Constitutional Law
Nov. 22, 2002
Medipot Haze
Forum Column - By Erwin Chemerinsky - The hypocrisy of conservatives when it comes to federalism is well illustrated by the Justice Department's actions toward states that have attempted to legalize the medical use of marijuana. Conservatives repeatedly preach the importance of states' rights and, in the last decade, the conservative justices on the Supreme Court have dramatically narrowed Congress' powers and expanded state government sovereign immunity based on federalism.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Forum Column
By Erwin Chemerinsky
The hypocrisy of conservatives when it comes to federalism is well illustrated by the Justice Department's actions toward states that have attempted to legalize the medical use of marijuana. Conservatives repeatedly preach the importance of states' rights and, in the last decade, the conservative justices on the Supreme Court have dramatically narrowed Congress' powers and expanded state government sovereign immunity based on federalism.
Logically, one would expect that conservatives would express the need to defer to choices by state legislatures and state voters through the initiative process to allow medical use of marijuana. But that has not been their position at all; quite the contrary, the Bush administration and Attorney General John Ashcroft very aggressively have sought to prevent any implementation of medical marijuana laws.
One of the more outrageous steps taken by the federal government has been to threaten that it will revoke a physician's license to prescribe controlled substances if the doctor recommends medical use of marijuana. In 1996, California and Arizona voters approved initiatives that decriminalized the medical use of marijuana and immunized physicians from prosecution under state law for the "recommendation or approval" of using marijuana for medical purposes.
In response, the federal government enacted a regulation - and this was during the Clinton administration - declaring that a doctor's "action of recommending or prescribing Schedule I controlled substances [which includes marijuana] is not consistent with the 'public interest'" and that such action would lead to revocation of the physician's registration to prescribe controlled substances.
In Conant v. Walters, 2002 WL 31415494 (9th Cir. Oct. 29, 2002), the 9th U.S. Circuit Court of Appeals declared unconstitutional this federal policy of investigating doctors who recommend medical use of marijuana and threatening them with license revocation for doing so.
In an opinion written by Chief Judge Mary Schroeder, the 9th Circuit held that it violated the First Amendment for the government to investigate or initiate proceedings against a doctor simply for recommending the use of marijuana. The court noted that there are many reasons why a doctor might legitimately make such a recommendation, including for a patient to participate in a federally approved experimental marijuana-therapy program or for a patient to petition the government to change the law.
The opinion is an important victory for the free speech rights of professionals and may have implications well beyond the medical marijuana context. The 9th Circuit's decision rests on two important principles.
First, a doctor's recommending the use of marijuana for medical purposes is not itself a crime. The Justice Department contended that a doctor who makes such a recommendation is aiding or abetting a crime and part of a conspiracy to violate the law. The Court of Appeals rightly rejected this concern and stated: "A doctor's anticipation of patient conduct, however, does not translate into aiding and abetting, or conspiracy. A doctor would aid and abet by acting with the specific intent to provide a patient with the means to acquire marijuana. Similarly, a conspiracy would require that a doctor have knowledge that a patient intends to acquire marijuana, agree to help the patient acquire marijuana, and intend to help a patient acquire marijuana."
This is important in protecting the right of all professionals - doctors, lawyers, accountants, and others - to discuss all options with patients and clients. The 9th Circuit opinion is clear and emphatic that discussing violation of the law, and even recommending it, does not constitute aiding or abetting or conspiracy to violate the law.
The second key principle found in the 9th Circuit's opinion is that the First Amendment protects speech between a doctor and a patient. The court explained: "The government policy does, however, strike at core First Amendment interests of doctors and patients. An integral component of the practice of medicine is the communication between a doctor and a patient. Physicians must be able to speak frankly and openly to patients."
The government argued to the court that being a member of a profession means surrendering free speech rights and that the government may limit the speech of physicians and other professionals to serve the public interest. The Supreme Court, though, has held to the contrary and even has declared that professional speech may be entitled to "the strongest protection our Constitution has to offer." Florida Bar v. Went for It Inc., 515 U.S. 618 (1995).
The 9th Circuit rightly followed this and stated: "Being a member of a regulated profession does not, as the government suggests, result in a surrender of First Amendment rights."
Indeed, the 9th Circuit explained that the government's policy is a viewpoint restriction on speech: Doctors are subject to investigation and punishment only if they express the view that medical use of marijuana could be beneficial to the patient. The law is clear that viewpoint restrictions are constitutional only if they meet the most exacting scrutiny and are proved to be necessary to achieve a compelling purpose. There is no such compelling interest in regulating conversations between doctors and patients about marijuana.
The 9th Circuit's decision is thus an important ruling in favor of First Amendment protection for conversations between all professionals and their clients and patients. Judge Alex Kozinski wrote a concurring opinion in which he emphasized that "[t]hose immediately and directly affected by the federal government's policy are the patients, who will be denied information crucial to their well-being, and the State of California, whose policy of exempting certain patients from the sweep of its drug laws will be thwarted."
Although the 9th Circuit's decision is based on the First Amendment, ultimately it also is very much about federalism. If states' rights mean anything, it should be the ability of individual states to experiment, particularly in areas traditionally left to state governments to regulate.
Throughout American history, it has been for the states, not the federal government, to regulate doctors and other professionals. The 9th Circuit's ruling is thus an important reaffirmation of basic federalism principles in limiting the ability of the federal government to intimidate and punish doctors for discussing medical care options with their patients.
Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California Law School.
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