The Supremes Take a Hit

December 09, 2004

Jordan Smith, Austin Chronicle

Does the federal government have the power to regulate – or, more ominously, to prohibit – the cultivation, possession, and consumption of marijuana by seriously ill patients who use the drug in compliance with state medical marijuana laws? Does the wholly intrastate cultivation and distribution of medicinal marijuana have any effect on interstate commerce of the otherwise illegal drug? If you ask California medi-pot patients Angel Raich and Diane Monson, the answer to each question is a simple and emphatic 'no.

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Raich and Monson say they use medicinal cannabis in accordance with California's Compassionate Use Act of 1996, which legalizes the use, possession, and cultivation of the herb by seriously ill patients on the recommendation of a doctor or other licensed caregiver. And because the two women use medi-pot that is grown inside California state lines, for which no money changes hands, they argue that the federal government has no power under the Constitution's Commerce Clause to attempt to stop them.

Conversely, according to the federal government – represented, in this case, by retiring U.S. Attorney General John Ashcroft and Drug Enforcement Administration head Karen Tandy – the answer to each question is a similarly simple and emphatic 'yes.' The feds say marijuana is an illegal drug, listed as a Schedule I drug under the federal Controlled Substances Act, meaning it has a high potential for abuse and no 'medically acceptable' use. Under the CSA, therefore, the feds are legally responsible for halting all production and distribution of the drug, regardless of the permissiveness of individual state laws. In short, the feds argue, their regulatory power trumps any state law.

On Nov. 29, after more than two years of legal wrangling, federal Acting Solicitor General Paul Clement and attorneys for Raich and Monson faced the U.S. Supreme Court to argue the merits of this particular medi-pot dispute (Ashcroft v. Raich). It is now up to the Supremes to decide who is right. Interestingly, whatever decision they make will likely have less impact on the forward progress of the medical marijuana movement than it will on the larger question of exactly how much overall regulatory power the feds have over the individual states – in all matters of government. In short, the high court's decision on medical marijuana is poised to determine the benchmark for state sovereignty.


Compassionate Use

For nearly three years, Californian Angel McClary Raich, now 39, was confined to a wheelchair, with multiple serious illnesses. Raich suffers from scoliosis, temporomandibular joint disorder, endometriosis, fibromyalgia, wasting syndrome, seizures, and an inoperable brain tumor – among a host of other medical problems. In an attempt to control her various conditions, her doctors have prescribed a myriad of pharmaceuticals – including Marinol, which is, ostensibly, pharmaceutical pot – but none helped, and many made her conditions worse. By 1996 the Oakland mother of two was partially paralyzed and wheelchair-bound – a circumstance caused, at least in part, by the side effects of the 35 different drugs she'd variously been prescribed. Finally, in 1997, as a last resort, one of Raich's nurses recommended she try marijuana to control her complex and interconnected assortment of symptoms.

In 1996, California voters had passed, by 56%, the state's Compassionate Use Act, which allows seriously ill patients – including patients with AIDS, cancer, glaucoma, and severe muscle spasms, among other afflictions – to use marijuana, 'where that medical use is deemed appropriate and has been recommended by a physician.' Potential medi-pot patients are vetted by the state's health department; if accepted, they are issued a state identification card and allowed to possess and cultivate plants for medicinal use. Three years after Raich began using medi-pot she was able to walk again. 'I can't get out of bed without my husband's help. I am that ill,' she said. 'But I got out of my wheelchair. I have the right to live and to be as free of pain as I possibly can.'

Meanwhile, in the Northern California town of Oroville, 47-year-old Diane Monson was also suffering from intractable illness. Monson has a degenerative spinal disease that causes chronic back pain and constant, debilitating muscle spasms. Like Raich, Monson tried a host of pharmaceuticals to control her symptoms – including the recently recalled drug Vioxx – all without success. The synthetic drugs, Monson's doctor explained in court documents, were either completely ineffective or resulted in 'intolerable' side effects. In 1999, Monson's doctor recommended she try marijuana. It worked, and Monson began cultivating her own cannabis – a total of six plants – for medical use, in compliance with state law. 'I thought I was doing everything good,' she says. 'I was following state law.'

