Anything can be sold. So, the good judge is saying that anything can be banned by the federal government? Are you confortable with that potential? 
Posted on 04/25/2004 1:53:10 PM PDT by Wolfie
Medical Pot Group Basks in Victory, Eyes New Harvest
Valerie Corral had just finished a conversation with an ill friend Wednesday when the phone rang. This time there was good news, unlike much of what had come over the past two years.
In September 2002, her medical marijuana garden was raided by federal agents who confiscated 167 plants. This was followed by months of scrapping together marijuana for the 250-member Wo/men’s Alliance for Medical Marijuana.
This week’s news: U.S. District Court Judge Jeremy Fogel issued the injunction that WAMM had sought barring future raids by the federal government like the one that occurred that September morning at her Davenport garden.
"It was pretty weird," Corral said. "I immediately called (husband) Mike."
Last week’s ruling is another chapter in WAMM’s life. The group had seen a rise in its legitimacy, at least locally, only to then face persecution by the federal government.
The federal government contends medical marijuana rules in states that have them, like California, are trumped by federal rules, which bar marijuana under almost any circumstance. But the recent case didn’t involve a conflict of states’ rights.
The case was decided based on the application of interstate commerce laws in the U.S. Constitution.
The stage was set late last year when the U.S. 9th Circuit Court of Appeals, in a separate case, ruled that the 1970 Controlled Substances Act may not apply to medical marijuana users if the marijuana isn’t being bought or sold and not being transported across state lines. Should the latter occur, the interstate commerce clause of the Constitution would apply.
The decision offered a ray of hope for WAMM, a cooperative in which members grow marijuana for one another and no money changes hands. Attorneys for the group used the ruling in their quest of an injunction against future raids.
For now, the Corrals and WAMM colleagues can bask in a tempered victory — one they know could be fleeting and one that frees many of them to concentrate on more pressing matters, like living with chronic illness.
"One minute you are looking over your shoulder and wondering what next might come that will cause more suffering and loss," Corral said by phone.
"With this decision comes the greatest gift. For this time, we don’t have to be afraid," she added.
However, WAMM members and their attorneys know that the victory is tenuous, a fight expected to go all the way to the U.S. Supreme Court.
The government admittedly continues to examine Fogel’s decision and plot its next move.
"We’re reviewing the court’s opinion and we’ve made no determination," Justice Department spokesman Charles Miller told the Sentinel Friday.
Mike Corral said the group would now plant its medicinal herb garden and operate as it used to.
"We’re going to go ahead and plant a garden," Mike Corral said. "The need is there, it’s real."
Santa Cruz attorney Ben Rice, a member of WAMM’s legal team, said the ruling should give the cooperative enough time to make it through a harvest this fall.
"We’re at least a year and a half, maybe two years, from anything happening," Rice said. "I think they are good through the summer of 2005."
While Tuesday’s decision breaks new ground, so do the origins of the suit. The city and county of Santa Cruz took the unusual step of joining the cooperative as plaintiffs.
"There was no hesitation on the Board of Supervisors in supporting this suit," Supervisor Mardi Wormhoudt said. "I think we all saw it as a question of patient rights. I am proud the county signed on because it was a strong suit."
Valerie Corral said that support from the community is humbling.
"It takes a lot of trust," she said. "Mike and I both hope we can live up to that. It’s so important for us to be clean and clear and transparent and truthful. WAMM can only do this because of our community."
More correct would be, "When a three-judge panel of the U.S. 9th Circuit Court of Appeals, the most overturned appellate court in the U.S., ..." The full appellate court refused to consider it.
AND, one of the three judges dissented. Which means that two lower court judges arrived at a ruling contrary to 34 years of established Constitutional law affecting approximately 100,000,000 Americans in their region -- I call this a judicial oligarchy.
How about an actual response to the premise: IF it isn't commerce, AND it isn't inter-state, by what possible mechanism can the FedGov stick it's jackboot in?
In 1937, Congress imposed a $1.00 excise license on the growing, possession, etc., etc., etc., of Canabis.
It is a "tax" issue.
Just as if you made your own steel from locally produced Iron, and manufactured a Class III firearm...$200 Excise Tax.
Yes, Virginia, in the roaring 20's, Booze was Illegal, and Pot was Legal!!!
"How about an actual response to the premise: IF it isn't commerce, AND it isn't inter-state, by what possible mechanism can the FedGov stick it's jackboot in?"
