\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0With two states recently granting their citizens the right to use marijuana for recreational pur-poses, 1 at least sixteen states (and the District of Columbia) recognizing the right to use medical marijuana, 2 approximately 73% of Americans in favor of medical marijuana, and, according to one national poll, 56% of likely voters in the United States in 2012 favoring the legalization and regulation of marijuana for any use, 3 will the United States government ever give up its power to prosecute anyone in possession of marijuana?
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0This brief overview: reviews the tension between the federal government and individual states regarding the use, cultivation and distribution of marijuana; addresses some of the pros and cons cited for decriminalization of marijuana; and offers some possible resolutions to this increasingly divisive issue.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Who has the final say?
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Under the Tenth Amendment of the United States Constitution, “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”4 The question of whether the federal government or individual states have the authority to regulate a particular issue is often a bone of contention. While there are many areas where both governments can assert concurrent authority, there is often a question regarding which authority has the ultimate say, especially when the two entities’ regulations conflict.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Tenth Amendment case law addressing this tension has covered such varying topics as: minimum wage and overtime standards for state employees;5 recognition of same-sex marriages by various governmental agencies;6 and reimbursement requirements for undocumented immigrants.7
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0One of the most frequently cited sources of the federal government’s power to regulate and criminalize behavior is under the Commerce Clause, found in article I, section 8 of the United States Constitution.8 Under the Commerce Clause, “Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.”9
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The United States government has used its authority under the Commerce Clause to regulate and criminalize drug use under the Con -trolled Substances Act10(CSA). Since 1970, the CSA has divided controlled substances into five “schedules” of drugs, Schedules I, II, III, IV and V, with each schedule representing a different level of usefulness and/or dangerousness of each drug.11 For example, a Schedule I drug is a drug that has a “high potential for abuse, ” has “no currently accepted medical use in treatment in the United States, ” and is unsafe to use under medical supervision.12 In contrast, a Schedule V drug is one that has “a low potential for abuse” compared to the higher scheduled drugs, has “a currently accepted medical use in treatment in the United States, ” and, if abused, will only lead to “limited physical dependence or psychological dependence” compared to the higher scheduled drugs.13
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Since 1970, marijuana is classified as a Schedule I drug under the CSA, the same as ecstasy, LSD and heroin.14 Therefore, the federal government views marijuana as having a high potential for abuse, no accepted medical use, and finds it unsafe to use, even under medical supervision.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0This idea of marijuana’s supposed dangerous-ness can be found in federal law since the 1930s, most dramatically pronounced in testimony before the House Ways and Means Committee on the proposed Marihuana Tax Act of 1937.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0While recent arguments against marijuana have certainly been based upon more sound and concrete rationale than the histrionics used by Anslinger in the 1930s, even recent anti-marijuana arguments are in stark contrast with the ever-increasing amount of research demonstrating the positive effects of marijuana for those with ailing medical conditions and its minimal negative effects on the average user.18 Some scientifically established benefits include: 1) reducing nausea, vomiting and pain, and improving appetite and sleep in cancer patients undergoing chemotherapy; 2) treating and preventing glaucoma; 3) preventing epileptic seizures; 4) preventing cancer cells from spreading; 5) reducing anxiety (when used in small doses); 6) slowing the progression of Alzheimer’s; 7) easing the pain felt from muscle contractions in MS patients; 8) relieving the painful side-effects from Hepatitis-C treatment; 9) helping treat Crohn’s disease and ulcerative colitis; and 10) relieving arthritis pain.19
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0While medical marijuana advocates worked for decades to change the federal government’s policy towards marijuana, states have taken the matter into their own hands. Although most states still criminalize recreational marijuana use and distribution, an increasing number of states have been legalizing medical marijuana use and cultivation since the mid-1990s.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0For example, in 1996, California voters passed the state’s Compassionate Use Act, which allowed “seriously ill” residents to possess and use marijuana for medical purposes.20 It also allowed for primary caregivers (those who grow marijuana and provide it to patients unable to cultivate the marijuana themselves) exemption from criminal prosecution for possession and distribution of marijuana for medical purposes.21
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Unfortunately, state medical marijuana laws such as California’s have not stopped the federal government from arresting and prosecuting medical marijuana patients and caregivers. In 2002, the federal Drug Enforcement...