cannabisnews.com: Pot Case Heard At The Top





Pot Case Heard At The Top
Posted by CN Staff on November 30, 2004 at 08:32:47 PT
By Josh Richman, Staff Writer
Source: Oakland Tribune 
Washington, D.C. -- Lawyers for the government and for an Oakland woman sparred with Supreme Court justices Monday on whether Congress should butt out of medical marijuana use in California and other states with "compassionate use" laws. At issue is the constitutionality of the Controlled Substances Act, the federal law banning all marijuana despite 10 states' statutes allowing its use as medicine.
An attorney for Angel Mc Clary Raich of Oakland, Diane Monson of Oroville and two unnamed growers who supply Raich with marijuana claimed the ban exceeds Congress' authority to regulate interstate commerce because their marijuana neither crosses state lines nor involves any money chan ging hands. The government's lawyer claimed individual possession and use of the drug cumulatively affects the illegal national marijuana market and so can be prohibited by federal law. And mak ing an exception for medical use unapproved by Congress could send the whole federal anti-drug effort up in smoke, he said. The court will render a decision by mid-2005, and it's not an easy one to predict. The justices aren't likely to sign off on any sort of marijuana use light ly, but by framing this as an issue of states' rights, Raich and Monson offered up an argument that could be palatable to conservatives concerned with curb ing federal powers. Generally, Justices Sandra Day O'Connor and Ruth Bader Ginsburg seemed sympathetic Monday, while Antonin Scalia and Stephen Breyer seemed less inclined to agree. Raich, 39, says she suffers from scoliosis, temporomandibular joint disease, endometriosis, fibromyalgia, a uterine fibroid tumor, a rotator cuff injury, an inoperable brain tumor, post-traumatic stress disorder from childhood abuse and nonepileptic seizures. The pale, thin mother of two insists she'll quickly wither and die without using marijuana every two hours to blunt her pain and boost her appetite. Monson, 47, says she uses marijuana to control chronic back pain. When her home was raided in August 2002, local deputies and a local prosecutor agreed her six marijuana plants were within county guidelines under state law, but federal agents took the plants without charging her with any crime. Raich and Monson prevailed last year before the 9th U.S. Circuit Court of Appeals with this "commerce clause" argument, winning a preliminary injunction against federal raids or prosecution for themselves and others similarly situated. The government sought the Supreme Court's review, so it was Acting Solicitor Gen eral Paul Clement who spoke first Monday. He said it's "a bit optimistic" to assume none of California's medical marijuana will ever be bought or sold or cross state lines. The state probably will have no more success enforcing these requirements than the federal government has had in eradicating marijuana's widespread recreational use, he said. O'Connor asked whether the government was creating too long of a "causal chain" from local, personal medical marijuana use to reach an effect upon interstate commerce, but Clement insisted he's not bootstrap ping. If Raich and Monson win, he said, many hundreds of thousands of people could grow and use marijuana as medicine, causing them to stop buying it on the street, causing the supply for illicit users to exceed the demand, causing street prices to drop and availability to increase -- something Congress must be able to nip in the bud. Questioned by Justice Anthony Kennedy, Clement contended carving out an "island" of protected marijuana use from the federal ban makes the overall ban hard or impossible to enforce. "If they're right, I think their analysis would extend to recreational use of marijuana, as well as medical use of marijuana, and would extend to every state in the nation, not just those states that made it lawful," he said. But Boston constitutional law expert Randy Barnett, arguing on behalf of Raich and Monson, insisted local, personal medical marijuana use neither significantly affects the national, illicit marijuana market nor undercuts the government's ability to control recreational use of this and other drugs. Still, Breyer wondered why a rul ing for Raich and Monson wouldn't lead to falling marijuana prices and a situation in which "everybody will say, 'mine is medical.'" He suggested that instead of suing the government as Raich and Monson did, perhaps patients should try to convince the government to ease its ban on marijuana. "That would seem to me to be the obvious way to get what they want," he said, adding "medicine by regulation is better than medicine by referendum." And Justice David Souter said there's no reason to believe every medical marijuana user will use the drug himself or herself, or get it free from a friend. "It seems to me the sensible assumption is that they'll get it on the street," the justice said -- that's commerce, and often involves marijuana moved across state lines. Outside on the court's steps, and later in a news conference nearby, Barnett, Raich and Monson were mobbed by media and by supporters. A few medical marijuana foes stood nearby as well, holding signs with slogans such as "1000 drug-related deaths a week -- most began with pot" and "182,000 kids in treatment for pot problems! That's NOT medicine!" Some supporters tried to read meaning into Justice Clarence Tho mas' silence on the bench, or deba ted whether the absent Chief Justice William Rehnquist will gain some new perspective on this case from his ongoing battle with thyroid cancer. Both justices have been states' rights proponents in the past. No matter how the court rules, Raich said, Washington should "grow up" and stop stonewalling efforts to ease restrictions on the drug. "The medical cannabis community is here, we're not going away, and the federal government had better get used to it," she said. Later yet, in a 15th-floor hotel room with a panoramic view of the Capitol and redolent of marijuana, a television camera rolled tape as Raich used a makeshift vaporizer -- a toolbox heat gun with a special valve and plastic-bag attachment -- to medicate herself, and then eat a few bites from a big plate of pasta. The marijuana Raich used before and after court Monday was procured in Washington, said her husband, attorney Robert Raich -- it wasn't brought across state lines, and it was given to her for free. He said it's not often a lawyer hears the Supreme Court debating his own family's health, but he's confident they've put forth the best case possible. "I have done everything possible within my power, as a husband and as a lawyer, to secure the health of my wife," he said. Angel Raich insists she doesn't get high from using marijuana and doesn't even like it -- apart from its role in keeping her alive. She believes at least some of the justices recognized Monday that she sees this as a life-and-death struggle. Jeff Jones, executive director of the Oakland Cannabis Buyers Cooperative, arrived outside the court about 5 a.m. Monday to ensure he'd get a ticket for the 10 a.m. arguments. Blanket-wrapped and shivering, Jones said no matter how the court rules now, the medical marijuana movement will move forward. He cited the OCBC's unsuccessful 2001 Supreme Court case, in which the court found clubs and cooperatives can't claim a medical necessity exception to the Controlled Substances Act -- yet today, Oakland is rife with medical marijuana cafes and dispensaries. "I lost 8-0, and look at my town now," Jones said.Note: Oaklander finds a little sympathy on Supreme Court, but next year's ruling is tough to predict.Source: Oakland Tribune (CA)Author: Josh Richman, Staff WriterPublished: Tuesday, November 30, 2004Copyright: 2004 MediaNews Group, Inc. Contact: triblet angnewspapers.com Website: http://www.oaklandtribune.com/Related Articles & Web Sites:Raich vs. Ashcroft http://www.angeljustice.org/Angel Raich v. Ashcroft Newshttp://freedomtoexhale.com/raich.htmHigh Court Must Take Lead in MMJ Debatehttp://cannabisnews.com/news/thread19917.shtmlIt's State Law vs. Federal Law in MMJ Casehttp://cannabisnews.com/news/thread19913.shtmlStates' Rights Defense Falters in MMJ Casehttp://cannabisnews.com/news/thread19912.shtml
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