FEDERAL COURTS PROTECT MEDICAL MARIJUANA

On April 21, U.S. District Court Judge Jeremy Fogel issued a preliminary
injunction barring the federal government from raiding or prosecuting a
medical marijuana cooperative in California. This historic action is just
the latest in a series of decisions in which federal courts have shown great
skepticism toward federal attacks on state medical marijuana laws.

These federal court actions have particular significance here in Vermont,
where officials, including Gov. James Douglas, have claimed that federal
hostility prevents the state from protecting medical marijuana patients from
arrest.

Judge Fogel's injunction, protecting the patient-run Wo/Men's Alliance for
Medical Marijuana (WAMM), is only one of several court decisions suggesting
such fears are exaggerated. Vermont can indeed act to protect patients.

This may come as a surprise. We so often hear the claim that "federal law
trumps state law" that many just assume it to be true. But that is not how
our Constitution was written, as federal courts have acknowledged.

In fact, the Constitution was written to limit the powers of the federal
government and to give states considerable autonomy in running their own
affairs - a point made clear in the Ninth and 10th Amendments. The federal
government has attempted to undermine state medical marijuana laws by
abusing one power it does have - the power to regulate interstate commerce.

"Interstate commerce" means, as you might expect, commerce between states -
that is, business or commercial activity that crosses state lines, such as
when a car made in Detroit is sold in Vermont. Amazingly, the federal
government has claimed the power under this "commerce clause" to arrest
patients and their caregivers growing and using medical marijuana completely
within a state - for example, Californians using California water,
California soil, California seeds, California equipment, and conducting no
commercial activity whatsoever.

That doctrine was rejected by the Ninth U.S. Circuit Court of Appeals in the
case known as Raich v. Ashcroft, decided Dec. 16, 2003, setting the
precedent that Judge Fogel followed in protecting WAMM.

Though Raich could still be appealed, it was not the first time the courts
have blocked the federal government from attacking state medical marijuana
laws. Conant v. Walters arose from federal attempts to punish physicians who
recommend medical marijuana to patients. Because federal law does bar
doctors from writing marijuana prescriptions, the right of physicians to
recommend marijuana is crucial to these state laws.

When the government threatened to go after doctors, a group of physicians
and patients sued, arguing that doctor-patient communications are protected
by the First Amendment to the Constitution. The Ninth Circuit ruled that the
government cannot dictate to doctors what advice they can give their
patients, and the Bush administration appealed to the U.S. Supreme Court.
Last October, the Supreme Court refused to hear that appeal, and the ruling
protecting doctors and patients stands.

Even when forced by the wording of federal law to punish medical marijuana
patients and providers, federal judges have expressed dismay and refused to
impose harsh sentences. In an important but little-publicized case last
year, U.S. District Judge Howard Matz sentenced medical marijuana defendant
Scott Imler to only probation, declaring in court, "To allocate the
resources of the Drug Enforcement Agency and the U.S. attorney's office in
this case baffles me, disturbs me."

While the legal skirmishes around medical marijuana are probably not over -
the zealots in the Bush administration are nothing if not persistent, the
bottom line is simple: States have the right to enact laws protecting
medical marijuana patients, and the federal government has no right to undo
those laws and an increasingly limited ability to interfere with them.

Federal hostility is simply no excuse for inaction on medical marijuana.
Vermont can and should stop using state law to arrest cancer and AIDS
patients for simply trying to relieve some of their suffering.

Nancy Lynch is the statewide organizer for the Vermont Marijuana Policy
Project.