JURIST Guest Columnists James G. Hodge, Jr., Jennifer Piatt, Sarah Wetter, and Alexandra Hess of the Sandra Day O’Connor College of Law, Arizona State University discuss the recent reversal of long-standing guidance from the Obama Administration on federal marijuana enforcement…

On January 4, 2018, U.S. Attorney General Jeff Sessions issued a Department of Justice (DOJ) Memorandum announcing the immediate rescission of permissive guidance from the Obama Administration on enforcement of federal drug laws governing marijuana. Many predicted this policy reversal since for years Mr. Sessions has expressed his disdain for legalizing marijuana.

President Obama’s prior guidance instructed federal prosecutors to ease back on marijuana-related criminal charges. Instead, they were to focus on large-scale, commercial marijuana production facilities, prevent minors’ access, and curb illegal sales, trafficking, and drugged driving. Congress acquiesced via passage of the Rohrabacher-Blumenauer Amendment, a legislative rider prohibiting DOJ from spending certain funds on marijuana prosecutions for conduct permissible under relevant state law. Mr. Sessions also requested that this rider be removed from future spending bills.

DOJ’s substantial policy shift falls in line with marijuana’s classification as a Schedule I drug since the inception of the federal Controlled Substances Act (CSA) of 1970. For decades the drug has been legally cast as having a high potential for abuse and no accepted medical efficacy. In 2016, the U.S. Drug Enforcement Administration (DEA) denied a petition to reschedule marijuana as a Schedule II drug citing insufficient evidence on safety or medical efficacy.

Beginning with California’s Compassionate Use Act of 1996, nearly 30 states now authorize medicinal (and in some cases recreational) uses of the drug despite major legal challenges. Mr. Sessions’ policy reversal launches a new chapter in the ongoing saga over marijuana, reflecting an intent to return to a bygone era. State and local governments reaping new revenues from the sale and distribution of marijuana are likely disinclined to turn back time. Equally reluctant are marijuana producers, medical practitioners, and patients enjoying widespread medical uses of marijuana (especially for chronic pain).

We explore below the balance at the heart of medical marijuana debates between the health of populations and the prospective rights and interests of producers, practitioners, and users in key U.S. jurisdictions.

Evidentiary Conundrums Underlying Medical Marijuana

No drug may have been politicized more than marijuana in the last half-century. Yet, public perceptions of the one-time “gateway” drug are changing. Recent polls show increasing support for legal medicinal and recreational marijuana use. In 2016, 1 in 8 Americans reported using marijuana regularly; 43% said they had previously tried it; and 85% support medical marijuana despite limited evidence surrounding its utility.

Marijuana’s Schedule I classification is a major barrier to obtaining authorization, funding, and high-quality cannabis for researchers to examine its viable use and impacts. Clinical evidence on the proper conditions, dosage, and potency of marijuana treatments is lacking.

Still, there is a limited evidence base for medical marijuana. The National Academies have recognized that marijuana can alleviate chronic pain by 30% and lessen muscle spasticity in patients with multiple sclerosis. It can reduce chemotherapy-induced nausea in cancer patients. Moderate evidence also supports improvement through marijuana use among patients with sleep disorders. Conversely, it is prescribed for a number of conditions (e.g., glaucoma, post-traumatic stress disorder, epilepsy, cancers, irritable bowel syndrome) for which its efficacy is insufficiently studied or found to be insignificant.

Over-prescribing of marijuana would not be problematic per se except for its known individual and societal health risks. Even a single dose can cause anxiety, impaired movement, and hallucinations. Long-term uses can increase risks of elevated heart rate and blood pressure, substance abuse, and chronic bronchitis. Evidence suggests a 5-fold increased risk for schizophrenia in frequent high-potency users. Pregnant women using marijuana face more than double the risk of stillbirths, and newborns exposed during pregnancy are at higher risk for low birthweight.

Youth marijuana use is linked to cognitive impairment and a loss of IQ. Kids’ unintended ingestion of edible marijuana products resulted in a 34% increase in hospitalizations in Colorado in the 2 years following its legalization. Operating a motor vehicle under the influence of marijuana makes drivers twice as likely to cause a vehicular collision.

Emergence of Medical Marijuana Laws

Passage of California’s Compassionate Use Act in 1996 reflected a major shift in American cannabis policy grounded in medical uses. Over the next 2 decades more than half the states enacted medical marijuana laws with varied provisions.

Several states limit marijuana’s prescription to only a handful of specified conditions (e.g., chronic pain, nausea, seizure disorders, glaucoma). Others like California allow prescriptions for any “chronic or persistent medical symptom” limiting patients’ everyday activities or seriously impairing their health. States differ on whether and how many dispensaries [PDF] are licensed, or if marijuana can be home-cultivated by patients or caregivers. All states enforce marijuana possession (or cultivation) limits, ranging from 1 ounce (AK, MT) to 24 ounces (OR).

Opponents‘ arguments to preclude marijuana’s legalization largely center on the:

• paucity of scientific evidence demonstrating marijuana’s efficacy to treat various conditions;
• existence of FDA-approved drugs to treat conditions supposedly improved by marijuana;
• potential for even healthy adults to be prescribed marijuana; and
• hardships employers may experience in maintaining drug-free workplaces.

These arguments have been advanced to remove medical marijuana initiatives from voting ballots. Even where legalized at the state level, some cities and counties have banned dispensaries or cultivation within their boundaries via zoning and land use provisions.

