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 Cato Institute and the director of Cato’s Center for Constitutional Studies.

I want to thank you Mr. Chairman for inviting me to testify on the medical marihuana movement in America and on the implications of that movement for the equally robust federalism movement. Both movements, I submit, reflect the growing frustration of Americans with the accumulation of power in Washington. For more than two decades now the federalism movement has been calling for returning power to the states and, even more, to the people–which is nothing less than a call for restoring constitutional government in this nation. The medical marihuana referenda movement is a small part of that larger effort, but it brings to the fore the hypocrisy of those who invoke federalism selectively for their own political purposes.

Federalism is a neutral principle. It stands for the idea that all power rests originally with the people, who yield up to their governments only such powers as they in fact yield up, as reflected in the constitutions of those governments. The Declaration of Independence invokes the principle when it says that the purpose of government is to secure our rights and, toward that end, that government derives its just powers from the consent of the governed. The Constitution invokes the principle, first, in the Preamble, which says that we the people “ordain and establish” the Constitution; 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 are granted; third, in the enumeration of those powers, primarily in Article I, section 8; and fourth, in the final members of the Bill of Rights, the Ninth and Tenth Amendments, which state, respectively, that only certain rights are enumerated in the Constitution, the rest having been retained by the people; and, by contrast, that the powers delegated to the federal government are its only powers, the rest having been reserved to the states or the people.

In sum, through our Constitution, we established a national government of delegated, enumerated, and thus limited powers. The ongoing federalism movement is an effort to return the federal government to its legitimate foundations, an effort to return power to the states and the people in light of the usurpation of power that has taken place largely over the 20th century, but especially since the New Deal. One manifestation of that movement is the effort by citizens, either through their state legislatures or through state referenda, to restore their rights to use marihuana for medical purposes, including their rights to seek medical advice and direction concerning such use, free from federal government interference. Because federal officials have lately claimed a power to prohibit the exercise of such rights, we have a looming constitutional 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 on the so‐​called war on drugs, which has been waged in this nation for nearly two decades and yet shows no signs of either letting up or being won, whatever that might mean. I join–in fact, have long been a member of–that growing body of people who believe that the war on drugs is a monumental failure–indeed, a monumental disaster, wreaking havoc on lives, communities, and institutions across this nation. As Yale Law Professor Steven Duke and California attorney Albert Gross powerfully argued in their 1993 volume entitled America’s Longest War, the war on drugs, far from addressing the problem it purports to address, is actually criminogenic–it produces crime.

But how could it be otherwise? As has long been noted by everyone from Nobel laureate Milton Friedman to former secretary of state George Shultz, conservative columnist William F. Buckley, Jr., Baltimore Mayor Kurt Schmoke, numerous judges, and many others, the incentives we create when we make drugs illegal–the economic forces that then come into play–simply guarantee the disaster we have today. After all, we do not have drive‐​by shootings over tobacco or alcohol, which are legal, even though individual lives may be destroyed by those drugs. We do not because disputes over transactions involving those drugs can be handled through our ordinary legal institutions, whereas disputes over illegal drug transactions, involving the vast sums of money that necessarily accompany that trade, must be settled outside such institutions–on the street. And the victims, made far more numerous by the monetary incentives for pushing drugs, are everywhere–in the streets, the schools, the neighborhoods, the prisons, the morgues. Did we learn nothing from Prohibition? If we cannot keep drugs out of our prisons, and we cannot, what makes us believe we can keep them out of the larger society?

But apart from the sheer numbers that accompany the war on drugs–the crime, the prison population, the tax dollars spent, the corruption of law enforcement officials and foreign governments–there is nothing like a real‐​life example of lives destroyed to put the war in perspective. In the May issue of Reason magazine we find such an example, Will Foster, a 38‐​year‐​old father of three who lives in Tulsa, Oklahoma, and suffers from rheumatoid arthritis in his back and feet. A five‐​year Army veteran who served as an M.P., Mr. Foster was unable to get relief from other drugs in a way that left him able to work, so he turned to marihuana, which he grew in an old bomb shelter in his basement, concealed from his children to avoid confusing them about the use of drugs.

On December 28, 1995, the Tulsa Police Department’s Special Investigative Division, acting on a tip from a “confidential informant,” knocked on Mr. Foster’s door. As his wife was unlocking the door it “exploded inward” from the force of a police battering ram, knocking Mrs. Foster to the floor, nearly on top of their five‐​year‐​old daughter, who was screaming “Don’t hurt my mommy!” Guns drawn and in plain‐​clothes, the police held the Fosters for four hours as they tore the house apart. During the search, one officer told Mrs. Foster he would “kick my ass to the north side of town if I did not tell him what he wanted to hear.” The same officer later yanked Mr. Foster’s cuffed hands straight up behind his 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’s medicine: about 70 plants, many of them seedlings. The Fosters were arrested and jailed for the night.

That was only the beginning of their nightmare, as the Reason article goes on to detail, with subsequent arrests, subsequent searches, and subsequent harassment. Hoping to ensure that one of them would remain free to raise the children, Mrs. Foster decided to accept the prosecutors’ offer of misdemeanor charges in return for her testimony against her sick husband. And in a shocking example of prosecutorial overreach, the three children too were included on the prosecution’s witness list. What have we come to in this country when people like Mr. Foster are incarcerated for 93 years–the sentence he later received–and their families are coerced to testify against them? All he was seeking, after all, was relief from chronic pain? For that, like countless other ordinary Americans, he was subjected to the worst abuses of the government’s drug‐​enforcement gestapo.

