Pot Measure A Tough Sell In Congress

June 07, 2005

Josh Richman, Oakland Tribune

Two greater Bay Area members of Congress seem likely to oppose a legislative amendment that medical marijuana advocates call their next best hope after Monday's U.S.  Supreme Court defeat. The amendment by Rep.  Maurice Hinchey,D-N.Y., and Rep.  Dana Rohrabacher, R-Huntington Beach, would forbid the Justice Department from using public money to raid, arrest or prosecute patients and providers in states with medical marijuana laws.

It's expected to come up as early as next week, and Oakland's Angel McClary Raich -- one of the patients who brought the case decided Monday by the Supreme Court -- intends to go to Washington, D.C., to testify for it.

The same amendment got 152 votes in 2003 and 148 in 2004, far short of the 218 it needs for passage.  But advocates say Monday's ruling -- that medical marijuana patients and providers can be federally arrested and prosecuted -- might rally more support.  Activists at a candlelight vigil outside the 9th U.S.  Circuit Court of Appeals' San Francisco courthouse Tuesday evening urged lawmakers to sign on.

Most of the Bay Area delegation already is on board.  But Rep.  Dennis Cardoza, D-Atwater, and Rep.  Richard Pombo, R-Tracy, opposed the amendment twice before.  Neither could be reached for comment Tuesday, but any change seems like a long shot

'Like most Americans and two-thirds of Congress, Congressman Cardoza does not believe the use of marijuana for 'medicinal' purposes should be legal.  He has no plans to change his position on this issue,' spokesman Bret Ladine said before last year's vote.  'The amendment is an attempt to circumvent existing federal law.'

Pombo also is on record opposing medical marijuana.

Long shots in the House

The Hinchey-Rohrabacher amendment isn't the only pending legislation on which medical marijuana proponents are pinning hopes, merely the one with the most support.

Rep.  Barney Frank, D-Mass., in May re-introduced his 'States' Rights to Medical Marijuana Act,' to move marijuana to a less-restricted status within the Controlled Substances Act and regulate its production, possession and use as medicine.  Among this bill's co-sponsors are Barbara Lee, D-Oakland; George Miller, D-Martinez; Pete Stark, D-Fremont; Tom Lantos, D-San Mateo; Lynn Woolsey, D-San Rafael; Anna Eshoo, D-Palo Alto; and Mike Honda, D-San Jose.

But Frank has carried this or similar bills in every session since 1995.  Last time, it died without a hearing in a House subcommittee.  And it now has 36 co-sponsors compared with 44 last session.

Last session also saw a 'Truth in Trials Act' to let marijuana defendants plead a medical defense to federal juries.  It was inspired by the prosecution of Oakland's Ed Rosenthal, convicted in 2003 of felony marijuana cultivation after a judge barred him from mentioning his medical motive.

But this bill's House version -- introduced by Rep.  Sam Farr, D-Santa Cruz, with 44 cosponsors -- also died without a hearing.  A Senate version was introduced in November, just weeks before the session's end.  It also went nowhere and has not been reintroduced in this session.

It's not surprising medical marijuana advocates had looked to the courts for relief.  They still have options there, although many believe the case decided Monday was their best hope.

Denied in the courts

The U.S.  Supreme Court decided Monday that Congress is constitutionally empowered to regulate activity that happens entirely within a state's borders and without money changing hands if there's a rational belief that this activity contributes to commerce across state lines.  This Commerce Clause argument is actually only one of several that Raich and co-plaintiff Diane Monson of Oroville raised in their lawsuit.

Among their other claims was that federal interference violates the Fifth Amendment due-process rights of Californians to be free from pain, prolong their lives and maintain the physician-patient relationship's sanctity.  They'd also claimed medical necessity should provide an exception to the federal ban on marijuana.

Those arguments were rejected by a federal judge in San Francisco but never considered by the 9th U.S.  Circuit Court of Appeals, which went no further than finding Raich and Monson likely to prevail on the Commerce Clause claim.  Robert Raich, Angel's husband and attorney, said Monday that they'll now consider whether to re-ignite the due-process and medical-necessity claims before the 9th Circuit.

The Supreme Court rejected a medical-necessity exception for collectively growing and distributing marijuana in the Oakland Cannabis Buyers Cooperative's case in 2001.  The justices did, however, leave open the question of whether an individual patient could claim a medical necessity exception.

University of California, Berkeley Boalt Hall School of Law Professor Jesse Choper said Tuesday the due-process claim would be 'an uphill battle, but it's not off the charts.'

He cited two Supreme Court opinions on assisted suicide.  'You can cobble together, by inference at least, a position of a majority of the court ...  that under certain circumstances, they were willing to recognize a substantive due process right to take life if it's being done consentually by the individual,' he said.

'Under those circumstances, it seems to me it's by no means an impossible move to say, 'If you've tried every other drug on the planet and you still have substantial pain, you have a right to marijuana if it's medical benefit is substantiated,'' Choper said.  'You have to work to get there, but it's not simply going on hope.  .  There's a logically developed argument.'

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