cannabisnews.com: Federal Government, Butt Out of Medical Marijuana





Federal Government, Butt Out of Medical Marijuana
Posted by CN Staff on November 18, 2004 at 14:49:59 PT
By Tim Stoddard 
Source: B. U. Bridge
It was a trial run for an important trial. Randy Barnett last week stood before a panel of “justices” inside a replica of the U.S. Supreme Court. The simulation was staged at Georgetown University’s moot courtroom, which is designed to help lawyers acclimate to the intimate setting of the Supreme Court while honing their arguments in preparation for a real hearing. The justices, a panel of Georgetown professors and lawyers, peppered Barnett with questions about the Constitution as it applies to medical marijuana. Barnett, Austin B. Fletcher Professor of Law at the School of Law, has two more moot courts before November 29, when the Supreme Court will hear his argument that it is unconstitutional for the federal government to prosecute patients who grow and use marijuana for medical purposes in California.
The high-profile case centers on whether the federal government has the power to prosecute these patients in a state with a law permitting the cultivation and use of cannabis with a physician’s consent. During the past three years the federal Drug Enforcement Agency (DEA) has been cracking down on marijuana use in California, raiding the homes and gardens of medical marijuana patients, destroying homegrown cannabis, and prosecuting individual patients. The DEA cites the federal Controlled Substances Act (CSA) of 1970, a statute based on the commerce clause of the Constitution, which grants the federal government authority to intervene in activities involving or affecting commerce between states. All “illicit drug traffic” affects interstate commerce, according to the Justice Department, because it increases demand for drugs and because drugs sold across state lines are difficult to trace to their origins.In 2002, Barnett and two attorneys brought a lawsuit in the Ninth Circuit Court in San Francisco on behalf of two patients, Angel McClary Raich and Diane Monson. Monson had had her medical cannabis destroyed by DEA officials. Raich, who uses cannabis to treat pain, nausea, and seizures associated with a brain tumor and a wasting syndrome, obtained her marijuana locally and without charge from anonymous caregivers, and Monson, who takes marijuana to relieve severe back pain and spasms caused by degenerative spine disease, grew her own cannabis. They asked for an injunction against U.S. Attorney General John Ashcroft and the DEA, claiming that their homegrown marijuana neither comes from nor enters the commercial market, does not cross state lines, and does not substantially affect interstate commerce. In a historic ruling last December, the Ninth Circuit Court held that the noncommercial use, possession, and cultivation of medical cannabis is fundamentally different from “drug trafficking.” In Ashcroft v. Raich, the Bush administration is appealing the Ninth Circuit Court ruling to the Supreme Court. The case, Barnett says, is fundamentally about federalism versus state sovereignty. “This case illustrates that having competing state and federal governments can serve to protect liberty,” he says. “These patients could not get congress to change the Controlled Substance Act, but they could get their state to permit their activity. States ought to be able to do that within the purview of their authority. Legally, that’s what this case is about.”A Call To ActionFour years ago Barnett didn’t expect his legal career would lead him into a courtroom, much less the Supreme Court. Nor did he anticipate becoming a pivotal player in the medical marijuana movement. He had been a criminal prosecutor in the Cook County State Attorney’s office in Chicago in the late 1970s, but since then has pursued a career in academic law. As an expert in constitutional law, and particularly the Ninth Amendment, Barnett became involved in a medical marijuana case in the late 1990s. When California legalized marijuana for medical purposes in 1996, the