On Tuesday, Oct. 10, members of the Massachusetts Cannabis Control Commission came to the Vineyard to gauge Islanders’ views concerning the proposed regulations regarding the recreational and medicinal use of marijuana. Commonwealth voters and the Legislature approved the measure last year, and, as Barry Stringfellow reported in The MV Times, all six Island towns agreed. The law is to go into effect in mid-2018.
To date, 29 states and the District of Columbia have legalized marijuana use, in its recreational and/or medical form. According to some reports, it has become a $20 billion industry. According to Mr. Stringfellow’s report, when Islanders met members of the Control Commission, “No one spoke against adult use or medical marijuana.”
But hold it right there: Not so fast. The legal use of marijuana may well be in danger.
First, let’s be clear about one thing. The Constitution’s Article VI contains the supremacy clause. It says, simply, that the laws of the United States “shall be the supreme law of the land.” Under this authority, Congress and the current administration may well quash the Massachusetts law.
This is because in 1970, Congress passed, and President Nixon signed, the Controlled Substances Act (CSA). It prohibited the manufacture, importation, possession, use, and distribution of certain substances. The law identifies five schedules. Schedule I drugs are regarded as the most harmful in that they have the most potential for abuse. Marijuana is listed in Schedule I along with heroin, LSD, ecstasy, and other hallucinogens.
Despite the CSA, in 1996 California became the first state to legalize medical marijuana when its citizens enacted the Compassionate Use Act by referendum. Under the law, two very ill women used the substance to staunch excruciating pain: One suffered from an inoperable brain tumor and other medical problems, while the other experienced wretched back pain and spasms.
Both were treated by licensed, board-certified family practitioners, who concluded, after prescribing a host of conventional medicines, that they should treat their conditions and alleviate their associated symptoms with marijuana. One of the women’s physicians believed that without cannabis treatments, she would suffer such pain that it could prove fatal.
In 2002, both faced criminal charges when officers from the U.S. Drug Enforcement Agency arrested them for violating the CSA. They challenged the law as beyond the authority of Congress, but three years later, the Supreme Court validated the law. They later wound back in federal court to argue that marijuana in their case was necessary for medical reasons. The judge rejected that argument, claiming in 2007 that because only a few states at that time permitted the use of medical marijuana, it had not yet risen to become a fundamental right.
After Barack Obama became president in 2009, his attorney general, Eric Holder, declined to enforce the CSA regarding marijuana laws. And then in 2014, Congress agreed to an amendment to a budget bill barring the federal government from enforcing marijuana laws in states where the drug is legal. Congress must renew that every year.
It was set to expire last month, but Congress extended it until December. It will end if Congress declines to act. And it might. Why? Because Attorney General Jeff Sessions, who is no Eric Holder, hates marijuana. Last March, he said that marijuana is “only slightly less awful” than heroin. He now seems ready to begin prosecutions under the CSA in the states where it is legal. And under the supremacy clause, he has that authority.
Should both of these developments become reality, state laws, like the one in Massachusetts, may well become as much a part of Commonwealth history as the buckles on shoes that the Pilgrims wore.
Jack Fruchtman, who is a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University.