Will Judge Kimberly J. Mueller Declare Federal Cannabis Prohibition Unconstitutional?
It’s unlikely. But she has been willing to consider arguments that a prohibition based on “no medical use” is plainly false. Even the Assistant U.S. Attorney General arguing the case had to concede that cannabis “is not the most dangerous drug in the world” and that “all we are saying [regarding medical use] is that the evidence is such that reasonable people could disagree.” By hearing arguments, U.S. District Court Judge Mueller is venturing where few (or no) federal judges have dared to go. This augers well for growing awareness of medical uses of cannabis. Moreover, it puts the judge in the position of ruling (if she upholds constitutionality of the ban) that the U.S. Congress can constitutionally ban any substance if there is any “reasonable disagreement” about its medical efficacy. So much for life, liberty, and pursuit of happiness, and reserving all unstated powers to the states, and to the people. Such an interpretation would permit criminal bans on all experimental medicines, even for people with no effective alternatives to treating their conditions.
The Supreme Court has been doing violence to reasonable interpretations of the Constitution since at least Dred Scott, and arguably before. If Judge Mueller decides to rule the federal ban unconstitutional, she will have to distinguish the case in front of her from contrary Supreme Court precedents such as Wickard v. Filburn and Gonzales v Raich. Raich, however, dealt with the question of whether Congress can constitutionally regulate cannabis grown for one’s own personal use. The Supreme Court held that Congress could, and as far as the federal court system goes, only the Supreme Court can overturn its own rulings. To reach a different result, the Judge would have to find a different basis for ruling cannabis Schedule 1 status unconstitutional. For example, the Judge might not deny that Congress has the power to regulate, and instead make a narrower finding that Congress designating Cannabis as a Schedule 1 drug with no medical use is so clearly false that it violates some other clause of the Constitution. The case name is U.S v. Schweder in the Eastern District of California.