Currently in the United States, it is the states, not the federal government, that regulate the practice of medicine, although you wouldn’t know it watching our Congress deal with medical marijuana.
“States’ rights isn’t just for racists anymore,” observed Paul Kramer, editor and publisher of the 1960s public affairs satire magazine “The Realist.”
Some of you may already be aware that the federal government does not have the constitutional authority to regulate the practice of medicine, per the 9th and 10th amendments and the 1925 SCOTUS decision Linder v. The United States. So, with 28 states and Washington D.C. having legalized medical cannabis, why or how is it federally illegal? This is because the government is allegedly controlling commerce, using a controversial 1942 decision Wickert v. Filburn as their excuse. Wickert v. Filburn has long been attacked by the far right as infringing on the rights of the states.
Satirist Paul Kramer’s position about states’ rights not just being for racists anymore was confirmed by the dissents in Gonzalez v. Raich by Sandra Day O’Connor, then-Chief Justice Rehnquist and Associate Justice Clarence Thomas. The case in the Supreme Court of the United States (SCOTUS) could have been a landmark trial in affirming a human’s right to use cannabis as a medicine.
Instead, the SCOTUS decision in Gonzalez v. Raich overturned its victory in the 9th Circuit court. The decision enjoined the government from arresting brain cancer patient Angel Raich for growing and using cannabis to treat her symptoms, in California where it is and was legal at the time.
Allegedly, the government attorneys informally told her and her attorneys that they would not go after patients, just growers and dispensaries. The Obama Administration amended this policy to only enforcing federal cannabis in states that were not well regulated (2009’s Ogden Memo).
In 2014 the Rohrbacher-Farr budget amendment was passed allocating no money to enforce federal cannabis laws in states where medicinal cannabis was legal. This budget amendment has been passed in each subsequent year. On June 26, the Senate Appropriations Committee renewed the budget amendment that blocks the Justice Department from undermining state medical marijuana laws. The amendment passed by voice vote, and individual votes were not recorded. Voice votes are normally used for non-controversial issues.
However, the amendment has yet to be included in the final appropriations bill for 2018. Republicans in congress have successfully voted to prevent a vote to renew Rohrbacher-Farr, putting the cannabis industry into a very uncertain place. This is a small victory for anti-cannabis attorney general Jeff Sessions. Sessions’ position is confusing because as an aggressive supporter of states rights, particularly to suppress the rights of African Americans, one would assume that he would support the exercise on states rights. Nevertheless, Sessions personally requested that Congress eliminate this amendment. Apparently, the federal department wanted to prosecute medical marijuana patients.
It is hard to see how a states’ rights supporter such as Sessions can take this position, expanding federal power at the expense of the state, but never be surprised by the lengths a man shrouded in bad ideology would go to protect it.