At the same time, an injunction against enforcement was filed in the District Court for the Northern District of California. A group of patients and physicians again initiated the legal action; this time, they were successful in obtaining a permanent injunction of the policy: The court prohibited the federal government from revoking the controlled substance registration or investigating any physician who recommended medical marijuana on the basis of a sincere medical judgment. The Supreme Court declined to hear the case.10
The U.S. Supreme Court did accept the third case, Gonzales v Raich, which did not address whether the individual physician would be prosecuted for recommending a state medical marijuana program but instead whether the federal government possessed the authority under the Commerce Clause to regulate intrastate use of marijuana for medical purposes, including revoking physicians’ controlled substance licenses.
The facts of the Raich case and legal background leading to the Supreme Court decision are as follows: In 1996, California voters passed the Compassionate Use Act, making California the first state in the country to legalize the medical use of marijuana. The law conflicted with the classification of marijuana as a Schedule 1 drug. This conflict between state and federal law rendered the case highly relevant to the question of VA physicians’ completion of medical marijuana forms for patients in states where medical marijuana is legal. The DEA had acted in California, not against a physician’s prescribing authority but against a patient, Angel Raich, for possession of medical marijuana. The DEA agents confiscated the medical marijuana from the patient’s home. In response, a group of medical marijuana users sued the DEA and California Attorney General Roberto Gonzales in federal district court.11
Raich’s attorneys argued that the constitutional basis of the federal government’s power to regulate interstate commerce, which formed the legal claim of the CSA, overreached Congress’s Commerce Clause powers. The district court ruled in favor of the attorney general, but the Ninth Circuit Court of Appeals reversed the decision, ruling that the application of the CSA to the intrastate transactions involved in California’s medical marijuana program was unconstitutional. The Ninth Circuit Court ruling cited 2 important prior cases not involving medical marijuana that also limited the Commerce Clause, although not with reference to marijuana: U.S. v Lopez in 1995 and U.S. v Morrison in 2000.12,13
The Supreme Court agreed to hear the case in June 2004 and in a 6-3 decision ruled that the application of the CSA to intrastate cultivation and possession of marijuana for medical use does not exceed Congress’s power under the Commerce Clause. Supreme Court Justice John Paul Stevens wrote the majority opinion, arguing that the power of the Commerce Clause did extend to the regulation of a “class of activities” that had a substantial effect on interstate commerce. Because marijuana use, even for medical purposes, confined to a local area, such as a state, materially affected the supply and demand market for marijuana in the nation, the regulation of state use of marijuana was required to govern the interstate traffic of marijuana.11
The VA OGC opinion referenced these cases in its analysis of the question VHA providers raised regarding the completion of state medical marijuana forms, particularly those in states such as Colorado and New Mexico where completing forms is not equivalent to providing a prescription yet does constitute a medical recommendation for the use of marijuana.14 The OGC noted that recommendation is not a term of art contained within the CSA and that Pearson ruled that there was no salient distinction between a prescription and a recommendation, where a recommendation was necessary for a patient to be able to obtain medical marijuana, which is the requirement in most states.5
The VA OGC concluded, “While some states may provide for the use of medical marijuana, such programs are in violation of federal law.”5 In formulating its judgment, the VA OGC cited the Supremacy Clause as the key to all subsequent VHA directives regarding medical marijuana. “The Supremacy Clause is the most important guarantor of national union. It assures that the Constitution and federal laws and treaties take precedence over state law and binds all judges to adhere to that principle in their courts.”8
Quoting an informal communication from the Department of Justice (DOJ), the VA OGC warned that the DOJ “may seek civil or criminal penalties for federal physicians and practitioners who completed forms that either recommend the use of medical marijuana or forms that describe the patient’s physical condition in order to facilitate the patient’s procurement of medical marijuana pursuant to state law.”5