cannabisnews.com: MMJ Case Puts Supreme Court in Curious Spot





MMJ Case Puts Supreme Court in Curious Spot
Posted by CN Staff on November 30, 2004 at 19:36:05 PT
By Michael McGough, Post-Gazette National Bureau
Source: Post-Gazette 
Washington -- A lawyer for two women who use marijuana as a painkiller told the U.S. Supreme Court yesterday that the federal government has no constitutional authority to outlaw the cultivation of the drug for medical use within a state. He urged the justices to uphold a federal appeals court decision protecting his clients from prosecution for what is a recognized medical treatment under California law and in 10 other states.
But the Bush administration's top courtroom lawyer countered that the ban on the possession of marijuana contained in the federal Controlled Substances Act was a legitimate use of Congress' constitutional authority to regulate interstate commerce even in light of recent Supreme Court decisions placing limits on that power.Yesterday's argument combined poignant facts -- one of the women who challenging the federal law, Angel McCleary Raich, suffers from several life-threatening conditions, including an inoperable brain tumor -- and technical issues about the interplay of state and federal law."This activity is non-economic and totally intrastate," said Boston University law professor Randy E. Barnett, who represented Raich and Diane Monson, who uses marijuana to ease pain from a degenerative disease of the spine.Barnett said that the enforcement of federal laws against the medical use of marijuana was "not part of a larger regulatory scheme" and had only a trivial impact on the illegal marijuana trade. "We are talking about a small number of people," Barnett said.But acting U.S. Solicitor General Paul D. Clement told the court that "any little island of lawful possession [of marijuana] poses a real challenge to Congress' regulatory regime," and several justices agreed."There is an enormous common market" in marijuana, Justice Anthony Kennedy told Barnett. "The simple possession of that commodity is participation in that market."Justice David H. Souter, noting that as many as 100,000 patients in California might want to use marijuana for medical purposes, said: "The sensible assumption is that they're going to get it on the street."When Barnett protested that ill people would have no incentive to obtain marijuana "on the street," Souter responded: "If I'm sick, I'll say, 'They don't prosecute kids for [purchasing] marijuana. Why would they prosecute me?' " Yesterday's arguments focused less on whether smoking marijuana offers unique medical benefits -- for example, in the alleviation of the side effects of chemotherapy -- than on whether Congress and the Food and Drug Administration have the authority to override state decisions to the contrary."I don't know if it's true that medical marijuana is helpful to people in a way that pills are not," Justice Stephen Breyer told Barnett, "but if your clients take that position they can go to the FDA, and if they lose they can go to [federal] court and claim an abuse of discretion by the agency."Referring to the fact that medical marijuana was legalized by California's voters, Breyer added: "Medicine by regulation is better than medicine by referendum."Much of the interest in this case among lawyers stems from the dilemma it seems to pose for conservative justices who in recent years have placed limits on Congress' power under the Constitution's commerce clause. For example, in 1995, a majority consisting of Kennedy, Chief Justice William Rehnquist and Justices Antonin Scalia, Sandra Day O'Connor and Clarence Thomas struck down an act of Congress that made it a crime to possess a gun on school property.In the majority opinion in that case, Rehnquist said that the gun law "neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce."But yesterday two members of the majority in the gun case -- Scalia and Kennedy -- indicated that they thought the constitutionality of the Controlled Substances Act should be governed instead by a 1942 precedent, Wickard v. Filburn. In that case, the court upheld a federal quota system for wheat farmers even if the wheat were grown for home use, reasoning that purely in-state cultivation could still affect the national market."This sounds like Wickard to me," Scalia told Barnett.Barnett received some encouragement from O'Connor, who pressed Clement about how he could distinguish this case from the court's recent federalism decisions. Thomas, who as usual did not ask questions yesterday, is a strong proponent of state's rights who mentioned the 1942 decision in an opinion lamenting that "our case law has drifted far from the original understanding of the Commerce Clause."If O'Connor and Thomas voted to affirm the ruling of the 9th U.S. Circuit Court of Appeals and were joined by Rehnquist -- who will participate in deciding the case despite his absence yesterday because of illness -- and Justices John Paul Stevens and Ruth Bader Ginsburg, there would be a 5-4 vote against the U.S. government's position. Yesterday Stevens and Ginsburg seemed open to Barnett's argument