Compared to such “official” abuse, the abuse of drugs by ordinary people simply pales. Of course people abuse drugs, legal and illegal alike. They always have, they always will, no matter how draconian we make the punishment for doing so. The only question is what, if anything, we should do about it.

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

In response to those referenda, however, the administration announced, without any intervening authorization from Congress, that any physician recommending or prescribing medicinal marihuana under state law would be prosecuted. In the February 11, 1997, Federal Register the Office of National Drug Control Policy announced that federal policy would be as follows: (1) physicians who recommend and prescribe medicinal marihuana to patients in conformity with state law and patients who use such marihuana will be prosecuted; (2) physicians who recommend and prescribe medicinal marihuana to patients in conformity with state law will be excluded from Medicare and Medicaid; and (3) physicians who recommend and prescribe medicinal marihuana to patients in conformity with state law will have their scheduled drug DEA registrations revoked.

The announced federal policy also encourages state and local enforcement officials to arrest and prosecute physicians suspected of prescribing or recommending medicinal marihuana and to arrest and prosecute patients who use such marihuana. And in what can only be described as an act of zealous overkill, especially in light of last week’s IRS hearings in the Senate, the policy also encourages the IRS to issue a revenue ruling disallowing any medical deduction for medical marihuana lawfully obtained under state law.

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

We come then to the question of what warrant, if any, there might be for federal intervention. And we start with an elementary point of constitutional law, namely, that the Constitution does not establish a national government of general power; rather, as I noted at the outset, it establishes a government of enumerated powers only. Search as you will through Article I, section 8 of the Constitution, you will find no power to wage a “war on drugs,” or anything close to it. There is no federal police power. The police power–the “Executive Power,” as John Locke called it, that each of us has in the state of nature to secure his own rights–resides with the individual states–the general governments under our system of dual sovereignty. Thus, regulations to secure rights in the areas of health, safety, and medical practice are the doctrinal and historic province of the states, not the federal government. Indeed, so clear is that point in our constitutional firmament that when we undertook out misguided effort earlier in the century to prohibit the manufacture, sale, and use of another drug, alcohol, we did it through constitutional amendment. So far have we strayed from that firmament today, however, that we do not even think it necessary to ask, “Where does the federal government get its authority to prosecute the war on drugs?” We simply assume it has the power.

Two years ago, in a not unrelated way, that assumption was challenged in the Supreme Court of the United States when a young public defender from Texas had the temerity to ask where Congress got its authority to enact the Gun‐​Free School Zones Act of 1990. In response, the government claimed that it was found in the Commerce Clause, the power of Congress to regulate “commerce among the states.” But that power, the majority on the Court said, is not a power to regulate anything and everything, which would make a mockery of the doctrine of enumerated powers. Thus in that case, United States v. Lopez, did Chief Justice Rehnquist return to what he called the “first principles” of our constitutional order. For the first time since the New Deal the Court said that Congress’s regulatory power under the Commerce Clause is not unlimited.

The commerce power was meant primarily to enable Congress to ensure the free flow of commerce among the states, which under the Articles of Confederation had enacted protectionist measures on behalf of local merchants and manufacturers facing competition from out‐​of‐​state firms. Faced with a breakdown of free trade, and a classic prisoners’ dilemma, the Framers gave Congress the power to regulate–or “make regular”–commerce among the states. That was the basic purpose of the power. And, indeed, in the first great Commerce Clause case, Gibbons v. Ogden, that was the use made of it by Chief Justice Marshall.

Since the New Deal, however, and the infamous threat by President Roosevelt, when the Court would not give him his way, to pack that body with six additional members, the Commerce Clause has been read by the Court as authorizing Congress to regulate anything that even “affects” interstate commerce–which in principle is everything. That reading cannot be right, of course, for it amounts to authorizing a government of general powers under the guise of regulating commerce and hence to eviscerating the centerpiece of the Constitution, the doctrine of enumerated powers. Yet it is, save for the recent and as yet undeveloped Lopez case, the current law.

We come, then, to the absurdity of it all. When Congress wants to keep guns out of schools–notwithstanding that most states already have laws that address that problem–it does so under its authority to regulate “commerce” “among” the states. Likewise, when it wants to keep people like Will Foster from growing marihuana for their 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. The rationale will not even pass the straight‐​face test. Indeed, in perhaps the most infamous Commerce Clause case ever, Wickard v. Filburn (1942), in which an Ohio farmer was fined for growing wheat in excess of his allotment under a statute enacted pursuant to the Commerce Clause, even though the wheat he grew never left the farm, the Court reasoned that his act “affected” interstate commerce because that portion of the wheat that exceeded the allotment was wheat he might have bought on the market. Yet here, the marihuana Mr. Foster grows and uses could not possibly affect interstate commerce since any such commerce in marihuana is illegal! There simply is no power under the Commerce Clause, or under any other clause of the Constitution, that allows the federal government to regulate the Will Fosters of this world.

Nor is there a federal power to regulate any local doctor who might prescribe or monitor Mr. Foster’s use of marihuana, for the “commerce” between doctor and patient is entirely intrastate. To be sure, 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 federal government into a regulatory role is not only a sign of intellectual bankruptcy–exhibited, unfortunately, by too many courts–but a sign of moral bankruptcy as well. It is a matter of simple intellectual integrity to recognize the Constitution for what it is–a plan for limited government. If we want the federal government to exercise more power than it is authorized to exercise under our Constitution, there is a legitimate way to bring that about. We turn to Article V, where the Framers provided a method for amending the Constitution. Otherwise, we live within its limits, and leave the American people free to plan and live their own lives.

Roger Pilon

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