This article was originally published on the Marijuana Patients Organization site on August 5, 2015.
The preamble’s stated purpose of promoting the “general Welfare” is the closest the federal Constitution comes to addressing public health. The remainder of the Constitution, including the Amendments, provides no role for the federal government in matters of public health. The silence, viewed in conjunction with the Tenth Amendment’s reservation of undelegated powers to the states, indicates that the federal government’s public health powers extend only to the boundaries permitted by its defense, interstate commerce, and tax powers.(1)
In addition, the federal government is responsible for protecting the public health in discrete geographic areas directly under its control (e.g., military bases).
Pursuant to its itemized powers, the federal government may, for example, assume responsibility for public health emergencies precipitated by acts of war or terrorism. In all other cases, the states bear the primary responsibility for preventing and responding to threats to the public’s health.(2)
State medical marijuana laws modify public health statutes, and the federal government needs to respect and abide laws enacted by state legislatures. Back down, Big Brother.
(1) Caroline Products Co. v. Evaporated Milk Assn., 93 F.2d 202, 204 (CA 7, 1937) [“While the police power is ordinarily said to be reserved by the states, it is obvious that it extends fully likewise to the federal government in so far as that government acts within its constitutional jurisdiction…The police power referred to extends to all the great public needs…Its dimensions are identical with the dimensions of the government’s duty to protect and promote the public welfare.” (Internal citations omitted).]
(2) Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905) [“The safety and health of the people of Massachusetts are, in the first instance, for that commonwealth to guard and protect. They are matters that do not ordinarily concern the national government.”] and Compagnie Francaise de Navigation a Vapeur v. State Board of Health, 186 U.S. 380, 387 (1902) [“That from an early day the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress is beyond the question. That until Congress has exercised its power on the subject, such state quarantine laws and state laws for the purpose of preventing, eradicating, or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce, is not an open question.”]