The federal Controlled Substances Act
One of Richard Nixon’s first significant acts as president was to sign into law the Controlled Substances Act of 1970 (CSA).12 With a calculus incorporating variables of medicinal value, potential for abuse, and psychological and physical effect, the act allocated regulated substances into 5 schedules. Congress placed marijuana, along with heroin, ecstasy, LSD, GHB, and peyote, in Schedule I, the only category that prohibits any use, medicinal or not. Drugs like cocaine, codeine(Drug information on codeine), OxyContin, and methamphetamine landed in the less restrictive Schedule II, which permits prescription-based medical use.
Congress placed marijuana in Schedule I temporarily, pending reconsideration in light of the forthcoming report of the National Commission on Marijuana and Drug Abuse.13 The study group, which Nixon commissioned and most of whose members he appointed, recommended decriminalizing “possession in private of marihuana for personal use” and “distribution in private of small amounts of marihuana . . . not involving a profit.” Audiotapes released 30 years later revealed a livid President Nixon who demanded that, despite the report, his administration issue “a goddamn strong statement on marijuana.”14 The president added an anti-Semitic attack against advocates of decriminalization: “You know it’s a funny thing. Every one of the bastards that are out for legalizing marijuana is Jewish. . . . I suppose it’s because most of them are psychiatrists, you know, there’s so many, all the greatest psychiatrists are Jewish.”
President Nixon prevailed, marijuana stayed in Schedule I, and there it remains to this day.
The state response
In 1996, with the passage of Proposition 215, the Compassionate Use Act, California became the first state to challenge the CSA.15 The Compassionate Use Act provided that neither a patient, a “patient’s primary caregiver,” nor a physician may be prosecuted or sanctioned for “the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.”
Following California’s lead, a dozen states—Alaska, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington—enacted laws permitting residents to possess, use, and cultivate marijuana for medical purposes.16
The Supreme Court: Gonzales v Raich17
The litigation that led to the triumph of the CSA over state medical marijuana laws began in August 2002 when federal Drug Enforcement Administration officers and county deputy sheriffs jointly raided the home of a California woman who was cultivating and using marijuana in accordance with the Compassionate Use Act. “[A]fter a 3-hour standoff” with the county deputies, the federal agents seized and destroyed the woman’s marijuana plants. She and others brought suit in federal court to enjoin the application of the CSA on the ground that it infringed on her constitutional rights.
The medical user lost at the trial level but prevailed on appeal when the US Court of Appeals held that the federal power to regulate commerce and, thus, drug use, did not reach state-authorized medical use: “this limited use is clearly distinct from the broader illicit drug market . . . insofar as the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce.”
On June 5, 2005, in a 6 to 3 vote, the US Supreme Court reversed the judgment, invalidating the California law, and embracing an expansive view of the power of the federal government and the reach of the CSA: “The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses.”
Thus was the status of medical marijuana, authorized by a quarter of the states but banned by federal law, until the Justice Department’s recent memorandum.