Nevertheless, on Aug. 15, 2002, after spying her plants during a helicopter fly-over, DEA agents raided Monson's home. Although both the Butte Co. sheriff and the local district attorney agreed that Monson's cultivation and use were legal, the DEA seized, then destroyed, all six of her plants. '[The sheriff] got quite chesty with the federal guys,' Monson recalled. 'It got quite ugly.'


Among the Several States

Monson wasn't alone – since 2000 (and with increasing frequency after September 11, 2001), federal narcotics enforcers have conducted numerous raids on medical marijuana growing operations – including the high-profile raid of the Wo/Men's Alliance for Medical Marijuana, a medi-pot dispensary in Santa Cruz, which was aiding numerous terminally ill patients in the area with the blessing of local law enforcement. Since passage of the first medi-pot law in California in 1996, the feds have conducted approximately 40 such raids – destroying plants and leaving scared and sick patients in their wake, says Rob Kampia, executive director of the Marijuana Policy Project. The scare tactics have worked, but have also created a backlash. Monson was shaken by the raid at her home, and Raich was increasingly worried that her supply, cultivated by two of her caregivers and so far untouched by federal drug warriors, was nevertheless in jeopardy.

In response, Raich and Monson, along with the two unidentified caregivers, sued Ashcroft and Tandy in October of 2002, seeking a permanent injunction prohibiting the feds from interfering with state-sanctioned use of the medicinal herb. 'I've never sued anyone in my life,' said Monson. 'So, to sue John Ashcroft is a big decision.'

The two women argued that the federal government's enforcement of the CSA against their medicinal use of marijuana exceeds the feds' power under the Commerce Clause of the Constitution. Article I, Section VIII, empowers Congress 'to regulate commerce with foreign nations, and among the several states.' Raich and Monson argue that their pot – grown from California seeds, with California dirt and water, and supplied to them free of charge with the legal blessing of the state – represents a special class of wholly noneconomic, intrastate commerce over which the feds have no control. Raich and Monson are medicinal users and not recreational tokers – the latter class of users, they argue, is still bound by federal regulations. Furthermore, without access to medi-pot, Monson argues, she would suffer immeasurably. For Raich, the stakes are even higher: Without access to medicinal cannabis, she says, she will die. 'I think I am entitled to ... that most fundamental right: to live.'

A California federal district court ruled against Raich and Monson, but the San Francisco-based 9th U.S. Circuit Court of Appeals reversed that decision, opining that 'the way in which the activity or class of activities is defined is critical.' By defining Raich and Monson as part of a small class of medicinal users, the court determined that 'the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician' is distinct from illegal use and trafficking. The 'limited medical use of marijuana ... does not raise the same policy concerns regarding the spread of drug abuse' and is 'clearly distinct from the broader illicit drug market – as well as any broader commercial market for medical marijuana – insofar as the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce.'

Not surprisingly, Ashcroft and Tandy appealed to the Supremes.


Regulating Commerce

For more than 50 years, until quite recently, the Supremes had been content to grant Congress broad authority to regulate so-called interstate commerce – even if the connection to interstate affairs was very tenuous. Until the mid-Nineties, the court's jurisprudence in commerce matters followed the precedent of a 1942 case, Wickard v. Filburn. In that case, the court ruled that one person's noncommercial and noneconomic use of a product (in Wickard, wheat grown on a family farm and used for household consumption) may actually affect interstate commerce when considered in the 'aggregate' – that is, by extension pooled with similar use by other family farmers across the country. Following Wickard, the court generally reasoned that regulating personal use of a given product was fully within the purview of the feds' Commerce Clause powers.

But in 1995, the court ruled on the first of two cases that reshaped that interpretation and affirmed instead the concept of federalism – the sovereign right of states to be free from undue federal regulation. In U.S. v. Lopez, a San Antonio high school senior who had brought a gun to school was charged with a federal crime under the Gun-Free School Zones Act of 1990. Lopez argued that the prosecution was unconstitutional because the government has no right to 'legislate control over public schools.' The feds countered that Lopez's actions had a 'substantial' effect on interstate commerce: Crime increases insurance premiums and reduces the 'willingness' of people to travel to places they consider unsafe; firearms in schools 'handicap' the educational process, which negatively affects the nation's economic well-being. The court disagreed, and invalidated the 1990 law. 'If we are to accept the Government's arguments,' Chief Justice William Rehnquist opined, 'we are hard pressed to posit any activity by an individual that Congress is without the power to regulate.'

