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Confessions Of A Pro-Cannabis Republican: Why The Judiciary Will Not Bring Reform

With the executive branch, at best, maintaining the status quo on marijuana, and Congress remaining as ineffectual as ever, many wonder if the federal judiciary will be where marijuana reform comes from.

That possibility has come to the forefront after Alex Bortell and a group of medical marijuana patients recently filed a lawsuit seeking to have the Controlled Substances Act declared unconstitutional on 5 grounds: infringing on free speech under the 1st Amendment; violating the 5th Amendment's Due Process Clause; interfering with states' rights under the 10th Amendment; violating the Commerce Clause of Article 1 of the Constitution; and impeding the plaintiffs' right to travel.

The Rational Argument Against Irrational Precedent

Ms. Bortell's argument essentially lays out the facts that many marijuana activists know by heart. Here's a quick recap: President Nixon used the Controlled Substances Act of 1970 as a means of suppressing minorities and political opponents. Marijuana is a safe, low-risk drug which has never killed anyone. The federal government knows marijuana is safe, and effective as medicine. Yet medical marijuana patients are denied their right to travel, and quality of life by federal prohibition.

Unfortunately, many also don’t know that these same arguments have been made many times before, and every time the Supreme Court upholds the Controlled Substance Act.

On June 6th, 2005, The Supreme Court rendered its judgment in Gonzales v. Raich with a 6 – 3 decision to uphold the Controlled Substance Act against the same Commerce Clause challenge that Ms. Bortell is making now. The justices came to that decision due to a longstanding Supreme Court precedent from the 1942 case of Wickard v. Filburn that allows the federal government to regulate essentially all commerce that occurs within the United States.

And while many are aware of the racist and xenophobic roots of marijuana prohibition, the Supreme Court has time and time again denied challenges to the Controlled Substances Act on the grounds that it violates the Due Process Clause of the 5th Amendment. Per Supreme Court precedent, laws which lack a rational relationship to a legitimate government interest are a violation of due process. However, the only instance where the Court has not upheld rational review was the 1971 case of Reed v. Reed where the Court struck down a law as unconstitutional for lacking a rational basis.

The Supreme Court has also long rejected 10th Amendment claims against the Controlled Substances Act. Multiple lawsuits have claimed that the 10th Amendment allows states to regulate marijuana since that power was not specifically given to the federal government. Unfortunately, as established in the Wickard case, the federal government can regulate all commerce both legal and illegal. Thus, the power to regulate marijuana has not been delegated to the states as per the 10th Amendment.

And while it is widely held that the government cannot regulate the free speech of a doctor to recommend medicine to a patient (thanks to Conant v. Walters), the federal government has a legitimate interest in preventing doctors from prescribing drugs which are deemed unsafe. Thus 1st Amendment claims have always failed as well.

That leaves the fundamental right to travel, which is a liberty defended by the 5th Amendment. Liberty rights are not enumerated rights but rather rights that the Supreme Court has created over the years. The right to travel is a strong liberty right, but is primarily used to strike down state laws that have durational requirements for residency or outright bans on citizens of one state entering another.

However, the courts have not addressed whether the prohibition of medicine like medical marijuana is unconstitutional because it creates a de facto travel ban. This argument would require the federal government to recognize marijuana as a medicine, which they currently do not. Thus, the argument hinges on a 5th Amendment Due Process claim being successful.

Arguing Legal Change

While many, if not all of Bortell's arguments have been tried many times before, there is a reason to see hope in her fight.

The last major challenge to the Controlled Substance act was in 2005, when only 14 states allowed medical marijuana. Now 29 states have access to functioning medical marijuana programs, 8 states have recreational marijuana, and 45 states allow some form of medicinal cannabis use. In other words, the lawsuit today has more case studies, more precedents and more pressure behind it then prior challenges to the Controlled Substances Act.

It's also not unheard of for the Supreme Court to overturn sweeping federal drug laws. In 1969, in the case of Leary v. United States, the Supreme Court struck down the Marijuana Tax Act of 1937, which essentially outlawed marijuana. Unfortunately, today's Supreme Court is not as progressive as the Court of 1969.

The judiciary is supposed to be where rational, logical arguments prevail. Federal Courts have long been the bulwark of constitutional protection. However, with the Controlled Substances Act, the judiciary has been nothing more than a rubber stamp to the enforcement of racist, and illogical laws. With the judiciary failing to examine the reason for the war on drugs, Congress ineffective, unwieldy, and uninterested in reforming the law, and the executive branch failing to change the status quo, it appears that federal reform is still a long way off.

A Glimmer of Hope

Sometimes the unexpected happens. The Alex Bortell lawsuit recently survived the state’s motion to dismiss. The state had argued that all legal issues raised in the lawsuit had been decided on as a matter of law by prior federal rulings.

Legally speaking, they are mostly correct. The majority of the Bortell lawsuit is based on issues that have already been decided numerous times. However, the federal judge did not grant the state’s motion and has set the case for trial.

This is a critical first step, as regardless of the outcome of the case, a federal appeal is sure to follow. This critical first step gives hope that the case may one day end up at the Supreme Court and perhaps overturn cannabis prohibition like Leary v. United States did for a brief moment in 1969. But we shouldn't hold our breath waiting for the judiciary to bring lasting marijuana reform.

Hunter J. White is the Communications Director of the national Republican political organization, Republicans Against Marijuana Prohibition, or RAMP, a Non-Profit 501-c3 organization dedicated to the complete repeal of marijuana prohibition in all its forms. In this series of articles, Hunter shares the challenges, experiences, and insights that he has gained from years of working to bring marijuana policy reform to the Republican Party. 

banner: Matt Wade (Flickr)


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