AG Sessions Seeks Permission to Prosecute Medical Marijuana Cases

Marijuana, “in its natural form, is one of the safest therapeutically active substances known to man.” Those words come not from marijuana advocates, but from an administrative law judge employed by the Drug Enforcement Administration (DEA).

Despite the relative safety of medical marijuana compared to oxycodone and, for that matter, aspirin (people die every year from aspirin overdoses, while no person has ever died from consuming marijuana), the DEA steadfastly refuses to approve marijuana for medical use. The DEA has long classified marijuana as Schedule I drug, a classification that applies to “drugs with no currently accepted medical use and a high potential for abuse.”

The words “currently accepted” should refer to “accepted by the medical community” rather than “accepted by the DEA,” but the DEA has consistently rejected evidence that marijuana is a medically useful drug. State governments obviously disagree. The District of Columbia and 29 states have passed some form of legislation that authorizes the use of marijuana for medical purposes with a physician’s consent.

States that want to allow their citizens to use medical marijuana are at odds with the federal government, which forbids marijuana possession for any purpose. Federal and state governments reached an uneasy truce during the Obama administration, but the Trump administration may be on the verge of declaring a new war against medical marijuana.

Conflicting Marijuana Laws

State laws permitting marijuana use conflict with the federal law that prohibits it. When a federal law has been validly enacted, the Supremacy Clause of the United States Constitution requires courts to enforce the federal law rather than a conflicting state law.

On the other hand, state courts will generally enforce state laws unless a party raises a conflicting federal law in opposition to the state law. During the Obama Administration, the Justice Department uncomfortably agreed to look the other way as long as states did not allow patients to abuse medical marijuana.

The Justice Department arrived at that position after being criticized for its inconsistent approach to medical marijuana. Attorney General Eric Holder assured patients in 2009 that they would not be federally prosecuted if they complied with state law. In 2011, however, the Justice Department launched a crackdown against medical marijuana suppliers in states that, in the Department’s view, did too little to regulate medical marijuana growers and dispensaries.

The Justice Department changed course again in 2013 when it told federal prosecutors to devote their limited resources to important crimes. In its memo, the Justice Department emphasized that marijuana use, while illegal under federal law, is not a high priority, particularly with regard to the use of marijuana by medical patients.

Meanwhile, states (often by referendum) continued to enact medical marijuana laws and, in some cases, permitted the recreational use of marijuana. In 2014, bowing to the will of constituents, Congress passed the Rohrabacher-Farr amendment, prohibiting the Justice Department from using its funds to prevent states from implementing their medical marijuana laws.

By 2016, the medical marijuana movement had gained so much momentum that the Obama administration agreed to allow medical researchers to determine whether marijuana is an effective treatment for symptoms or underlying causes of disease. That research might persuade the federal government that marijuana is medically useful and should not be classified as a Schedule I drug.

Medical Marijuana Research

Most doctors and scientists who have studied marijuana agree that the effects of marijuana consumption can have medical value. Marijuana stimulates appetite and reduces nausea, two useful properties for cancer patients undergoing chemotherapy and patients who suffer from a wasting disease. Some studies suggest that THC (the active chemical ingredient in marijuana) might kill cancer cells or slow the rate of cancer development, but those studies are in their infancy and have not yet produced conclusive results.

Some studies suggest that low doses of marijuana may reduce pain, particularly when it is caused by nerve damage. Marijuana may also improve the symptoms of patients suffering from multiple sclerosis. Marijuana improves glaucoma for a short time after it is ingested, but opinions are mixed as to whether marijuana is helpful or harmful as a long-term treatment for glaucoma.

Studies of THC administered to lab rats suggest that THC reduces blood pressure and may be an effective treatment for hypertension in some patients, but the medical community’s limited opportunity to conduct tests with human subjects makes it difficult to validate those results in a human population.

Medical evidence also suggests that heavy long-term use of marijuana may have harmful effects on brain tissue and mental health, although those conclusions are conflicting when casual users are studied. In any event, many prescription drugs are harmful when used heavily for a long period of time, but they are not classified as Schedule I drugs precisely because they have medical value regardless of their potential for harm or abuse.

Current Justice Department Policy

It is not clear whether the Trump administration will continue to authorize studies concerning the medical efficacy of marijuana. Jeff Sessions, the current Attorney General, recently asked Congress for permission to use Justice Department funds to enforce all aspects of federal drug law, including prosecution of medical marijuana providers and patients.

Sessions, a long-time opponent of marijuana legalization, argued that his request was justified by “an historic drug epidemic and potentially long-term uptick in violent crime.” The “drug epidemic” to which he referred concerns opioids like oxycodone and hydrocodone and, according to some sources, is already receding. In any event, the National Institute on Drug Abuse acknowledges that “preliminary studies have suggested that medical marijuana legalization might be associated with decreased prescription opioid use and overdose deaths.” And the “uptick” in violent crime is localized in a few urban areas. In most of the country, violent crime rates, which have no relationship to medical marijuana laws, have been declining over the course of the last twenty years.

States’ Rights and the New Federal Policy

Advocates of “states’ rights,” as an abstract concept, can be found in both political parties. As a practical matter, whether a voter believes in “states’ rights” often depends on whether the voter approves or disapproves of what the state is trying to do.

Advocates of medical marijuana believe that states should have the power to set their own healthcare policies concerning drug regulation. Colorado’s Gov. John Hickenlooper and Oregon Sen. Ron Wyden both invoked states’ rights as they pushed back against Sessions’ desire to enforce federal marijuana laws in their states. On the other hand, a dwindling number of opponents of medical marijuana argue that federal legislation is required to handle a national problem.

At the moment, the states’ rights argument is prevailing. Whether that will continue to be true may depend on Jeff Sessions’ ability to persuade Congress to restore federal authority to prosecute growers, distributors, and patients in states that legalized medical marijuana. That, in turn, may depend upon the ability of medical marijuana patients to place political pressure on their senators and congressional representatives.

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