Then, in 2001, the court rejected the government's determination to seek civil remedies against a defendant charged with assault under the Violence Against Women Act of 1994. In U.S. v. Morrison, the government argued that gender-motivated violence would affect travel and business among states; citing Lopez, the court disagreed. The power of the government under the Commerce Clause may not 'embrace effects upon interstate commerce so indirect and remote that ... would effectively obliterate the distinction between what is national and what is local and create a completely centralized government,' Rehnquist wrote.

Interestingly, in a concurring opinion, Justice Clarence Thomas wrote that while he agreed with the court's decision, he disagreed with 'the very notion of a 'subjective effects' test' to determine whether an action affects interstate commerce. 'By continuing to apply this rootless and malleable standard ... the court has encouraged the federal government to persist in its view that the Commerce Clause has virtually no limits,' he wrote, and the court 'will continue to see Congress appropriate state police powers under the guise of regulating commerce.'

Raich and Monson couldn't agree more.


Strange Bedfellows

Given the court's recent rulings, Raich and Monson's attorney Randy Barnett, a former federal prosecutor and currently a professor of law at Boston University, was optimistic as he prepared to argue his clients' medi-pot rights at the high court. The Raich case, he said, will test the limits of the court's recent rulings. To Barnett, his clients' use of medi-pot is distinct and contained, without effect on interstate drug trafficking – an argument that has attracted diverse support. Alongside briefs filed by medical professionals and drug-war-hating, states'-rights-friendly libertarians, the attorneys general of Alabama, Louisiana, and Mississippi also filed in support of Raich, urging the court to uphold states' rights – despite the fact that none of the three has a medi-pot law on the books. (Of course, all three states have a considerable recent history of 'states' rights' defenses of racial segregation.)

Indeed, the case will test the court's predictable range of opinion. The more conservative judges – like Rehnquist, who penned the Lopez and Morrison decisions, and Justice Antonin Scalia, who voted with the majority in the recent commerce cases – will be asked to extend their staunch federalist positions to activities they seem predisposed to dislike. Similarly, the court's more liberal justices, like Justice John Paul Stevens, would likely endorse the affirmation of broader federal regulatory authority than his conservative colleagues – but will he do so at the very private cost of the health and well-being of Raich and Monson?


Eagle Feathers and Tomato Children

On Nov. 29, the contradictions of the court's competing values took center stage, creating a very odd hour of oral arguments. Acting Solicitor General Paul Clement tried to persuade the court that neither of the recent commerce decisions affects the Raich case. Clement told the court that Congress has deemed marijuana illegal and therefore the feds have a right to enforce prohibition. But his assurance appeared to do little to appease swing-vote Justice Sandra Day O'Connor. 'As I understand it, California law applies [to] homegrown marijuana for medical use,' she said. '[That] marijuana is not on the open market.'

Clement was not deterred. 'It is a bit optimistic to think that none of the marijuana produced in compliance with [California] law would be diverted into the open market,' Clement replied. But isn't it California's responsibility to enforce state law, O'Connor asked. 'I don't think ... [that] California has any ability to keep it out of the interstate market,' Clement said. And if diversion cannot be averted, he continued, any cultivation and distribution of pot would have a 'profound effect on interstate commerce.'

But in this case, the homegrown cultivation is for personal, medicinal use, interjected Justice Ruth Bader Ginsburg. In other words, she said, 'nobody's buying anything, nobody's selling anything.' Not true, retorted Clement, who argued that it would be impossible to know which pot was being grown by individuals and which was being bought on the illegal market. 'There is no reason to believe that California will have some unnatural ability to keep one part of the fungible market separate,' he said. Carving out an 'island' of legal use, 'while tempting,' would have a 'devastating' effect on prohibition enforcement – it would be impossible to sort out illegal, recreational users from the legal, medicinal users, he asserted. Besides, he said, the 'beneficial' substance in marijuana, tetrahydrocannabinol, or THC, has been 'isolated' by 'experts' into Marinol, a pharmaceutical available by prescription.

'But there is, in this record, a showing that [after Raich tried] 30-some-odd [prescriptions, including Marinol] that this [marijuana] is the only one that works,' Ginsburg said. 'If we were to prosecute the plaintiffs in this case, would there be any defense?' No, Clement said, and legalizing use of the herb for any purposes will naturally extend to recreational usage.

