To pot or not to pot?

In 2005, the U.S. Supreme Court decided  case  Gonzalez v Reich, where it claimed that, even where states legitimize production and distribution of medical marijuana, the U.S. Congress still has the right to criminalize the same under federal laws.

As a result, production and distribution of medical marijuana in the U.S. was stifled, under the threat of federal criminal prosecution.

Still, since that time, more and more states legitimize production and distribution of medical marijuana, many with great results in tax revenues.

Yet, people who engage in marijuana industry in states that allow growing and distributing medical marijuana, through properly enacted state statutes, are still operating under the threat of a federal criminal conviction.

Recently, two interesting decisions were made in Ohio and in the U.S. Court of Appeals for the 9th Circuit regarding medical marijuana - two diametrically opposite decisions, I must say.

In Ohio, the so-called Board of Professional Conduct for Lawyers prohibited attorneys to give advice as to how to set up the growing and distribution business.

While that was obviously content-based regulation of speech which is, according to the U.S. Supreme Court, unconstitutional under the 1st Amendment unless it meets the so-called "strict scrutiny" test, in 2010 the U.S. Supreme Court overruled the 9th Circuit and ruled that it is legitimate for the federal government to prohibit, through criminal laws, the giving of legal advice on certain issues - and that such a prohibition somehow meets the so-called "strict scrutiny", the top layer of the artificial review standards invented by the U.S. Supreme Court for constitutional violations, event though the U.S. Constitution, through its text, does not allow to treat some constitutional provisions as more important than others.

Now that the Board of Professional Conduct prohibited to lawyers to advise what the State Legislature stated is legal conduct, the Supreme Court of the State of Ohio is looking into whether to overrule the Board or not. 

At about the same time, the U.S. Court of Appeals for the 9th Circuit pronounced a ruling that runs in the face of U.S. Supreme Court's decision in Gonzalez v Reich - it has held that the federal government may not prosecute individuals who grow and sell medical marijuana in compliance with state laws.

Of course, the easiest way to resolve all of that conundrum is for the U.S. Congress to repeal statutes criminalizing marijuana, or to specifically introduce a statute providing that medical marijuana is exempt from the reach of criminal laws.

But, that would be too easy, wouldn't it be?

Too many interests are vested in drug forfeiture laws, in private prison industry housing inmates convicted for selling pot, in "drug counselling" ordered by the court for using pot etc.

But, with the idiotic decision of the Board of Professional Conduct in Ohio - which matches the no less idiotic decision of the U.S. Supreme Court in 2010 that legal advice on a certain subject can be not only deemed a disciplinary violation, but also criminalized, and with the feisty 9th Circuit opposing the U.S. Supreme Court precedent allowing to criminally prosecute people who grow or sell marijuana in compliance with state law - apparently, the interests supporting criminalization of marijuana are waning.

We may see a quick development of the federal law in this area, and soon, and that movement is pushed by parents of sick children who need access to medical marijuana to reduce pain and seizures.

Let's see who wins - the money interests or medical needs of patients.