that the intrastate growth of marijuana for medicinal use was a special case. Ginsburg noted that "nobody's buying anything -- nobody's selling anything."Rehnquist, however, may be less sympathetic. He cited the 1942 decision in his majority opinion striking down the federal law against the possession of guns in schools. Unlike the possession of a firearm, he wrote, the cultivation of wheat involved "economic activity" -- and he might well say the same about the cultivation of marijuana. Complete Title: Medical Marijuana Case Puts Supreme Court in Curious SpotSource: Pittsburgh Post-Gazette (PA)Author: Michael McGough, Post-Gazette National BureauPublished: Tuesday, November 30, 2004Copyright: 2004 PG PublishingContact: letters post-gazette.comWebsite: http://www.post-gazette.com/Related Articles & Web Sites:Raich vs. Ashcroft http://www.angeljustice.org/Angel Raich v. Ashcroft Newshttp://freedomtoexhale.com/raich.htmMedicinal Marijuana Gets Court Skepticismhttp://cannabisnews.com/news/thread19928.shtmlThe Supremes Debate Medical Pothttp://cannabisnews.com/news/thread19926.shtml
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Comment #1 posted by FoM on November 30, 2004 at 19:51:47 PT
A Constitutional Case for Medical Marijuana
Op/Ed - Maggie Gallagher 
 November 30, 2004Hard cases make bad law, the old adage goes. But in the case of Ashcroft v. Raich, the medical marijuana case recently argued before the U.S. Supreme Court, the opposite may turn out to be true: A hard case may lead to a revival of a key principle of constitutional government: Congress has only limited powers over the states. Angel Raich's case is certainly a hard one, at least if you believe her account. Smoking marijuana keeps her alive and able to care for her daughter. Without it she couldn't eat or get out of a wheelchair, the pain and nausea of her brain tumor and other illnesses were so bad. Medical authorities may dispute her claim (and her doctor has made medical marijuana consultations a suspiciously large part of his practice), but in law the case turns on an entirely different question: Not whether medical marijuana is effective or not, but whether growing marijuana in your own home for your own medical use constitutes "interstate commerce." Do federal laws banning marijuana usurp California's state law permitting homegrown medical marijuana? The glitch is a 1942 case, Wickard v. Filburn, in which a federal law limiting wheat production was held up, banning Mr. Filburn from growing and using wheat on his own farm, on the grounds that if you added up all the wheat grown and consumed on family farms, it might have an indirect effect on interstate commerce (i.e., the wheat that might have been sold across state lines if they hadn't grown and consumed their own wheat). By this tortuous logic, the Supreme Court transferred to Congress the right to tell a farmer what he could grow and eat on his own property. So expansive was this reading that for 30 years, any law passed by Congress was held to automatically qualify as "interstate commerce" because just about any act could potentially affect commerce, however indirectly. Which is why Justice Souter in the oral arguments focused on the potential volume of marijuana that could be grown and consumed by sick people in California. (I've condensed the argument from legal scholar Lawrence Solum's report on his legal theory blog: www.lsolum.blogspot.com.) Justice Souter is questioning Ms. Raich's lawyer, Randy Barnett: Justice Souter: Suppose that 100,000 people are in chemotherapy in California. Then couldn't there be 100,000 users of medical marijuana? Barnett: There could be. ... Wickard v. Filburn's aggregation principle does not apply if the activity involved is noneconomic. Justice Souter: But isn't it economic activity if it has a sizable effect on the market? Barnett: No. The effect on the market is only relevant if it is market activity. ... The point is that economic activity and personal liberty are two different categories. Justice Souter: That is not a very realistic premise. Barnett: The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic. Barnett is right, of course: Sex within marriage is not economic activity, and therefore regulating it is not regulating "interstate commerce" even though marital sexual activity may affect say, the purchase of lingerie, sheets or even prostitutes. So is growing marijuana in your own home for your own medical consumption "interstate commerce," as the government alleges? I think the answer is clear: No, it isn't. Therefore Congress has no power to restrict Ms. Raich's personal consumption activity, no matter how much you or I or a majority of voters disapprove off the California law that permits it. As conservatives control national government, liberals (including those on the Supreme Court) may in general acquire a newfound respect for the virtues of at least some constitutional restrictions on the power of the federal government. Perhaps. http://story.news.yahoo.com/news?tmpl=story&cid=115&ncid=742&e=6&u=/ucmg/20041130/cm_ucmg/aconstitutionalcaseformedicalmarijuana
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