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Supreme Court on Medical Marijuana 
Posted by FoM on September 01, 2000 at 17:26:38 PT
By Alan Bock
Source: WorldNetDaily
So many news stories didn't get the recent Supreme Court decision on medical marijuana quite right that it is worth emphasizing the point. The court's decision to issue a temporary stay of U.S. District Court Judge Charles Breyer's amended injunction that would have allowed the Oakland Cannabis Buyers' Cooperative to distribute medical marijuana to patients who meet a tough "medical necessity" test does not invalidate California's Proposition 215, which allows the medical use of marijuana. 
Nor does it signal that the high court is likely to invalidate the California law or the similar laws passed by voters in other states. The reason is simple. Despite all the rhetoric tossed around about those laws conflicting with federal law and federal law being supreme, none of those laws have been challenged in court, on any grounds. The U.S. Supreme Court cannot invalidate a state law unless it has a case before it. California's law remains on the books as Section 11362.5 of the Health and Safety Code. It is still the law in this state, as similar laws are still the law in other states. The case the Supreme Court was asked to consider was brought under federal law. The Supreme Court might eventually have to decide the rather narrow issue of whether, under federal anti-marijuana laws, a medical-necessity defense would allow not only the possession and use but also the distribution of marijuana to people with serious illnesses. But until a court challenge against state medical marijuana laws is filed which is unlikely because despite some talk about their having been written sloppily they were carefully crafted not to conflict with federal law, the Supreme Court will not have any opportunity to invalidate those laws. And it is far from a certainty that it would do so if given the opportunity. Meanwhile, as Robert Raich, attorney for the Oakland cooperative, told me, this Supreme Court decision is "a bump in the road, not the end of the road." It certainly highlights the cruelty of the Clinton-Gore administration's approach to medical marijuana, suggests that the Supreme Court rather thoughtlessly acceded to the federal government rather than examining whether it had even a scintilla of a case and is likely to have a chilling effect on the 35 other cooperatives in the state. But it doesn't stop them, nor does it affect California law in any way. The only justice to dissent from the decision to stay the amended injunction was Justice Stevens, who showed evidence of actually having thought about it. "Because the applicant (the federal government) in this case has failed to demonstrate that the denial of necessary medicine to seriously ill and dying patients will advance the public interest," he wrote, "or that the failure to enjoin the distribution of such medicine will impair the orderly enforcement of federal criminal statutes, whereas respondents have demonstrated that the entry of a stay will cause them irreparable harm, I am persuaded that a fair assessment of that balance favors a denial of the extraordinary relief that the government seeks." The government had stated without offering any proof that allowing distribution of cannabis to patients who met a medical-necessity test would undermine enforcement of federal drug laws. Attorneys for the patients not only noted the harm they would suffer if denied effective medicine, but offered statistics showing that arrests for recreational marijuana use, at both the state and federal level, had risen since the passage of Prop. 215, despite numerous distribution cooperatives being in operation. But the other seven justices -- Stephen Breyer, who is Charles Breyer's brother, recused himself -- simply let the government have what it wanted. A Federal History: The Supreme Court decision arises from a civil suit filed by federal authorities under federal law in 1998 against the Oakland cooperative and six other northern California cannabis cooperatives. Judge Breyer, a federal judge, in that case enjoined the clubs against distributing cannabis as being inconsistent with federal law, though he was careful to note that "The Court has not declared Proposition 215 unconstitutional." The Oakland club complied and appealed to the federal Ninth Circuit appeals court. That court directed Judge Breyer that under federal law medical necessity is a "legally cognizable defense" and ordered him to rehear the case with that in mind. He did so and modified his injunction accordingly in July, setting forth a tough four-part test of medical necessity that is much stricter than California law requires. The federal government appealed, and asked the U.S. Supreme Court to stay his injunction until the Ninth Circuit decides the appeal. The decision to grant the stay was procedural in nature and did not deal with the merits of the case. As both Mr. Raich and California Attorney General Lockyer -- who was in our offices for an editorial board meeting recently at the Orange Country Register -- agreed, it would have been not unprecedented but still rather unusual for the Supreme Court not to grant the request. Lockyer did write to U.S. Attorney General Janet Reno urging the federal government not to contest the Ninth