How about, "IF it doesn't have medical value"? The California legislature is making an exception for medical marijuana, saying that it's use would be limited and restricted and will not enter commerce. Congress has a finding that says marijuana is a Schedule I drug with no medical use.
So, how can California bypass the procedure to change the scheduling and just claim otherwise? Can the California legislature claim that a full-auto AK-47 can be used as a hammer? And if it's used in that limited capacity as a hammer it should be legal?
As I stated before, one judge dissented. You can read Circuit Judge Beam's dissent in Raich v Ashcroft, starting on page 24. He gives the reasons why this activity can be regulated. Basically, he states:
"It is simply impossible to distinguish the relevant conduct surrounding the cultivation and use of the marijuana crop at issue in this case from the cultivation and use of the wheat crop that affected interstate commerce in Wickard v. Filburn, 317 U.S. 111 (1942). Accordingly, I dissent.
That is correct. The U.S. Constitution deals with generalities, not specifics. It states things like "commerce" instead of "Claritin".
Do you think that the U.S. Constitution must say, "Congress has the power to regulate Claritin" in order for Congress to exercise that power?
"Show me where in that documument the FedGov is authorized to stick its jackboot into something that isn't commerce, and isn't inter-state."
Article 1, Section 8 gives Congress the power to regulate interstate commerce. If an activity has a substantial affect on interstate commerce, the "necessary and proper" clause of Article 1, Section 8 gives Congress the authority to make laws for carrying into execution it's power to regulate interstate commerce.
"And Judge Beam's dissent has a whopper of a "penumbra" on it: He claims anything that could possibly be taken across state lines IS intertstate commerce. Do you really buy in to that? "
There's a couple of things going on at the same time, so it's difficult to sort out just one. Judge Beam was discussing the commercial/noncommercial aspect of marijuana. The appellants argued that the marijuana was grown and provided to the patients for free, and therefore was a noncommercial activity which Congress could not touch. Judge Beam stated that the appellants were growing and/or using a fungible crop which could be sold in the marketplace. Since it could be sold, that made it a commercial product.
That's the first part. Second, if the patients are using medical marijuana, that means that they're not using other drugs (eg, Marinol or perhaps pain killers) which would have to be purchased in the interstate market. Therefore, their use affects interstate commerce.
Lastly, he concludes:
"That medicinal marijuana is acceptable in several states surrounding California also undermines the court’s conclusion. Even if the plants are grown for purely medicinal purposes, it is probable that an interstate market for medicinal marijuana has developed with users from surrounding jurisdictions. All of this contributes to “swelling the interstate traffic in such substances.”
As far as my AK-47 example, let's change that to say "hand grenades". Let's not miss the point here -- that point being that saying that "A" can be used as "B" doesn't make it "B".
Anything can be sold. So, the good judge is saying that anything can be banned by the federal government? Are you confortable with that potential?
Wow. You really believe that? And can you name even one activity for which I could not construct an excuse for federal intervention along the same lines? With that tool I could regulate your nose-picking based on it displacing interstate nose-picking.
These arguments make the Xth a nullity. What kind of conservative would want that?
Judge Beam said that if a product could be sold, that, by definition, made it a commercial product.
Now, how do you go from that to the judge saying that the product can be banned? Very few commercial products are regulated by Congress, much less banned.
Well, here's an important answer.
I don't care what kind of medicine they use. But people should be aware that if they use certain types of medicine they could be arrested.
You're familiar with Wickard v Filburn, the underlying issue in Raich v Ashcroft. Should Filburn have been allowed to grow as much wheat as he wanted? That Congress could regulate interstate wheat only, and didn't have the power to regulate each wheat grower?
That's probably one of the most idiotic things I've ever heard. Why should people be arrested for using medicine? Did you bother to think that through? I'd like to hear your explanation.
Hey, how about being arrested for doing 40 in a 35? Talk about idiotic!
"Why should people be arrested for using medicine?"
Well, we have this system in the United States for regulating drugs that work pretty well at saving lives. Drugs are subjected to an 8-point test to determine if a drug should be controlled, and to what extent. Some medicines/drugs are then deemed legal and available over-the-counter, some medicines/drugs are legal but only availble with a doctor's prescription, and some medicines/drugs are illegal.
Those drugs that are legal are subjected to testing and FDA approval. The contents of each drug are known and the purity controlled. Drug interactions are known and reported. Possible side effects are listed. Dosage recommendations are set.
Now, if you want to return to the days of Clan of the Cave Bear and start chewing on bark and roots, be my guest. I really don't care.
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