Gonzales V. Raich - Subsequent Events

Subsequent Events

Both Raich and Monson have indicated their intention to continue using marijuana for medical use in spite of the ruling.

Two days after the ruling, the International Narcotics Control Board issued a statement indicating that the Board "welcomes the decision of the United States Supreme Court, made on 6 June, reaffirming that the cultivation and use of cannabis, even if it is for 'medical' use, should be prohibited." INCB President Hamid Ghodse noted, "Cannabis is classified under international conventions as a drug with a number of personal and public health problems," referring to the drug's Schedule I status under the Single Convention on Narcotic Drugs.

Not long after the decision in Raich, the Court vacated a lower court decision in United States v. Stewart and remanded it to the court of appeals for reconsideration in light of Raich. In Stewart, the Ninth Circuit had held that Congress lacked the Commerce Clause power to criminalize the possession of homemade machine guns.

In Congress, in order to counter the effect of this ruling, Representative Maurice Hinchey (D-NY) and Dana Rohrabacher (R-CA) annually introduce legislation to stop the Department of Justice from arresting and prosecuting medical marijuana patients. This effort has not yet succeeded, as most members of Congress voted against the bill.

In 2007, the Ninth Circuit decided against Angel Raich, when she renewed her litigation on substantive due process grounds. Judge Harry Pregerson, the author of the opinion, noted that only a minority of states legalized medical marijuana and it is not a recognized "fundamental right" under the due process clause. However, Pregerson also wrote that she could use medical necessity individually if she is ever arrested for using medical marijuana.

In 2009, the Department of Justice under Attorney General Eric Holder issued new guidelines allowing for non-enforcement of the federal ban in some situations:

It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal.

When C-SPAN's Brian Lamb interviewed former Justice John Paul Stevens about Stevens' book, Five Chiefs, Stevens cited Gonzales as a case in which he upheld the law while deploring the policy.