Circuit's medical-necessity decision. He told me his office is conferring with attorneys general in other Western states to see if a cooperative effort to influence the case -- whether an amicus curiae brief or some other intervention -- can be developed. He told me that he prefers to organize a united front among state AGs but says his office will file in the case whether other states do so or not. Implementation Spotty at Best: Mr. Lockyer could have done a good deal more. He says he has told local law enforcement officials that once he came into office the restrictive guidelines for complying with Proposition 215 promulgated by his predecessor Dan Lungren -- which amounted to make arrests if you have any doubts and let the courts sort things out regardless of the inconvenience and cost imposed on patients -- would be done away with. But he has not formally rescinded those guidelines or put together guidelines of his own. He told me Wednesday that he believes in local control with minimal interference from the AG's office. That's fine in most cases, but in practice it means patients don't know if they can carry their medicine across county lines. A practice recognized or even encouraged in one county can lead to arrest and prosecution in another county. With all due respect for localism, local law enforcement officials might have benefited from some guidance by the attorney general when confronted by the necessity to implement a new law most of them had opposed and few of them understood. Mr. Lockyer has also declined to throw his weight behind certain efforts to get the federal law changed. John Gettmann of Virginia has filed a petition with the feds to take marijuana off Schedule I of the Controlled Substances Act, reserved under the law for substances with no known medical value, a high potential for abuse and no ability to be administered safely under medical supervision. Obviously marijuana doesn't fit that category. It should be taken off the schedule altogether or transferred to a schedule that allows physicians to prescribe it. When I mentioned Mr. Gettmann's petition to Mr. Lockyer Wednesday and asked if he would file a brief or send a letter urging constructive action, he said he hadn't been aware of it. I have discussed it with his medical marijuana "point man" on several occasions. Why wasn't Lockyer made aware that federal rescheduling which he has said he favors was under active consideration and that a nudge from him might help the cause? A Supreme Decision: Besides predicting that the Supreme Court's decision to grant the feds' request presaged an invalidation of medical marijuana laws in California and other states -- an impossibility given the current condition of litigation, as we have seen any number of news stories -- suggested that it presaged a Supreme Court decision to take the case directly rather than let the Ninth Circuit handle it and wait for an appeal before taking it on its own. Neither Robert Raich -- who as the Oakland cooperative's attorney might have a somewhat biased view -- nor Bill Lockyer thought that was likely. Lockyer told me that the high court doesn't yet face a situation of disagreement among federal circuits, which is what usually leads it to expedited review. The Ninth Circuit has made a decision and is scheduled to revisit it. No other circuit has considered the issue. In addition, the Supreme Court is unlikely to be eager to jump with both feet into this controversial and politically charged issue unless it has little choice. Given the petition for rescheduling, for example, the entire issue of medical necessity could become moot in the next year or so if marijuana is rescheduled so it can be treated like other (many of them much more dangerous) prescription drugs. Furthermore, as I and a few others have noted, the Supreme Court seems to be in the throes of a large-scale reconsideration of federal government power. A couple of years ago, in the process of invalidating the ill-considered Gun-Free Schools Act in the Lopez case, Chief Justice Rehnquist began his opinion thus: "We start with first principles: this is a government of enumerated and therefore of limited powers." In that case and in several others, the court has declared that the Constitution's commerce clause -- the rationale since the New Deal for massive growth in federal power -- gives Congress great power but not unlimited power. If and when the Oakland Cannabis case gets to the Supreme Court, lawyers will be able to cite Mr. Rehnquist's opinion about enumerated powers. Article I, Section 8, of the Constitution, which enumerates the federal government's powers, does not include authority to prohibit or even to regulate drugs or plants. A constitutional amendment was considered necessary to allow the federal government to prohibit beverage alcohol. Where is the enumerated power to prohibit marijuana? The Supreme Court -- life tenure or no -- is not likely to want to have to face the possible contradictions. Is it serious about trimming federal power and reaffirming states' rights? Or will it affirm federal supremacy in an area not included among the enumerated powers? Will it be consistent with its current proclivities at the price of being accused of being "soft on drugs?" It's hard to believe it is eager to confront such questions directly if it can avoid it. A number of drug policy