Justices Will Hear Argument on Medical Marijuana Laws

NY Times ^ | June 29, 2004 | LINDA GREENHOUSE

[neverdem]

WASHINGTON, June 28 - The Supreme Court agreed on Monday to decide whether Congress has the authority to prohibit the medical use of marijuana in states where the voters or the legislature have approved the drug's use under a doctor's care.

The case, certain to be one of the most closely watched of the court's next term, is an appeal by the Bush administration of a preliminary ruling issued last December by the federal appeals court in San Francisco. That court, finding that the federal Controlled Substances Act was "likely unconstitutional" as applied to two California patients and their suppliers of marijuana, issued an injunction that barred federal enforcement while the case proceeded.

The case was one of eight new appeals the justices granted as they began the last week of their 2003-2004 term. In addition to its implications for social policy, the case raises important federalism questions. One question is whether the power of Congress to regulate interstate commerce extends to marijuana that is cultivated for noncommercial use within the borders of a single state, never traveling in interstate commerce.

California, which adopted its Compassionate Use Act in 1996, is one of nine states that permit marijuana for medical use under some circumstances. The other eight are Alaska, Colorado, Hawaii, Maine, Nevada, Oregon, Vermont and Washington. Similar efforts are under way in other states.

Attorney General John Ashcroft has strongly opposed the state laws. The case the Supreme Court accepted began with a confrontation between sheriff's deputies in Butte County, Calif., and federal drug agents, who both showed up at the home of Diana Monson, a patient whose severe back spasms are not helped by prescription drugs but are alleviated by marijuana, which she uses under her doctor's care. The sheriff's deputies concluded that the marijuana she was growing was legal, but the federal agents seized and destroyed her plants after a three-hour standoff with the deputies.

Ms. Monson and another patient who uses marijuana, Angel McClary Raich, sued the federal government in Federal District Court, seeking an order saying the Controlled Substances Act could not legally be applied to their marijuana use. They lost in that court but won a preliminary injunction in the United States Court of Appeals for the Ninth Circuit, where a 2-to-1 majority found their marijuana cultivation and use to be noncommercial in character and outside the jurisdiction of Congress.

Appealing to the Supreme Court in Ashcroft v. Raich, No. 03-1454, Mr. Ashcroft is arguing that the appeals court's ruling "seriously undermines Congress's comprehensive scheme for the regulation of dangerous drugs." The brief adds: "Marijuana is a commodity that is readily purchased and sold in a well-defined market of drug trafficking," regardless of whether a particular use takes place within a state's borders.

These were among the other cases the justices added to their docket for the next term, which begins Oct. 4:

Death Penalty

For the second time in two years, the court accepted an appeal from a Texas death-row inmate, Thomas Miller-El, a black man who was tried and convicted of murder in 1986 by a jury from which the prosecutor had removed 10 of 11 black potential jurors by peremptory challenges.

Mr. Miller-El tried to challenge his conviction on the ground of prosecutorial misconduct and jury bias through a petition for a writ of habeas corpus, which the United States Court of Appeals for the Fifth Circuit denied. In its ruling last year, the Supreme Court said in an 8-to-1 decision that the Fifth Circuit had failed to take full account of the evidence, and ordered it to reconsider the case. In the reconsideration, the appeals court again refused to grant habeas corpus, this time adopting the view of Justice Clarence Thomas, who had written a solitary dissent.

In his new petition, Mr. Miller-El's lawyer, Seth P. Waxman, the former solicitor general who also represented the inmate in the earlier Supreme Court appeal, told the justices that the latest decision "undermines this court's supervisory authority" and made it "critically important" for the Supreme Court to review the case again. The appeal is Miller-El v. Dretke, No. 03-9659.

Spy's Claim

Accepting an appeal by the Central Intelligence Agency, the court agreed to decide whether federal courts can consider a claim that the agency has wrongfully refused to keep a promise to provide a foreign agent with lifetime financial support in return for espionage services.

The case, Tenet v. Doe, No. 03-1395, began as a lawsuit by the foreign agent, a former high-ranking diplomat for a Communist country, and his wife, now both United States citizens. Their names were not revealed in the lawsuit, and the government has neither confirmed nor denied their claims. They said they initially received about $20,000 a year plus housing and health care. Eventually, both their services and the payments stopped and the couple, out of work, brought suit.

The Federal District Court in Seattle, in a ruling affirmed by the Ninth Circuit, has allowed the case to proceed to the pretrial discovery phase. In its appeal, the agency told the justices that this "unprecedented holding" was "manifestly wrong" and threatened to damage national security. The couple's lawyers argue that there is no danger because the appeals court invited the C.I.A. to invoke a "state secrets privilege" as the case goes forward.