Clinton administration began prosecuting so-called cannabis cooperatives, which supply the drug to their members. The Oakland Cannabis Buyers’ Cooperative was ordered to shut down, and the trial judge asked the attorneys in the case to include in their brief a discussion of the Ninth Amendment, which states that the rights enumerated in the Constitution are not the only rights retained by the public. The lawyers for the cooperative asked Barnett to write a few pages for the brief, and his role in the case gradually expanded.When he heard about Raich’s and Monson’s situation, he and two other lawyers filed Raich v. Ashcroft in 2002, partly out of sympathy for medical marijuana patients, but also because of his concern for the Constitution. “I think that what the federal government is trying to do to these patients is unconscionable,” he says, “and I’m also very committed to the Supreme Court’s cases that since 1995 have restricted congress’ commerce clause power. That doctrine can be used here to protect these patients, and I believe in that doctrine.” Conservatives for Marijuana?The case has become an unusual test for the conservative and liberal justices on the court, Barnett says. Will conservative judges support something as progressive as medical marijuana in order to limit federal power? Conversely, will liberal justices uphold federal power, even when it means depriving patients of a potentially life-saving, or at least uniquely beneficial, medication? “If we win in this case,” Barnett says, “it’s going to be because the conservatives stick to their principles of limiting federal power. It’s going to be a test for the liberals on the court, too. Are they going to put their pro–federal power position over the health of these patients? Or will they finally say, well, maybe the federal government has a limit to its power?”Barnett foresees three possible decisions from the Supreme Court. The justices could rule against the defendants, holding that the CSA is constitutional as applied to medical marijuana, thus allowing federal agents to resume marijuana raids in the 10 states that permit doctors to prescribe medical cannabis. The high court could also rule in favor of Barnett’s clients, supporting their claim that it is unconstitutional for the federal government to use the CSA in the case of homegrown medical marijuana. Or the justices could sidestep the constitutionality debate, and rule that the statute’s wording simply does not apply to medical marijuana, thus protecting medical marijuana users. “If they take the position that the statute does apply to us,” Barnett says, “then I think that will represent a constitutional counterrevolution. It will represent the end of the effort by the court to put limits on federal power.” But Barnett is optimistic that the high court will support his argument, and rule that the CSA is unconstitutional as applied to medical marijuana. “The odds are always against winning a case like this,” he says, “because we’re asking the court to hold a long-standing federal statute unconstitutional, in whole or in part, which is always an unusual event. But I think our chances are really good. We not only have sympathetic plaintiffs on our side — we have the basic first principles of the Constitution on our side. We really have a lot going for us.”Complete Title: Law Prof To Supreme Court: Federal Government, Butt Out of Medical MarijuanaNewshawk: DruidSource: B. U. Bridge (Boston U., MA Edu)Author: Tim Stoddard Published: Week of November 19, 2004 · Vol. VIII, No. 12Copyright: 2004 Boston UniversityContact: bridge bu.eduWebsite: http://www.bu.edu/bridgeRelated Articles & Web Sites:Raich vs. Ashcroft http://www.angeljustice.org/Angel Raich v. Ashcroft Newshttp://freedomtoexhale.com/raich.htmHigh Court's Case To Affect Med Marijuana Lawshttp://cannabisnews.com/news/thread19834.shtmlRed States Weigh In As The Court Goes To Pothttp://cannabisnews.com/news/thread19821.shtmlFighting for The Right To Miracle Marijuanahttp://cannabisnews.com/news/thread19811.shtml
Home Comment Email Register Recent Comments Help




