MARIJUANA GRIDLOCK? HIGH COURT SIGNALS NO ROOM FOR MEDICINAL USE

As researchers in California were announcing plans for a center to study
whether marijuana has medicinal uses, the justices of the U.S. Supreme
Court were dampening hopes that there was room in federal law for such a
use of the substance. The two events exemplify how our judicial and
electoral systems have yet to resolve the conflict over marijuana. The
public in eight states, including California via Proposition 215, have
approved initiatives to legalize marijuana as medicine. But federal judges
don't obey the will of the voters, but the letter of a federal law that
bans marijuana, period.

Is there wiggle room in the federal law? U.S. District Judge Charles Breyer
didn't see any back in 1998 when he barred the Oakland Cannabis Buyers'
Cooperative from "engaging in the manufacture or distribution of
marijuana." Yet the jurists of the 9th U.S. Circuit Court of Appeals saw
things differently, and they floated a legal balancing act of sorts. Yes,
federal law bans marijuana. But the law doesn't over-ride "medical
necessity," said the appellate justices. So the ban doesn't apply "to
seriously ill individuals who need cannabis for medicinal purposes."

The high court has quickly stepped in, however, to keep the outright ban on
marijuana use intact. By a 7-1 vote, the Supreme Court has issued an
emergency order that sets aside the 9th Circuit's legal theories until
arguments from both sides are heard later this year. While the high court
hasn't issued its final ruling in the case, issuing this emergency order
gives a strong signal about their thinking.

The tidiest legal solution would be for Congress to allow every state to
regulate marijuana's medicinal use for itself. States already have great
authority to regulate the practice of medicine. In many respects,
delegating the marijuana decisions to states would be consistent with this
existing division of powers. Yet Congress would have to relinquish control
of marijuana rules to the states. That is not likely any time soon. At
least new research through centers such as the new one in California will
help resolve just how medicinal marijuana truly is. In the meantime, the
will of the public and the law of the land will continue to collide.