Supremes on pot

November 30, 2004

Ann Harrison, San Francisco Bay Guardian

California medical marijuana patients Diane Monson and Angel Raich asked the U.S. Supreme Court Nov. 29 to halt federal raids against medical cannabis patients and their caregivers. Saying she would die in agony if federal authorities seized her cannabis, Raich's attorneys pleaded with the justices to limit the power of the federal government to ignore state laws that allow doctors to recommend cannabis for their patients.

"I ask for the court not only to have mercy but to save my life," said Raich, an Oakland resident, who appeared pale and drawn on the steps of the courthouse. "Please do not take my mother away from me," said Raich's 16-year-old daughter, Erica, at a press conference after the hearing.

But the medical marijuana activists received a cool reception from the justices, most of whom appeared unmoved by descriptions of their suffering, which was scarcely mentioned during the hearing.

Justices questioned whether the patients' use of medical cannabis was truly noncommercial, whether the U.S. Food and Drug Administration should regulate medical marijuana, and what impact unchallenged state marijuana laws will have on the number of patients and price of marijuana on the black market.

Regulating marijuana like wheat

This case turns on whether the federal government exceeded its constitutional power to regulate interstate commerce when the medical cannabis is grown entirely in state and given to patients for free. The Supreme Court had already decided in 2001 that the Oakland Cannabis Buyers' Cooperative could not distribute medical cannabis to patients under a "medical necessity" exemption to federal drug laws.

California was the first of 10 states to pass a medical cannabis law when voters approved the 1996 Compassionate Use Act (Proposition 215), allowing patients and their caregivers to use, possess, and cultivate medical cannabis with a doctor's recommendation. But after Drug Enforcement Agency agents raided Monson's Oroville home in 2002 and seized her six marijuana plants, she and Raich asked the court for an injunction preventing federal authorities from arresting or suing them or seizing their medical cannabis and other assets.

In March 2003 a federal judge in San Francisco denied their request for a preliminary injunction to halt raids against medical marijuana patients and their caregivers. But that decision was reversed in December 2003 by a panel of the Ninth U.S. Circuit Court of Appeals, which directed the lower court to grant the patients their preliminary injunction. The majority of the court ruled that Congress doesn't have the power under the Commerce Clause (from which it derives its authority over narcotics) to regulate medical cannabis where no money changes hands and there is no interstate commerce involved.

The Appeals Court precedent has effectively blocked the federal government from prosecuting medical marijuana patients in the eight Ninth Circuit states that have medical marijuana laws. The government appealed to the U.S. Supreme Court arguing that it has the right to regulate state commercial activity that is part of a larger economic enterprise – such as the estimated $10.5 billion national market for marijuana.

During the hearing, Justice Sandra Day O'Conner acknowledged that the case involved locally grown cannabis and "none of this homegrown for medical use marijuana will be on any interstate market." She also pointed out that the practice of medicine was "an area traditionally regulated by the states."

"There is nobody buying or selling anything here," Justice Ruth Ginsberg agreed.

The guiding case cited by both the government and patients is the 1942 ruling Wickard v. Filburn involving a wheat farmer who exceeded federal regulations on how much wheat he could cultivate. The court ruled that the government could regulate his crop even though it was consumed only by his own family. Justice Antonin Scalia pointed out in the hearing that according to this precedent, locally grown marijuana could be regulated like this wheat. "It doesn't have to be bought elsewhere," he said.

Randy Barnett, a Boston University law professor who is representing the patients, argued that those using medical cannabis under California law had only a "trivial impact" on the larger interstate market for marijuana. Barnett argued that the medical marijuana in this case falls outside commercial drug activity and protecting these patients doesn't prevent federal agencies from using the Controlled Substances Act against other commercial drug transactions.

"It's a narrow class of people growing it for themselves or having a provider grow it for them," Barnett said.

This prompted a discussion of just how many medical marijuana patients there were in California, leading Justice David Souter to throw out an estimate of 100,000, which had been cited by a patients' rights group. Souter expressed concern that the number of patients might increase if federal authorities were held back.

But this isn't a concern to Raich, 39, who suffers from a range of ailments including an inoperable brain tumor, nonepileptic seizures, and a wasting syndrome that has pared her down to 98 pounds. Raich and her daughter live in Oakland with Raich's husband, Robert Raich, who served as an attorney in the case. Monson, 47, uses medical cannabis to combat chronic pain.

Justice Anthony Kennedy questioned how many patients were actually growing and how many were purchasing their medicine. "Can't we infer from the enormous commercial market that possession of the drug is proof of participation in the market?" Kennedy said.

Justice Scalia also looked for examples where mere possession infers participation in a market that can be regulated by the federal government. "Congress has done this in other areas, like with endangered species," Scalia said. "You can't have eagle feathers, no matter where you got them, for example."

Should the FDA regulate?

Expressing irritation that the patients hadn't instead taken their appeal to the FDA, Justice Stephen Breyer seemed unaware that the agency had considered the question years ago. "Medicine by regulation is better than medicine by referendum," Breyer announced from the bench.

But on the same day the court heard the patients' case, it was announced that the Washington, D.C., Federal Court of Appeals struck down a lawsuit by the Multidisciplinary Association for Psychedelic Studies seeking to expedite DEA approval of two applications for access to medical research cannabis that have been languishing for 17 months.

MAPS filed lawsuits against the DEA and the Department of Health and Human Services-National Institutes of Health-National Institute on Drug Abuse claiming that the government had engaged in an "unreasonable delay" in responding to its applications to NIDA to purchase 10 grams of marijuana for a medical cannabis vaporizer study and its application to the DEA to import 10 grams of research marijuana from the Dutch Office of Medical Cannabis.

Acting solicitor general Paul Clement, who argued the government's case, emphasized during the Supreme Court hearing that under the federal Controlled Substances Act, marijuana is a drug with "no approved medical use" and a high potential for abuse. He said that federal efforts to suppress the national black market for marijuana are frustrated by "any little island of lawful possession."

The concerns of some justices are unknown. Justice Clarence Thomas, who has supported states rights, was characteristically silent during proceedings. Justice John Paul Stevens said during the hearing that while Chief Justice William Rehnquist was absent due to his treatment for thyroid cancer, he will participate in this case. If Rehnquist votes, the patients need the support of five justices to carry their case. Barnett emphasized that even if the patients' lose their case, state medical marijuana laws would still stand. A ruling is expected this summer.

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