Looming Legal and Political Objections

Decades of divergent legal approaches among states have complicated national control of marijuana. The specter of renewed federal prosecutions raised by Mr. Sessions could chill or reverse ongoing activities among pro-marijuana states or stymie further jurisdictions from supporting its legalization. As one U.S. Attorney surmised, “certain categories of participants in the state-level marijuana trade [may no longer] be immune from federal prosecution.”

However, the impact of DOJ’s guidance is uncertain given limited prosecutorial resources, interests, and legal or political objections. Several U.S. Attorneys openly suggested they will continue to follow DOJ’s prior guidance. Pennsylvania Governor Tom Wolfe avowed he “would continue to do everything in [his] power to protect Pennsylvania patients” from unwarranted federal prosecutions.

California Lieutenant Governor Gavin Newsom promised to pursue “all legal, legislative and political options to protect” states’ rights. Some localities in California are already taking action. San Francisco and San Diego have begun to erase thousands of misdemeanor convictions for marijuana possession. California Assemblyman Reggie Jones-Sawyer recently revived a stalled state bill seeking to make California a “sanctuary state” for the marijuana industry by refusing to provide certain information to federal agents.

Structural Legal Challenges

Additional legal arguments countering DOJ’s policy play off a favorable landscape regarding federal preemption. The U.S. Supreme Court assumes that regulations within the realm of the state police powers (including drug laws) should not be superseded by federal law unless Congress explicitly intends. CSA’s “preemption disclaimer” [PDF] expressly indicates that federal overrides only apply when a “positive conflict” exists between federal and state laws.

Courts and state attorneys general have broadly interpreted [PDF] this provision to allow states some latitude to regulate medical marijuana issues. California courts, for example, have held that state law conflicts with CSA only where it is impossible to comply with both laws. Under this view, California and other states could reasonably argue that their medical marijuana laws neither require what CSA prohibits nor prohibit what federal law requires. In other words, it is legally possible to comply with both laws. Of course, state court interpretations cannot preclude federal prosecutions.

States may also argue that they are not required to enforce CSA. Under principles of federalism, state officials cannot be “commandeered” to enforce federal law. However, in Gonzales v. Raich, the Supreme Court held that Congress could prohibit local marijuana cultivation and use even where a citizen complied with applicable state law.

Rights-based Arguments Via Constitutional Cohesion

Alternatively, states might consider arguments grounded in rights-based principles consistent with theories of “constitutional cohesion.” Whenever government engages in some restricted vice (e.g., tyranny, malfeasance, oppression, or, in this case, federal overreaching) structural and rights-based principles may present equally viable constitutional objections. From this framework may arise rights-based challenges grounded in the 9th Amendment (retention of rights not specifically enumerated) and Due Process Clause limitations on governmental infringement of fundamental rights [PDF].

To date, courts have declined to find a fundamental right in the possession, use, or cultivation of medical marijuana. Yet, in its 2015 report, the Congressional Research Service intimated how a rights-based argument may prove more successful than structural-based federalism objections.

Increased state support may also lead to reconsideration of medical marijuana use as a fundamental right. On remand from Gonzales v. Raich, the 9th Circuit Court of Appeals recognized that medical marijuana use had gained some legal traction. Still it found no fundamental right to use medical marijuana because legal recognition of that right had not yet reached the point of being fundamental. In 2011, a California district court agreed, noting the difficulty of harmonizing a right with CSA’s conclusion that marijuana lacks medical efficacy.

This argument persists nevertheless as the number of jurisdictions allowing medical marijuana has almost doubled from 2011 to present. In July 2017, several individuals and the Cannabis Cultural Association sued DOJ and Mr. Sessions, among others, alleging that the CSA is unconstitutional to the extent it prohibits possession and use of marijuana. Prominent among the plaintiffs’ claims are constitutional infringements grounded in the 9th Amendment, Due Process Clause, and First Amendment. The suit is currently pending in Manhattan in the District Court for the Southern District of New York.

Unmitigated, non-regulated access to marijuana for medicinal (or other) purposes is clearly not the objective (nor is it proposed even among supportive states). Overly-restrictive measures threatening to prosecute patients, doctors, or others lawfully accessing the drug (at least under state law) is equally untenable. Making progress in a new era in the marijuana debates requires the crafting of responsible drug policies that properly balance consumers’ interest in access and safe use with the public’s health.

James G. Hodge, Jr., JD, LLM, is Professor of Public Health Law and Ethics, and Director, Center for Public Health Law and Policy at the Sandra Day O’Connor College of Law, ASU. Jennifer Piatt, J.D. Candidate 2018, and Alex Hess, J.D. Candidate 2018, are Senior Legal Researchers, Center for Public Health Law and Policy at the Sandra Day O’Connor College of Law, ASU. Sarah Wetter, J.D., is a Research Scholar, Center for Public Health Law and Policy at the Sandra Day O’Connor College of Law, ASU.

Suggested citation: James G. Hodge, Jennifer Piatt, Sarah Wetter, and Alexandra Hess Shifting Legal Paradigms in the Regulation of Medical Marijuana, JURIST – Academic Commentary, Feb. 17, 2018, http://jurist.org/forum/2018/02/Hodge-Piatt-Wetter-Hess-Medical-Marijuana.php