Federal Marijuana Policy Undermines Rule of Law

Federal marijuana policies subvert the rule of law in two ways: First, the law as currently written embodies a clear scientific falsehood—that marijuana has no medical uses. Second, instead of changing the law to reflect contemporary knowledge, the administration has chosen simply not to enforce the law in the states in which “medical marijuana” has been legalized. This sends a message that a law need be obeyed only if one agrees with its precepts.

Marijuana is listed in the federal Controlled Substances Act as a “Schedule 1” drug, meaning: (a) “The drug or other substance has a high potential for abuse”; (b) “the drug or other substance has no currently accepted medical use in treatment in the United States”; and (c) “there is a lack of accepted safety for use of the drug or other substance under medical supervision.” Just last week, the DEA refused to change this designation. According to a story published by NPR, “Drug Enforcement Administration chief Chuck Rosenberg says the decision is rooted in science. Rosenberg gave ‘enormous weight’ to conclusions by the Food and Drug Administration that marijuana has ‘no currently accepted medical use in treatment in the United States.’”

Did you catch the circular justification, provided by Rosenberg and in the law itself, of the phrase “in the United States”? It does not mean that there is actually no scientifically accepted medical use for the drug or, at least, its derivatives. In fact, regulators in the United States have not found medical uses for cannabis primarily because our laws have prevented the very kind of medical testing needed to determine such medicinal uses. (The DEA has said it will now allow more testing.)

Researchers in other countries, not constrained by the forty-six-year terms of the Controlled Substances Act, have found beneficial medicinal applications for the drug. Several countries’ laws permit marijuana to be prescribed in the same way as other drugs that have a potential for abuse, such as morphine and methadone.

Continuing to base law on what are now widely understood to be incorrect assumptions has had serious societal consequences. First, sick and disabled people have been deprived of efficacious relief. Marijuana or its derivatives can stimulate the appetites of chemotherapy patients and relieve neurological conditions such as diabetic neuropathy. I have a good friend with multiple sclerosis who lives in Canada; because medicines made from the cannabis plant can be prescribed legally there, he uses a marijuana-derived mouth spray to help relieve his muscle spasms.

Stubbornly adhering to the “no medicinal uses” fiction also aggravates the anarchy of state medical-marijuana laws. Beginning with California’s Proposition 215, half the states and Washington, DC now allow doctors to write “letters”—not a well-regulated prescription process—which patients may take to dispensaries to obtain the drug. These laws do not define the conditions for which such letters may be written, nor the proper doses to take. They also allow “patients” to grow their own marijuana. This “system” has been abused to provide cover for recreational use, for example, in the case of the medical marijuana patient who uses weed to relieve “stress.”

The proper—indeed, the American—response to the imbalance created by the Controlled Substances Act is to change the law. Instead, politicians at the highest level have taken the easy way out by pledging not to enforce the federal law regarding medical marijuana in states that disagree with it. Hillary Clinton has made such a pledge, claiming that non-enforcement allows the states to “act as laboratories of democracy.” No. Granting specific legal exemptions to the states to permit medical dispensing would do that. Refusing to enforce valid federal law is a different thing altogether.

Clinton would also revise the CSA to list marijuana as a Schedule 2 drug—the same categorization as cocaine. Schedule 2 drugs, by definition, have “a high potential for abuse”; have “a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions”; and, if abused, “may lead to severe psychological or physical dependence.” How can Clinton support “severe restrictions” of marijuana use in federal law while, at the same time, promising not to interfere with the laboratory of the states?

And what about Donald Trump? I can’t quite figure out his position, and I found no specifics on his website. According to the Marijuana Policy Project, Trump “supports legal access to medical marijuana, and he believes states should be able to set their own marijuana policies with regard to adult use.” Such vague generalities will not make America great again.

In the end, the country’s destructive medical marijuana policy boils down to Congress’s cowardice in failing to grapple with current scientific evidence regarding the medicinal properties of marijuana and its refusal to amend the outdated Controlled Substances Act to comport with that evidence, in conjunction with our current and recent presidents’ refusal to push politically toward that end. This is no longer tenable. Marijuana's Schedule 1 status breeds disrespect for government, forces the DEA to waste resources, leads to chaotic distribution schemes, and prevents reasonable medical testing to see which maladies are alleviated by marijuana use—and which are not. Worse, the stigma of federal illegality deters some sick people from seeking a drug that could give them relief. A great country deserves better.

Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism. His new book: Culture of Death: The Age of “Do Harm” Medicine was just published by Encounter Books.

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