Comment #18 posted by afterburner on November 19, 2004 at 05:46:36 PT
Who Wants Yesterday Paper? 
US CA: PUB LTE: The War On Common Sense http://www.mapinc.org/drugnews/v04/n1636/a01.html?397
[ Post Comment ]


Comment #17 posted by paulpeterson on November 19, 2004 at 04:58:05 PT
where were you on 9/4/02?
On 9/4/02, I think the very day that the WAMM people got busted, at the very time, no less, I was in front of a federal judge in Chicago, arguing for a preliminary injunction (against the lawyer police taking my license away, etc.) in a case where I claimed also that the controlled substances act was unconstitutional (where a state has an MM law and there is no commerce, etc.).Later, in 2003, this same federal judge stated "obviously" I would lose on that claim. I then did a motion to dismiss my claim because "obviously" I would be better off awaiting this California case to "play through the course" since "obviously" the 9th Circuit would be slightly more liberal than this "obviously" biased judge (since arguments had already been heard on orals). The judge dismissed my claim per my motion. One week later, my same dismissed claim became the state of the law for 1/4 of our nation's land mass.Now, of course, in a few months this case will become the most talked about change in the wind on this subject in the past 34 years. States that are not known to be supportive of medical marijuana but still have these weak-kneed "TRP" statutes (treatment-research provisions) will be freed from federal fedders.Illinois, of course, has the best of these "TRP" statutes, with world class enabling language that is open ended and mandatory, in some ways.The fact that there are now 10 Illinois towns with direct decriminalization, administratively, will help-doctors will be more willing to consider MM when their patients are free from criminal taint (as where the guns are no longer drawn).I thank the activist groups on the West coast for picking up this gauntlet just in time. For instance, if my claim had gone to trial in Chicago first, "obviously" when the case got to SCOTUS, we would not be graced with a win in the circuit court level, with DOJ appealing, but the other way around. It looks a lot better from this side of the lense to me. Thanks again. PAUL PETERSON
[ Post Comment ]


Comment #16 posted by Hope on November 18, 2004 at 23:57:52 PT
Graham Kerr's pleasant face
You know, the more I think about his smiling face, that wine business could have been a cover for a more illegal smile.Hmmm. I wonder.
[ Post Comment ]


Comment #15 posted by Hope on November 18, 2004 at 23:54:53 PT
E Johnson
The Galloping Gourmet was great. That wonderful smile and glowing face he had. He was so entertaining. I learned a lot from him, too, as I remember about chopping onions and smashing garlic. He had this great soup made of vegetable peelings, too. I made the Baked Alaska, too. It was kind of scary and fun. His was and has remained my all time favorite cooking show.I'm about to give it up for tonight. It's nearly two am here. It's just the middle of the night instead of the morning out there in California. I really liked the comment you made on this thread or another about the opera or symphony for Magbie and the feature length film about Rainbow Farm. It should happen.
[ Post Comment ]


Comment #14 posted by E_Johnson on November 18, 2004 at 23:35:18 PT
I have a confession
I never took home ec but when I was eight I used to cut school to watch a daytime cooking show on TV. The Galloping Gourmet.I learned how to make Baked Alaska from him. He was drunk all the time. Then he had a heart attack and found Jesus, and his show went off the air because the food stopped being so sinful.
[ Post Comment ]


Comment #13 posted by Hope on November 18, 2004 at 22:59:44 PT
better than last night I hope
I hope you have a peaceful night tonight and rest well.Thank you.You're amazing.
[ Post Comment ]


Comment #12 posted by FoM on November 18, 2004 at 22:54:28 PT
Common Sense
One thing I learned in school is that I didn't learn anything that has helped me in my life. Maybe the one year of typing I took helped. I'm calling it a day. I have everything dowloaded and installed except an ftp program and two more programs I use. This computer has been very smooth running and no problems which is great in my book. I couldn't post for a while today but now I can. I changed a setting and maybe that was the problem. 
[ Post Comment ]


Comment #11 posted by Hope on November 18, 2004 at 22:41:17 PT
"one that I'll wear"
I just caught that. Yes...I thought that about the dress I was making, too. "I wouldn't make my baby wear this thing!", I thought.
[ Post Comment ]


Comment #10 posted by Hope on November 18, 2004 at 22:39:09 PT
Why?
Lol!I've always been big on asking "Why?", too.That trait, no doubt, has a lot to do with why we are here.
[ Post Comment ]


Comment #9 posted by FoM on November 18, 2004 at 22:32:44 PT
Hope
I thought why should I make a dress when I can go to the store and buy one that I'll wear! I liked the cooking part and did ok but the sowing was really bad. 
[ Post Comment ]