'Doesn't it depend on how you define the class [of users]?' Stevens asked. 'Is it ever permissible to define a class narrowly?'

'No,' Clement replied.

'You're saying [the Controlled Substances Act] never has an unconstitutional application?' Stevens asked, pushing Clement seemingly to his logical limit.

Clement kept right on going. 'Yes,' he replied, 'that would be our position.'

So, the prohibitive decision of the federal government 'trumps the independent judgment of the doctors who prescribed the marijuana in this case?' Stevens asked.

'To the federal government, medical marijuana is something of an oxymoron,' he said. The government does not deem the use of marijuana medically appropriate, he said, and has concluded that 'whatever the benefits may be, smoked marijuana doesn't have a future as medicine,' primarily because 'smoking is harmful.'

Given his turn before the justices, attorney Barnett reiterated his clients' core assertion: 'The class of actions involved in this case are noneconomic and wholly intrastate.'

'But can't you infer that if there is a large commercial market for any commodity, that simple possession of the commodity is part of that [larger] market?' Justice Anthony Kennedy asked. 'Just because something is fungible doesn't make it part of the market,' Barnett replied.

Ivory tusks and eagle feathers are illegal regardless of where they're obtained, noted Scalia. '[A]re those statutes likewise unconstitutional?'

'No,' Barnett replied. 'This class [of medi-pot users] has been isolated by the state of California and is policed by the state of California.'

At their best, the justices appeared confounded by the notion of wrapping either their federalist or civil-libertarian arms around the evil weed. At their worst, they appeared strung out on antiquated, fanciful stereotypes. Scalia said he had heard that there are whole 'communes' in California growing pot for their members, claiming all of it is for medicinal purposes. Justice David Souter said he doubted that medicinal users wouldn't resort to buying their pot in 'baggies' from street dealers. If the court rules in Raich's favor, Breyer asked, wouldn't the government be powerless to stop people from growing other harmful substances, like heroin, cocaine, or 'tomatoes that have genomes in them that one day will create tomato children?'

In short, after an hour of oral arguments, it wasn't clear what the justices were toking, or which way the medi-pot smoke would blow.


Win-No-Lose?

Outside the court, a gaggle of reporters and onlookers pressed close to Barnett, Raich, and Monson. 'This is the third in a trilogy of [Commerce Clause] cases. They will either affirm or reject the trilogy. This case will decide what the powers of Congress are now,' Barnett told reporters. 'It is a matter of whether federalism is really for everybody regardless of the ideological agenda' – and the specific liberties at issue. Indeed, Barnett pointed out, if the court accepts the government's logic in the Raich case, there will be few – if any – state actions that remain outside federal control. 'If the court adopts the reasoning that Congress can reach any action that has any effect on the interstate market, then they have the power to regulate everything,' he said. 'So, if you're growing tomatoes in a plant box, then you're not going to the grocery store, and that's economic.'

Ironically, the court's ruling in the Raich case may have only a nominal effect on the progress of medi-pot-related drug-law reform. Ten states have enacted medi-pot laws, most recently in Montana, where last month voters supported the measure by 62% – so far the largest showing of voter support. (In total, 26 states have recognized, in varying forms, the medical benefits of cannabis.) And regardless of the outcome of the Raich case, those laws will stand. 'There will be no effect on [those laws]; they are all still in effect. Patients [will still be] protected from arrest on the state level,' says Kampia of the Marijuana Policy Project – the only question the court must decide is what role the feds will play in the accelerating medi-pot juggernaut. 'It's a nice place to be: If we win [the case], the federal war on medical marijuana will end overnight. If we lose, we're right back where we started. So, it's a win-no-lose situation.'

Monson and Raich, on the other hand, have a great deal to lose. They're afraid – and rightly so, says Barnett – that if they lose this case, they'll become targets of federal wrath. Still, Monson said she is confident. 'I notice [the justices are] all aging. They're all going to be in some medical situation soon, so they need to be careful what they do today,' she said. 'Win or lose, the medical cannabis community is here; we're not going anywhere and the federal government had better get used to it. [They're] trying to cause fear among the medical cannabis community. The federal government should grow up and realize we have the right to live.'

A decision in the case is expected in the spring.



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