives its just powers from the consent of thegoverned. The Constitution invokes the principle, first, in thePreamble, which says that we the people "ordain and establish" theConstitution; second, in the very first sentence of Article I,which states that "all legislative powers herein granted[are] vested in a Congress," implying that not all powers aregranted; third, in the enumeration of those powers, primarily inArticle I, section 8; and fourth, in the final members of the Billof Rights, the Ninth and Tenth Amendments, which state,respectively, that only certain rights are enumerated in theConstitution, the rest having been retained by the people; and, bycontrast, that the powers delegated to the federal government areits only powers, the rest having been reserved to the states or thepeople.

In sum, through our Constitution, we established a nationalgovernment of delegated, enumerated, and thus limited powers. Theongoing federalism movement is an effort to return the federalgovernment to its legitimate foundations, an effort to return powerto the states and the people in light of the usurpation of powerthat has taken place largely over the 20th century, but especiallysince the New Deal. One manifestation of that movement is theeffort by citizens, either through their state legislatures orthrough state referenda, to restore their rights to use marihuanafor medical purposes, including their rights to seek medical adviceand direction concerning such use, free from federal governmentinterference. Because federal officials have lately claimed a powerto prohibit the exercise of such rights, we have a loomingconstitutional crisis on this issue.

Before I examine those conflicting claims in greater detail,however, I want to make clear from the outset my own thoughts onthe so-called war on drugs, which has been waged in this nation fornearly two decades and yet shows no signs of either letting up orbeing won, whatever that might mean. I join--in fact, have longbeen a member of--that growing body of people who believe that thewar on drugs is a monumental failure--indeed, a monumentaldisaster, wreaking havoc on lives, communities, and institutionsacross this nation. As Yale Law Professor Steven Duke andCalifornia attorney Albert Gross powerfully argued in their 1993volume entitled America's Longest War, the war on drugs,far from addressing the problem it purports to address, is actuallycriminogenic--it produces crime.

But how could it be otherwise? As has long been noted byeveryone from Nobel laureate Milton Friedman to former secretary ofstate George Shultz, conservative columnist William F. Buckley,Jr., Baltimore Mayor Kurt Schmoke, numerous judges, and manyothers, the incentives we create when we make drugs illegal--theeconomic forces that then come into play--simply guarantee thedisaster we have today. After all, we do not have drive-byshootings over tobacco or alcohol, which are legal, even thoughindividual lives may be destroyed by those drugs. We do not becausedisputes over transactions involving those drugs can be handledthrough our ordinary legal institutions, whereas disputes overillegal drug transactions, involving the vast sums of money thatnecessarily accompany that trade, must be settled outside suchinstitutions--on the street. And the victims, made far morenumerous by the monetary incentives for pushing drugs, areeverywhere--in the streets, the schools, the neighborhoods, theprisons, the morgues. Did we learn nothing from Prohibition? If wecannot keep drugs out of our prisons, and we cannot, what makes usbelieve we can keep them out of the larger society?

But apart from the sheer numbers that accompany the war ondrugs--the crime, the prison population, the tax dollars spent, thecorruption of law enforcement officials and foreigngovernments--there is nothing like a real-life example of livesdestroyed to put the war in perspective. In the May issue ofReason magazine we find such an example, Will Foster, a38-year-old father of three who lives in Tulsa, Oklahoma, andsuffers from rheumatoid arthritis in his back and feet. A five-yearArmy veteran who served as an M.P., Mr. Foster was unable to getrelief from other drugs in a way that left him able to work, so heturned to marihuana, which he grew in an old bomb shelter in hisbasement, concealed from his children to avoid confusing them aboutthe use of drugs.

On December 28, 1995, the Tulsa Police Department's SpecialInvestigative Division, acting on a tip from a "confidentialinformant," knocked on Mr. Foster's door. As his wife was unlockingthe door it "exploded inward" from the force of a police batteringram, knocking Mrs. Foster to the floor, nearly on top of theirfive-year-old daughter, who was screaming "Don't hurt my mommy!"Guns drawn and in plain-clothes, the police held the Fosters forfour hours as they tore the house apart. During the search, oneofficer told Mrs. Foster he would "kick my ass to the north side oftown if I did not tell him what he wanted to hear." The sameofficer later yanked Mr. Foster's cuffed hands straight up behindhis back, threatening to break his arms if he didn't say where the"meth" was. After tearing apart even the 5-year-old's teddy bear,the police found no "meth," but they did find Mr. Foster'smedicine: about 70 plants, many of them seedlings. The Fosters werearrested and jailed for the night.

