The majority opinion in the medicinal marijuana case had some not so veiled comments suggesting the policy it upheld was questionable. The same could be said by those in the business of drug policy. For instance, Mark Kleiman, who is no big fan of litigation as a means to reform drug policy, points out that the actual effect of programs like CA on interstate commerce and federal drug laws is probably rather small:
The harder a drug is to make in an illicit lab, the greater the possible contribution to drug abuse of making it licitly available. Methamphetamine is easy to cook from easily-available precursors; heroin is moderately easy to make, but only if you have a supply of opium; oxycodone simply isn't a backyard chemical.
Where diversion is a significant problem, there's a real tradeoff between making life easy for physicians and patients and reducing drug abuse.
In the cannabis case, insofar as the "buyers' clubs" function as convenient retail outlets, they may do a little bit to increase the availability of pot for non-medical use, though of course the places most receptive to the presence of such clubs tend to be the places where strictly illicit cannabis is easiest to obtain. But the ubiquity of the illicit cannabis supply, in both geographic and social space, greatly reduces the impact of making it medically available.
In the fact situation of Ashcroft v. Raich -- production by a patient for personal use -- that impact must surely be entirely trivial. Yes, if such activity were allowed, some patients would grow more than they need and sell the surplus. But it's inconceivable that their contribution, either to production or to retail availability, would be noticeable, let alone significant.
This is constitutionally significant too because if there is only a trivial effect, the federal power is much more questionable. Justice Scalia, for one, saw the law as a "necessary and proper" means to uphold commerce power, not commerce power per se. If the effect is "trivial," how necessary is such a threat to local power?
The majority opinion also cited the hope of the political branches. Salon suggests the decision will help those in Congress putting forth legislation that would at least exempt those programs authorized by state law. Maybe. But, good faith has not been shown, as suggested by Sally Satel, generally a conservative voice in the medical field. But, showing this issue has some strange bedfellows, she noted in a NYT editorial:
RELIEF for medical marijuana patients was snatched away this week. In Gonzales v. Raich, the Supreme Court ruled that such patients will be subject to federal prosecution even if their own state's laws permit use of marijuana. Now, short of Congress legalizing medical marijuana, the only way that its users can avoid stiff financial penalties or jail is if it is turned into a prescription medicine approved by the Food and Drug Administration. Justice Stephen G. Breyer said as much during oral arguments last November with his comment that "medicine by regulation is better than medicine by referendum."*
Fair enough. The problem is that the very agencies integral to facilitating the research and development of medical marijuana have actually been impeding progress.
As Mark Kleiman notes, in reference to other things in the news [watering global warming reports], "Censoring science is a nasty habit, whether the bureaucrats doing the censoring work for the Federal government or a university Institutional Review Board."
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* Of course, the decision was not just about referendums. If a state legislature or health board passed a law to allow this sort of thing, it would still be rejected by the feds. The idea is that only the federal government is allowed to regulate. So, Breyer's quip is too cute by half.
It's also interesting that even the majority in this case suggested how drug laws started out as revenue laws as if federal commerce power doesn't reach prohibition (see Eighteenth Amendment). Or, as Mark Kleiman notes, concern regulation of medicine -- though they are treated as prohibitory.