The last issue I will address is the question of whether the DEA – or, for that matter, the FDA – can determine what constitutes a “currently accepted medical use in treatment” without deferring to state laws following the United States Supreme Court’s decision in the case of Gonzales v Oregon, 546 U.S. 243 (2006). I consider it highly likely that the answer is no, and that the DEA’s position that state medical cannabis laws are irrelevant violates the Constitution as recently interpreted by the highest court.
In Oregon the Supreme Court rejected the Attorney General’s claim that he was permitted under the Constitution to define the “legitimate practice of medicine” to exclude physician-assisted suicide. In that case, the state of Oregon had passed a law allowing physicians, under relatively strict requirements, to prescribe Schedule II drugs in lethal amounts for the purposes of enabling terminally ill individuals to commit suicide. In response the Attorney General issued an Interpretative Rule stating that assisting suicide (i.e. by prescribing a lethal amount of a Schedule II controlled substance) is not the legitimate practice of medicine. Many years earlier the DEA had issued a rule saying that every prescription of a controlled substance must be for a “legitimate medical purpose”; by stating that assisting suicide via a prescription was not a prescription for a legitimate medical purpose, the Attorney General laid the foundation for revoking the registration under the CSA of physicians who wrote such prescriptions. (Did you know that every physician who wishes to be able to write a prescription for a controlled substance, e.g. a painkiller, must register with the DEA? In practice that means …all of them.)
The Supreme Court ruled that the Attorney General’s action violated the Constitutional principle of federalism, i.e. the principle that whatever powers the Constitution does not assign to Congress are reserved to the states. In doing so, the Court repeatedly referred to the traditional authority of states to regulate the practice of medicine. The Court stated:
In deciding whether the CSA can be read as prohibiting physician-assisted suicide, we look to the statute’s text and design. The statute and our case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this however, the statute manifests no intent to regulate the practice of medicine generally. The silence is understandable given the structure and limits of federalism, which allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.
The structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the States’ police powers.
Further cautioning against the conclusion that the CSA effectively displaces the States’ general regulation of medical practice is the Act’s preemption provision, which indicates that, absent a positive conflict, none of the Act’s provisions should be construed as indicating an intent on the part of Congress to occupy the field in which that which provision operates…to the exclusion of any State law on the same subject which would otherwise be within the authority of the State.
The Court assembled numerous other arguments to the effect that the Attorney General is not authorized to define what is the legitimate practice of medicine, but the specific discussion tended to focus on the particulars of that case, which concerned the Attorney General’s ability to regulate prescription rather than, as here, the DEA’s authority to determine whether there is a “currently accepted medical use in treatment” of a given drug such that it cannot remain in Schedule I. However, the issue should be clear by now: if (a) the practice of medicine is a matter traditionally reserved to the states, doesn’t this principle mean that (b) the determination by a state that cannabis can be used for medical purposes necessarily requires the conclusion that (c) cannabis has a “currently accepted medical use in treatment” for purposes of the CSA? This interpretation takes out of the federal government’s hands all power except to determine whether states have recognized a medical use for cannabis. When I say the “federal government,” I include the FDA. Even though the Supreme Court made reference in Oregon to a delegation of authority to DHHS to make “medical judgments” at the federal level, that language does not require a conclusion that the FDA can decide that there is no currently accepted medical use in treatment of a drug when states have decided to the contrary, especially in light of the federalist principles stated in Oregon – and the fact that nothing in the CSA expressly delegates that particular decision to any federal agency.