reformers have been disheartened by this decision and most news media have read into it more than is there. But it's not as disastrous as it seems at first blush. The bottom line is that California's medical marijuana law remains in place and unchallenged. Attorney General Lockyer, while he hasn't done as much as I might like to implement it, acknowledges that his duty is to defend what the voters enacted. Federal law might or might not eventually acknowledge a medical-necessity defense -- or change the way marijuana is "scheduled" under the Controlled Substances Act. Final resolution of any of these matters is a long way off. And the politicians might eventually notice that the American people, every time they are polled or have an opportunity to vote, have made it clear that they want marijuana to be available to sick people as a medicine. Supreme Court on Medical Marijuana - WorldNetDaily http://www.worldnetdaily.com/bluesky_bock/20000901_xcabo_supreme_co.shtml Author: Alan W. Bock Published: Friday, September 1, 2000 Source: WorldNetDaily (US Web)Copyright: 2000, WorldNetDaily.com, Inc.Contact: letters worldnetdaily.comAddress: PO Box 409, Cave Junction, OR 97523-0409Fax: (541) 597-1700Website: http://www.worldnetdaily.com/Related Articles & Web Site:Oakland Cannabis Buyer's Cooperativehttp://www.rxcbc.org/Official Reefer Madnesshttp://cannabisnews.com/news/thread6894.shtmlFeds' Needless Pot War http://cannabisnews.com/news/thread6889.shtmlCourt Sends Firm Signal on Marijuanahttp://cannabisnews.com/news/thread6886.shtmlCannabisNews Medical Marijuana Archives:http://cannabisnews.com/news/list/medical.shtml 
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Comment #3 posted by freedom fighter on September 02, 2000 at 09:03:36 PT
More news from Alaska!
Marijuana measure to be debated A debate on a ballot proposition to legalize marijuana will take place tonight at the Anchorage Museum of History and Art. Ballot Measure No. 5, which Alaska voters will decide in November, would abolish criminal and civil penalties for adults who possess or distribute marijuana or other hemp products and provide amnesty for those previously convicted. Arguing for the ballot measure will be two out-of-state authors, Chris Conrad and Mikki Norris. Free Hemp in Alaska, one of the campaigns urging passage of Measure No. 5, describes them as marijuana experts. Conrad has written about the benefits of industrial hemp and marijuana. Norris has written "an expose of victims of America's war on drugs," the campaign said. They will debate Anchorage lawyer Wev Shea, a former U.S. attorney for Alaska. The event begins at 7 p.m. 
http://www.adn.com/metro/story/0,2633,191342,00.html
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Comment #2 posted by Dr. Ganj on September 02, 2000 at 00:19:30 PT
Complicated, but a lot clearer
This article written by Mr. Alan Bock explains this legal mess very well, indeed. After reading it twice, slowly I might add, it is not as bad as I thought it was. Evidently, it is going back to the 9th circuit for review. If they affirm, then the DOJ will appeal THAT, and here we go some more. This just means this chess match of medical cannabis is going to be quite protracted, and many other more important legal marijuana issues will have occurred by the time this appeal is settled. So there we have it spelled out. 215 is unchallenged, clubs are still dispensing, more states this fall are going to vote for medical marijuana, and Canada is going decrim within a year. Pressure is building, and as this makes more news, it makes more people aware that they want a change in their marijuana laws. I wonder what the feds are going to do about all the new medical marijuana laws this fall? Ha!Dr. Ganj
http://www.gov.state.ak.us/ltgov/elections/petitions/99hemp.htm
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Comment #1 posted by kaptinemo on September 01, 2000 at 18:23:10 PT:
The fraud revealed
...Chief Justice Rehnquist began his opinion thus: "We start with first principles: this is a government of enumerated and therefore of limited powers." In that case and in several others, the court has declared that the Constitution's commerce clause -- the rationale since the New Deal for massive growth in federal power -- gives Congress great power but not unlimited power. 'If and when the Oakland Cannabis case gets to the Supreme Court, lawyers will be able to cite Mr. Rehnquist's opinion about enumerated powers. Article I, Section 8, of the Constitution, which enumerates the federal government's powers, does not include authority to prohibit or even to regulate drugs or plants. A constitutional amendment was considered necessary to allow the federal government to prohibit beverage alcohol. Where is the enumerated power to prohibit marijuana?'Here it is. Right there in front of you. The main historical fact that underpins the entire matter. Every anti-drug law since 1914 has been derived from the commerce clause. Remember, the 1937 law on Cannabis was named the Marijuana Tax Act. Tax. The antis of the day allowed the law to be twisted from it's original intent of punitive taxation and stonewalling in processing of authorization stamps to the hideous mutation that it is today. One of many facts that will have to be brought to the Supremes' attention.
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