That was only the beginning of their nightmare, as theReason article goes on to detail, with subsequent arrests,subsequent searches, and subsequent harassment. Hoping to ensurethat one of them would remain free to raise the children, Mrs.Foster decided to accept the prosecutors' offer of misdemeanorcharges in return for her testimony against her sick husband. Andin a shocking example of prosecutorial overreach, the threechildren too were included on the prosecution's witness list. Whathave we come to in this country when people like Mr. Foster areincarcerated for 93 years--the sentence he later received--andtheir families are coerced to testify against them? All he wasseeking, after all, was relief from chronic pain? For that, likecountless other ordinary Americans, he was subjected to the worstabuses of the government's drug-enforcement gestapo.

Compared to such "official" abuse, the abuse of drugs byordinary people simply pales. Of course people abuse drugs, legaland illegal alike. They always have, they always will, no matterhow draconian we make the punishment for doing so. The onlyquestion is what, if anything, we should do about it.

In my view, the abuse of drugs now declared illegal, like theabuse of legal drugs, should be treated as a medical matter, not asa crime. Fortunately, a growing number of Americans are coming tothat view too, as is evidenced by the referenda last fall inCalifornia and Arizona, where the voters of those states authorizedphysicians licensed in the state to recommend the use of medicalmarihuana to seriously ill and terminally ill patients residing inthe state without being subject to civil and criminal penalties.California and Arizona thus join Virginia and Connecticut, whoselegislatures in 1979 and 1981, respectively, enacted similarlegislation.

In response to those referenda, however, the administrationannounced, without any intervening authorization from Congress,that any physician recommending or prescribing medicinal marihuanaunder state law would be prosecuted. In the February 11, 1997,Federal Register the Office of National Drug ControlPolicy announced that federal policy would be as follows: (1)physicians who recommend and prescribe medicinal marihuana topatients in conformity with state law and patients who use suchmarihuana will be prosecuted; (2) physicians who recommend andprescribe medicinal marihuana to patients in conformity with statelaw will be excluded from Medicare and Medicaid; and (3) physicianswho recommend and prescribe medicinal marihuana to patients inconformity with state law will have their scheduled drug DEAregistrations revoked.

The announced federal policy also encourages state and localenforcement officials to arrest and prosecute physicians suspectedof prescribing or recommending medicinal marihuana and to arrestand prosecute patients who use such marihuana. And in what can onlybe described as an act of zealous overkill, especially in light oflast week's IRS hearings in the Senate, the policy also encouragesthe IRS to issue a revenue ruling disallowing any medical deductionfor medical marihuana lawfully obtained under state law.

Clearly, this is a blatant effort by the federal government toimpose a national policy on the people in the states in question,people who have already elected a contrary policy. Federalofficials do not agree with the policy the people have elected;they mean to override it, local rule notwithstanding. That effortcannot be justified under the 14th Amendment, for the states havenot enacted a policy that runs roughshod over the privileges orimmunities of their citizens or denies them due process or equalprotection of the laws. No one in the states is complaining thatthe state government is violating his rights, which might requirefederal intervention. On the contrary, state policy in the statesin question has been changed to recover rights, the rights of thosewho might want to prescribe or use medicinal marihuana.

We come then to the question of what warrant, if any, theremight be for federal intervention. And we start with an elementarypoint of constitutional law, namely, that the Constitution does notestablish a national government of general power; rather, as Inoted at the outset, it establishes a government of enumeratedpowers only. Search as you will through Article I, section 8 of theConstitution, you will find no power to wage a "war on drugs," oranything close to it. There is no federal police power. The policepower--the "Executive Power," as John Locke called it, that each ofus has in the state of nature to secure his own rights--resideswith the individual states--the general governments under oursystem of dual sovereignty. Thus, regulations to secure rights inthe areas of health, safety, and medical practice are the doctrinaland historic province of the states, not the federal government.Indeed, so clear is that point in our constitutional firmament thatwhen we undertook out misguided effort earlier in the century toprohibit the manufacture, sale, and use of another drug, alcohol,we did it through constitutional amendment. So far have we strayedfrom that firmament today, however, that we do not even think itnecessary to ask, "Where does the federal government get itsauthority to prosecute the war on drugs?" We simply assume it hasthe power.

