Supreme Court should consider the ‘pattern of nonenforcement’ when it comes to medical cannabis

Millions of Americans rely on cannabis as an essential, if not lifesaving, medical treatment. Studies have confirmed that cannabis and cannabis derivatives are effective in treating chronic pain, certain forms of nausea, sleep disorders, and epilepsy. And the list of therapeutic benefits only grows year after year. At the same time, cannabis has been demonized for political, and reportedly racist, reasons -- starting with Harry Anslinger, who served as commissioner of the Federal Bureau of Narcotics (a predecessor of the Drug Enforcement Administration) in the 1930s, and continuing with its criminalization by the Nixon administration.

Thirty-three states and the District of Columbia have recognized the importance of allowing access to medical cannabis. But even individuals living in those states are not free and clear to use the treatment that they need without fear of legal repercussion. The federal Controlled Substances Act continues to loom over them, with its outmoded ban on cannabis as a Schedule I drug. Patients cannot, for example, cross state lines (or board a plane) while carrying with them what they consider to be essential medicine, take their medicine while living on the campus of a federally funded university, or live in federally funded housing.

The U.S. Supreme Court will soon consider a certiorari petition seeking to address the many problems caused by this growing divergence between federal and state law. In Washington v. Barr, the court will have the opportunity to decide whether the Controlled Substances Act's prohibitions on medical cannabis violate the due process clause of the U.S. Constitution. Among the petitioners are three sympathetic Americans who suffer the everyday consequences of the irreconcilable split between federal and state law: a child who relies on cannabis to treat her frequent epileptic episodes, a child who uses cannabis to mitigate the effects of a severe mitochondrial disease and to prolong his life expectancy, and an Army veteran who uses cannabis to treat his post-traumatic stress disorder and lead a normal life. The case does not involve any claimed right to use cannabis for recreational purposes.

While the odds of a cert grant in any case are stacked against review, there are several compelling reasons for the court to consider the questions presented in Washington v. Barr now.

First, the 2nd U.S. Circuit Court of Appeals' solution of merely passing the buck to the DEA and having the agency decide the constitutional issues simply will not work. Federal agencies generally are not in the business of declaring unconstitutional the very federal laws that they are charged with enforcing. This is particularly true of the DEA, which has let prior requests to reschedule or deschedule cannabis languish for decades without action.

Second, the momentum has shifted considerably in favor of recognizing a right to use cannabis for medical treatment. When the Supreme Court last addressed the issue of medical cannabis in Gonzales v. Raich, a commerce clause case, fewer than a dozen states (including California, whose Proposition 215 prompted the underlying challenge) had laws authorizing the medical use of cannabis. On remand in that case, the 9th Circuit concluded that legal recognition of the right to use medical cannabis "has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is 'fundamental.'"

The legal landscape has changed substantially since then. The number of states allowing for the medical use of cannabis now rivals that of the number of states forming an "emerging awareness" of the right to privacy in Lawrence v. Texas, a seminal substantive due process case (33 states and the District of Columbia have legalized medical cannabis compared to the 37 states without anti-sodomy laws in Lawrence). And just as we saw in Lawrence, there is a "pattern of nonenforcement" by both the federal government and the minority of state governments that have yet to adopt laws authorizing medical cannabis.

Finally, the tension between federal and state law has come to a head. The Washington petitioners are only a handful of the many Americans who have felt the ill effects of the federal-state conflict with respect to medical cannabis. While the federal government has stated that it will not criminally prosecute those who use cannabis for medical treatment -- and, indeed, for many years now Congress has expressly prohibited the Justice Department from using any federal funds to prosecute medical cannabis users -- the collateral consequences of the unconstitutional Controlled Substances Act endure. Patients who use cannabis for therapeutic purposes are shunned from almost every benefit and service that federal money touches. As one of the petitioners in this case has already experienced, the simple act of getting on an airplane to lobby one's representatives in Congress becomes impossible thanks to the restraints imposed by the Controlled Substances Act; the choice is either to board the plane without life-saving treatment, or to not travel at all. That is quite the Hobson's choice.

Medical cannabis is not going anywhere. In June 2018, the Food and Drug Administration approved Epidiolex, a cannabis-derived pharmaceutical to treat certain forms of epilepsy. In addition to debunking the very premise of the Controlled Substances Act, i.e., that cannabis has no medical use, this FDA action has spurred increased investment by pharmaceutical companies and others in research and development around potential cannabis-based therapies. There are likely to be more therapies and more people using cannabis for medical purposes, and more and more Americans will be affected by the irreconcilable approaches taken by federal and state law on the issue of medical cannabis.

The petitioners here are among the first to rely on the strong nationwide consensus on the right to use cannabis as medical treatment, but if the Supreme Court denies certiorari, they certainly will not be the last. It is no longer a matter of if, only when, the court reconciles state and federal law. The Supreme Court should take up this case now. 