Pubdate: Tue, 27 Apr 2004 Source: Rutland Herald (VT) Copyright: 2004 Rutland Herald Contact: http://rutlandherald.nybor.com/ Details: http://www.mapinc.org/media/892 Author: Nancy Lynch Cited: Wo/Men's Alliance for Medical Marijuana ( www.wamm.org ) Cited: Drug Enforcement Administration ( www.dea.gov ) Bookmark: http://www.mapinc.org/find?230 (Santa Cruz v. Ashcroft) Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal) FEDERAL COURTS PROTECT MEDICAL MARIJUANA On April 21, U.S. District Court Judge Jeremy Fogel issued a preliminary injunction barring the federal government from raiding or prosecuting a medical marijuana cooperative in California. This historic action is just the latest in a series of decisions in which federal courts have shown great skepticism toward federal attacks on state medical marijuana laws. These federal court actions have particular significance here in Vermont, where officials, including Gov. James Douglas, have claimed that federal hostility prevents the state from protecting medical marijuana patients from arrest. Judge Fogel's injunction, protecting the patient-run Wo/Men's Alliance for Medical Marijuana (WAMM), is only one of several court decisions suggesting such fears are exaggerated. Vermont can indeed act to protect patients. This may come as a surprise. We so often hear the claim that "federal law trumps state law" that many just assume it to be true. But that is not how our Constitution was written, as federal courts have acknowledged. In fact, the Constitution was written to limit the powers of the federal government and to give states considerable autonomy in running their own affairs - a point made clear in the Ninth and 10th Amendments. The federal government has attempted to undermine state medical marijuana laws by abusing one power it does have - the power to regulate interstate commerce. "Interstate commerce" means, as you might expect, commerce between states - that is, business or commercial activity that crosses state lines, such as when a car made in Detroit is sold in Vermont. Amazingly, the federal government has claimed the power under this "commerce clause" to arrest patients and their caregivers growing and using medical marijuana completely within a state - for example, Californians using California water, California soil, California seeds, California equipment, and conducting no commercial activity whatsoever. That doctrine was rejected by the Ninth U.S. Circuit Court of Appeals in the case known as Raich v. Ashcroft, decided Dec. 16, 2003, setting the precedent that Judge Fogel followed in protecting WAMM. Though Raich could still be appealed, it was not the first time the courts have blocked the federal government from attacking state medical marijuana laws. Conant v. Walters arose from federal attempts to punish physicians who recommend medical marijuana to patients. Because federal law does bar doctors from writing marijuana prescriptions, the right of physicians to recommend marijuana is crucial to these state laws. When the government threatened to go after doctors, a group of physicians and patients sued, arguing that doctor-patient communications are protected by the First Amendment to the Constitution. The Ninth Circuit ruled that the government cannot dictate to doctors what advice they can give their patients, and the Bush administration appealed to the U.S. Supreme Court. Last October, the Supreme Court refused to hear that appeal, and the ruling protecting doctors and patients stands. Even when forced by the wording of federal law to punish medical marijuana patients and providers, federal judges have expressed dismay and refused to impose harsh sentences. In an important but little-publicized case last year, U.S. District Judge Howard Matz sentenced medical marijuana defendant Scott Imler to only probation, declaring in court, "To allocate the resources of the Drug Enforcement Agency and the U.S. attorney's office in this case baffles me, disturbs me." While the legal skirmishes around medical marijuana are probably not over - the zealots in the Bush administration are nothing if not persistent, the bottom line is simple: States have the right to enact laws protecting medical marijuana patients, and the federal government has no right to undo those laws and an increasingly limited ability to interfere with them. Federal hostility is simply no excuse for inaction on medical marijuana. Vermont can and should stop using state law to arrest cancer and AIDS patients for simply trying to relieve some of their suffering. Nancy Lynch is the statewide organizer for the Vermont Marijuana Policy Project. - --- MAP posted-by: Josh