Two years ago, in a not unrelated way, that assumption waschallenged in the Supreme Court of the United States when a youngpublic defender from Texas had the temerity to ask where Congressgot its authority to enact the Gun-Free School Zones Act of 1990.In response, the government claimed that it was found in theCommerce Clause, the power of Congress to regulate "commerce amongthe states." But that power, the majority on the Court said, is nota power to regulate anything and everything, which would make amockery of the doctrine of enumerated powers. Thus in that case,United States v. Lopez, did Chief Justice Rehnquist returnto what he called the "first principles" of our constitutionalorder. For the first time since the New Deal the Court said thatCongress's regulatory power under the Commerce Clause is notunlimited.

The commerce power was meant primarily to enable Congress toensure the free flow of commerce among the states, which under theArticles of Confederation had enacted protectionist measures onbehalf of local merchants and manufacturers facing competition fromout-of-state firms. Faced with a breakdown of free trade, and aclassic prisoners' dilemma, the Framers gave Congress the power toregulate--or "make regular"--commerce among the states. That wasthe basic purpose of the power. And, indeed, in the first greatCommerce Clause case, Gibbons v. Ogden, that was the usemade of it by Chief Justice Marshall.

Since the New Deal, however, and the infamous threat byPresident Roosevelt, when the Court would not give him his way, topack that body with six additional members, the Commerce Clause hasbeen read by the Court as authorizing Congress to regulate anythingthat even "affects" interstate commerce--which in principle iseverything. That reading cannot be right, of course, for it amountsto authorizing a government of general powers under the guise ofregulating commerce and hence to eviscerating the centerpiece ofthe Constitution, the doctrine of enumerated powers. Yet it is,save for the recent and as yet undeveloped Lopez case, thecurrent law.

We come, then, to the absurdity of it all. When Congress wantsto keep guns out of schools--notwithstanding that most statesalready have laws that address that problem--it does so under itsauthority to regulate "commerce" "among" the states. Likewise, whenit wants to keep people like Will Foster from growing marihuana fortheir own medical use, it does so under the guise of regulating"commerce" "among" the states--a power that was granted, remember,to ensure the free flow of goods and services among the states. Therationale will not even pass the straight-face test. Indeed, inperhaps the most infamous Commerce Clause case ever, Wickard v.Filburn (1942), in which an Ohio farmer was fined for growingwheat in excess of his allotment under a statute enacted pursuantto the Commerce Clause, even though the wheat he grew never leftthe farm, the Court reasoned that his act "affected" interstatecommerce because that portion of the wheat that exceeded theallotment was wheat he might have bought on the market. Yet here,the marihuana Mr. Foster grows and uses could not possibly affectinterstate commerce since any such commerce in marihuana isillegal! There simply is no power under the Commerce Clause, orunder any other clause of the Constitution, that allows the federalgovernment to regulate the Will Fosters of this world.

Nor is there a federal power to regulate any local doctor whomight prescribe or monitor Mr. Foster's use of marihuana, for the"commerce" between doctor and patient is entirely intrastate. To besure, the doctor may have received his education in another state,and his bills may be written on paper manufactured out of state;but the use of such irrelevant facts to bootstrap the federalgovernment into a regulatory role is not only a sign ofintellectual bankruptcy--exhibited, unfortunately, by too manycourts--but a sign of moral bankruptcy as well. It is a matter ofsimple intellectual integrity to recognize the Constitution forwhat it is--a plan for limited government. If we want the federalgovernment to exercise more power than it is authorized to exerciseunder our Constitution, there is a legitimate way to bring thatabout. We turn to Article V, where the Framers provided a methodfor amending the Constitution. Otherwise, we live within itslimits, and leave the American people free to plan and live theirown lives.

Roger Pilon

Subcommittee on Crime
Committee on the Judiciary
United States House of Representatives