Posted on 06/28/2004 12:54:51 PM PDT by cryptical
WASHINGTON (Reuters) - The U.S. Supreme Court agreed on Monday to decide whether a law outlawing marijuana applies to medical use by two seriously ill California women whose doctors recommended cannabis for their pain.
The high court said it would review a ruling that the Controlled Substances Act of 1970 cannot be applied constitutionally to the manufacture, possession and distribution without charge of marijuana for medical use.
The ruling by a U.S. appeals court in San Francisco found the two women had demonstrated a strong likelihood of success on their claim that the federal law, as applied to them, is an unconstitutional use of Congress's power to regulate commerce among the states.
"The cultivation, possession and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity," the appeals court said.
It said marijuana used for medical purposes was different from drug trafficking.
The lawsuit had been brought in 2002 by Angel Raich, who has an inoperable brain tumor and other medical problems, and Diane Monson, who suffers from severe back pain. Their doctors recommended they use marijuana to relieve their pain.
Monson cultivates her own marijuana while two of Raich's caregivers grow the marijuana and provide it to her free of charge. In 2002, Drug Enforcement Administration agents destroyed six cannabis plants seized from Monson's home.
Their lawsuit against Attorney General John Ashcroft and the head of the Drug Enforcement Administration sought a court order barring the government from enforcing the federal drug law, as applied to their conduct.
A federal judge denied their request, but the appeals court overturned the ruling.
Solicitor General Theodore Olson of the Justice Department appealed to the Supreme Court.
He said the appeals court ruling has partially invalidated an act of Congress and "substantially undermines" the government's enforcement of the federal drug law.
California and at least seven other states -- Alaska, Colorado, Hawaii, Maine, Nevada, Oregon and Washington -- have laws allowing medical use of marijuana, Olson said.
Another seven states -- Connecticut, Florida, Missouri, New York, Rhode Island, Vermont and Utah -- are considering adopting their own medical marijuana laws, he said.
He said federal law should take precedence over state law in the case.
Attorneys for the two women urged the Supreme Court to reject the government's appeal. They said the case implicated "the fundamental right to alleviate unnecessary pain and agony and protect bodily integrity."
The justices will hear arguments and then rule in the case during their term that begins in October.
The Supreme Court last ruled on the issue in 2001 when it said California cannabis clubs may not distribute marijuana as a "medical necessity" for seriously ill patients.
A Raich thread, for future reference.
I don't get where the medical use part comes into play at all here. It seems to me the argument would be the same regardless, so long as the use was permitted by that state. It just so happens to have been a case of medical use. Anyway, I suppose it wont change anything for me. I don't have much of a green thumb anyway.
That's what's supposed to happen to unconstitutional laws, Ted.
First, they will try the putative medicine, themselves; then they will try the case.
;^)
I think it's a first swing at the Commerce Clause issue. How can the Feds regulate an agricultural product that's grown instate, and prescribed as allowed by law. It seems that there's no interstate commerce affected at all, and a simple reading of the Constitution should say the Federal law oversteps its bounds.
It'll be interesting to see the ruling.
OK...be patient with the Huckster....soooo, are we saying that the Constitutional rationale for the Controlled Substance Act is the Commerce Clause? And so if pot is legal in a state, and the pot is grown and used non commercially, the feds have to butt out? Be interesting to see.
True. California could have legalized marijuana (or cocaine, for that matter), and the issue in front of the USSC would be the same.
Raich is counting on the fact that this is 1) purely intrastate and 2) the marijuana is being provided for free, to negate Congress' authority to "regulate interstate commerce" (since it's neither interstate nor "commerce").
The dissent in Raich v Ashcroft by Circuit Judge Beam (starting on page 24) shows how futile their case will be.
You have it right. I think it is an interested swing at the Commerce Clause.
The outcome may lead the way to more incremental freedom for the states.
I think this issue should be put to a vote!
And state it thusly:
_ I vote to have my taxes raised, to continue the "war on drugs".
_ I vote to have my taxes lowered, by the amount that the "war on drugs" has been costing me, both by law enforcement and incarceration costs, no matter what the price.
Please check ONLY ONE of the boxes above to register your vote.
Seems doubly futile. What do you think the SCOTUS will do? Throw it out and say they didn't have standing, or go along the lines of the wheat argument?
A novel use of Wickard v. Filburn, that legal non-commercial interstate cultivation of marijuana will affect the illegal interstate commerce in marijuana, which gives the Feds the right to regulate the otherwise legal interstate production.
Well, it was a dissent, so it's just a novel theory at this point.
Congress is attempting to regulate a product. Intrastate activity of the product will have a "substantial effect" on their regulatory efforts. The courts have ruled that Congress may then also regulate that intrastate activity.
Now, people may argue that Congress has no business regulating drugs. Fine. I understand the argument. That's a whole different argument and a whole different battle.
But Congress IS regulating drugs. The Founding Fathers did not give Congress this awesome power with the intent that the individual states could undermine and subvert their efforts. Fighting this at the state level is not where the battle should be taken up.
Put simply, much if not all of Art. I, 8 (including portions of the Commerce Clause itself) would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of 8 superfluous simply cannot be correct. Yet this Court's Commerce Clause jurisprudence has endorsed just such an interpretation: the power we have accorded Congress has swallowed Art. I, 8. 3 [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995) , 7]
Indeed, if a "substantial effects" test can be appended to the Commerce Clause, why not to every other power of the Federal Government? There is no reason for singling out the Commerce Clause for special treatment.
Accordingly, Congress could regulate all matters that "substantially affect" the Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that case, the clauses of 8 all mutually overlap, something we can assume the Founding Fathers never intended.
Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince us that the "substantial effects" test should be reexamined.
If I understand you correctly, you are saying it's hopeless to try to win by saying the feds don't have jurisdiction. The straight path is to go after the designation of marijuana as schedule one, is it not? That can be initiated by Congress OR by the executive, if I remember correctly, through his justice dept (obviously not gonna happen in this case) or HHS secretary. There is a provision in the law for a review/recommendations etc etc.
Because otherwise CSA could be entirely nullified, which ain't gonna happen. That's your view?
As Circuit Judge Beam said, locally grown "so-called legal" marijuana affects the illegal interstate commerce because it is used instead of the illegal interstate marijuana. The illegal interstate commerce is negatively affected, yes? Q.E.D.
Another example he gave was that if the "patient" uses locally grown "so-called legal" marijuana, then they will not purchase interstate Marinol or other legal drugs, thereby negatively affecting the commerce of those drugs. (IF Congress were regulating automobiles, and everyone built their own car, that would have a negative effect on Detroit auto production).
Back out of the hole. One important issue is that marijuana is fungible and it could be sold and it could be sold interstate, thereby affecting their regulatory efforts. Another issue is that Congress has a finding (in the Controlled Substances Act of 1970) that marijuana has no medical use. The California legislature says it does. I haven't seen that inconsistency addressed by any of the courts.
Yes, it was based on the Commerce Clause. More specifically, the New Deal substantial effects test.
However, it apparently wasn't enough to use just the Commerce Clause. Congress threw in the General Welfare Clause as well. The same rationale was used for the War on Poverty and much of the Great Society.
From the CSA:
The Congress makes the following findings and declarations:
(1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.
(2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.
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