Comment #8 posted by Hope on November 18, 2004 at 22:25:03 PT
Home Ec
That's funny, FoM. I graduated second in my class without trying very hard and I made the lowest grade of my entire highschool career the last six weeks of Home Economics. We had to hand make an infant's hand smocked and pintucked batiste dress. I just bowed up on that one. Refusing to spend hours completing that dress on my home time, along with everything else I had to do, nearly brought my average too low to be salutatorian.
[ Post Comment ]


Comment #7 posted by FoM on November 18, 2004 at 21:20:30 PT
Slow, Slower as Slow as Possible
It sure seems like a long time that we have been fighting this fight. We're getting there but if it takes much longer I might pick up my life long desire to learn to knit. Knit one, pearl two or something like that! LOL!No not really. I flunked Home Economics in school. LOL!
[ Post Comment ]


Comment #6 posted by goneposthole on November 18, 2004 at 20:55:03 PT
oh boy
The wheels of justice do grind slow.The DEA should get out of the doctoring business.
[ Post Comment ]


Comment #5 posted by Siege on November 18, 2004 at 16:50:32 PT
USA TODAY
USA TODAY
PANEL WARNESD ABOUT 5 OTHER DRUG  FDAhttp://www.pressdisplay.com/pressdisplay/viewer.aspx
[ Post Comment ]


Comment #4 posted by E_Johnson on November 18, 2004 at 16:23:34 PT
What about the other studies
There are several studies showing that cannabis use is associated with a better outcome from Hep C therapy.How could that be true then?
[ Post Comment ]


Comment #3 posted by global_warming on November 18, 2004 at 16:06:58 PT
Some Thoughts
"Barnett foresees three possible decisions from the Supreme Court. The justices could rule against the defendants, holding that the CSA is constitutional as applied to medical marijuana, thus allowing federal agents to resume marijuana raids in the 10 states that permit doctors to prescribe medical cannabis. The high court could also rule in favor of Barnett’s clients, supporting their claim that it is unconstitutional for the federal government to use the CSA in the case of homegrown medical marijuana. Or the justices could sidestep the constitutionality debate, and rule that the statute’s wording simply does not apply to medical marijuana, thus protecting medical marijuana users. “If they take the position that the statute does apply to us,” Barnett says, “then I think that will represent a constitutional counterrevolution. It will represent the end of the effort by the court to put limits on federal power.”The two edged sword has always been a problem, I hope the Conservatives learn how to separate the baby from the bathwater. Further, the Liberals, who also have families and ties to Gods world, should not continued to be demonized, by this austere and emotionless body called the Conservatives.We are all children of God, and though some of us do not accept the religious precepts, we can all come together and agree that the problems of our world, ultimately reflect into the heart and soul of every living person in this world, from the cores of our families, our children, we all can agree that we want a better world for our children.This current hearing of the Supreme Court, should reflect the needs and understandings of our current population, it has always been the agreed common understanding, that is what set America apart from so many other Nations and Cultures, was the ability to be flexible and to embrace the needs of the people by the people.Federal Power, ultimately gets its power from the people, the little man, if the scales of Justice listen to the greedy and power lusting few, then the majority will be ignored, and though our bellies might be filled, our souls will be empty and undernourished, starvation is not only calorie based, it can reach into the heart and soul.
[ Post Comment ]


Comment #2 posted by Druid on November 18, 2004 at 15:54:27 PT
I saw that french study....
They say that the liver has things called CB1 receptors and that cannabinoids clog them up or some such nonsense. :)I do believe we hae CB1 receptors throughout our entire bodies not just the liver :)
[ Post Comment ]


Comment #1 posted by siege on November 18, 2004 at 15:50:58 PT
 French study
Cannabis accelerates hep c liver damagehttp://www.planetout.com/health/hiv/?sernum=3046
[ Post Comment ]


Post Comment