[neverdem]

PING

[sandbar]

My mother used marijuana when taking chemo. (DEFINITELY not a druggie, she was a preacher for the Church of God for crying out loud!) The other drugs given for nausea kept her virtually comatose and she couldn't enjoy her time with her family and my kids. Marijuana provided much needed relief from nausea and an appetite to improve her nutritional level during what time she had left, and still left her coherent enough to play games or whatever the kids wanted. It also helped her nerves, which is usually on edge during this treatment.

I am for the RESPONSIBLE use of a valid drug. The same drug that makes morphine is also an illegal drug in street form. But you can't discount the medicinal use of this drug.

[yankeedame]

The trouble is that this opens wide the door for MD corruption. After all, not all MDs are Marcus Welbee. I know down in Florida there was (is?) a booming business in which MDs will --- for a proper remuneration -- register someone as Handicap. Thus enabling the party of the 2nd part to get a handicap sticker/sign and with that... well, you know the rest. Its a two-way street: sometimes the MD brings up the possibility, and sometimes the patient.

Now the possibility of allowing MDs to Rx pot....Ah me, plus ca change, plus c'est la meme chose ("The more things change, the more they stay the same.")

[coloradan]

I am for the RESPONSIBLE use of a valid drug.

I am for the responsible use of everything, from guns to cars to drugs. Responsible use doesn't mean prohibition.

Then again, many here would call your mother a druggie, and demand she be thrown in jail on federal charges, because there is no federal recognition of medical marijuana laws, irrespective of the state laws on the subject.

[j-pizzo]

i wish my mom had used it during her cancer treatment. but since it was illegal, she wouldn't. i got to watch her suffer thru the coctail of drugs she took. i wouldn't wish that on anyone... would pot have helped her? i don't know, but i do think her doctor should have the ability to make that decision, not the government.

[Bronco_Buster_FweetHyagh]

Remember during the 2000 presidential campaign, when Bush said that medical marijuana was a states' rights issue, and that he would not use the federal government to try to bully states into accepting federal law over the issue?

[Texasforever]

Given their recent rulings I firmly believe they are personally stoned while hearing cases.

[neverdem]

Remember during the 2000 presidential campaign, when Bush said that medical marijuana was a states' rights issue, and that he would not use the federal government to try to bully states into accepting federal law over the issue?

No, I don't. Anyone who does has a truly exceptional memory or is highly attached to the subject. I approve of medical marijuana. I believe the feds will lose when SCOTUS hears the case.

[Ken H]

I believe the feds will lose when SCOTUS hears the case.

Hard to predict anything with this Court, but I would guess a 5-4 against the feds.

Justice Thomas has said the "substantial effects" test of the Commerce Clause is not correct and that at the very least it needs reexamining.

What is your rationale for thinking USSC will rule against the feds?

[neverdem]

What is your rationale for thinking USSC will rule against the feds?

It's demonstrated liberal tendency, medically and legally. In the medical sense, I believe it's right. From a practical, legal perpsective, after blithely making their ruling in Lawrence v. Texas tacitly endorsing the homosexual lifestyle, are they now supposed to deny the drug that alleviates "Slim's Disease", i.e. AIDS, as well as the nausea that accompanies chemotherapy when patients can't tolerate pills, not to mention certain patients with chronic pain, multiple sclerosis or glaucoma?

[Ken H]

USSC actually ruled once before against the program, saying there was no medical necessity defense. They said Congress was within its powers to rule that MJ had no medicinal value.

This time the feds are being challenged on the basis that the program does not substantially affect interstate commerce and therefore, the feds have no constitutional authority to interfere.

In US vs Lopez, Justice Thomas wrote:

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 he sticks to his beliefs about substantial effects, he could end up being the swing vote.

[neverdem]

I'm no lawyer, but I like your perspective. Say a prayer. Adios

[TKDietz]

I believe what he said when asked about medical marijuana on the campaign trail was "I believe each state can choose that decision as they so choose."

Footnote # 3 in http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=00-151

http://nl.newsbank.com/nl-search/we/Archives?p_action=list&p_topdoc=51

[TKDietz]

That's # 3 on the second set of footnotes near the bottom of the page.

[neverdem]

Thanks for the first link. The 2nd link expired.

[coloradan]

They said Congress was within its powers to rule that MJ had no medicinal value.

Is it the mark of a free country when a court determines that a legislative body should make medical decisions? What do we have doctors for, licensed by the state, no less?

[TKDietz]

Sorry about that. Here are links I googled up to a few articles that use that quote:

http://www.nationalreview.com/kopel/kopel112601.shtml
http://www.cato.org/research/articles/bandow-031219.html
http://www.cnn.com/2001/ALLPOLITICS/05/17/column.billpress/

There were 270 hits for that quote on Google.

[cinFLA]

Then again, many here would call your mother a druggie, and demand she be thrown in jail on federal charges,

I have NEVER seen anyone here post such an idea. You are indulging in hyperbole and alarmism.

[cinFLA]

What do we have doctors for, licensed by the state, no less?

Licensed by the state to obey state laws. Duh...