Supreme Court Skeptical of Medical Marijuana at Raich-Monson Hearing - Decision Expected in Spring 2005
Washington DC, Nov 29. The Supreme Court reacted skeptically to claims by Prop. 215 patients Angel Raich and Diane Monson that federal laws against marijuana should not apply to their personal possession and cultivation of marijuana for medical purposese under California law.
The government asked the court to overturn a ruling by the Ninth Cicuit Court of Appeals, which held that personal medical use of marijuana by Prop. 215 patients did not fall under the federal powers to regulate interstate commerce.
Attorneys for Raich and Monson argued that their case was substantially different from that in the Supreme Court's 1942 Wickard v Filburn decision, in which it held that the government could prohibit Filburn from growing wheat for use on his own farm. Their argument, presented by libertarian constitutional law scholar Randy Barnett, was tailored to appeal to the court's conservative majority, whose recent rulings have tended to favor federalism and tighter limitations on federal powers under the commerce clause.
However, Justice Antonin Scalia, a leading conservative voice on the court, launched into Barnett's contention that Raich's and Monson's marijuana growing was different from Filburn's wheat.
"It looks like Wickard to me," said Scalia, "I used to laugh at Wickard, but that's what it says."
Barnett explained that Filburn's wheat was not just for personal consumption, but was used for a commercial livestock-feeding enterprise, unlike his clients' marijuana, which was for strictly non-economic, personal medical use.
"But Congress has done this in other areas, like with endangered species," Scalia observed, "You can't have eagle feathers, no matter where you got them, for example."
Taking issue with Barnett's claim that medical marijuana is "isolated" from the larger market, Justice Scalia exclaimed, "I understand some communes grow marijuana for medical usage!"
Two other conservative justices, Kennedy and Souter, joined in the attack, suggesting that patients' use of marijuana would affect the interstate market. "Can't we infer from the enormous commercial market that possession of the drug is proof of participation in the market?" Kennedy asked.
Citing with particular concern California NORML's estimate that as many as 100,000 patients are using medical marijuana in California, Justice Souter dismissed as "unsupportable" Barnett's assertion that the impact on interstate commerce would be "trivial."
(California NORML notes that the government has so far failed to provide an iota of evidence that any medical marijuana from California has leaked into interstate commerce, prices in which have held steady since passage of Prop 215. NORML also notes that federal arrests for personal use quantities are extremely rare and have no impact on the market, whereas arrests for distribution, which do impact the market, would not be affected by Raich .)
From the liberal side, Justice Stephen Breyer criticized Raich and Monson for not having applied to the FDA to get marijuana rescheduled. "How can we take for a fact that medical marijuana actually exists?," he asked, "Medicine by regulation is better than medicine by referendum,"
Breyer appeared oblivious of the government's 30-year history of blocking rescheduling petitions and medical marijuana research and development.
Ironically, on the same day Breyer was speaking, the U.S. Court of Appeals in the District of Columbia dealt another blow to medical marijuana research by rejecting a lawsuit by the Multidisciplinary Association for Psychedelic Studies to force the DEA and NIDA to respond to two research applications that had been delayed for a year and a half. The applications were for two 10-gram samples of marijuana for use in a vaporizer study co-sponsored by Cal NORML and MAPS. A few days later, after three and a half years of delay, the DEA denied an application by MAPS to establish a medical marijuana research facility at the University of Massachusetts, effectively shutting the door on the only possible path to development of medical marijuana for FDA approval.
Justice Breyer had no suggestion as to how Raich and Monson might relieve their distress while waiting for the FDA, an agency notorious for lengthy approval delays..
Justices O'Connor, Ginsburg, and possibly Stevens appeared sympathetic to Raich's claims. "As I understand it, if California's law applies, then none of this homegrown or medical-use marijuana will be on any interstate market, " said O'Connor, "And it is in the area of something traditionally regulated by states."
"There is, in this record, a showing that, for at least one of the two plaintiffs, there were some 30-odd drugs taken," Ginsburg noted, "None of them worked. This was the only one that would."
However, U.S. Solicitor General Paul Clement argued that the Institute of Medicine had determined that smoked marijuana has no future as medicine.
Clement warned that a finding for the patients would seriously undermine the Controlled Substances Act . "Any little island of lawful possession of non-contraband marijuana, for example, poses a real challenge to the statutory regime" he said.
From the tenor of the hearings, most observers predicted that at least six of the nine justices would side with the government. However, attorney Robert Raich, who is representing his wife, Angel, said a victory was still possible if Justices Scalia and Thomas proved true to their prior decisions.
Justice Thomas, who has been the most outspoken critic of expansive federal powers under the commerce clause, was silent at the hearings, as is his habit.
Chief Justice Rehnquist, the ninth and potentially deciding vote, was absent due to illness from thyroid cancer, but is expected to take part in the decision. Rehnquist is widely viewed as sympathetic to the government. In the event that he cannot take part in the decision, there could be a 4 - 4 tie. In that case, the Ninth Circuit's decision would remain valid within the circuit, but not nationally.
California NORML is advising medical marijuana supporters to brace for an adverse decision. While a ruling against Raich would not affect state law, it could well inspire another DEA crackdown against medical cannabis clubs. A similar crackdown followed the Court's decision against the Oakland Cannabis Buyers' Cooperative in 2001.
A loss for Raich would strip federal defendants of any opportunity to mention medical marijuana in their defense. This would adversely impact several Prop. 215 defendants with pending cases that involve personal use cultivation, including Steve McWilliams, Judy and Lynn Osburn, Keith Alden, Gary and Anna Barrett, and Bryan Epis, some of whom would face likely prison terms.
A defeat for Raich would also embolden local law enforcement agents hostile to Prop. 215 to call on the feds to harass patients and medical marijuana activists.
On the other hand, a victory for Raich would free patients from the threat of harassment for personal possession and cultivation of medical cannabis. Although it would not directly affect laws against distribution, a favorable decision would likely encourage public officials to support further reforms to legally regulate medical marijuana. "The Supreme Court has a choice," says Dale Gieringer, "Either recognize patients' right to medicine, or continue criminalizing, arresting and prosecuting the many Americans who find cannabis beneficial."
Whatever happens, medical marijuana advocates aren't backing down."Medical marijuana is here to stay," says Gieringer, "we aren't giving up until federal cannabis prohibition is repealed."
The court is expected to announce its decision in three or four months, or by June at the latest.
Washington DC, Nov 29. The Supreme Court reacted skeptically to claims by Prop. 215 patients Angel Raich and Diane Monson that federal laws against marijuana should not apply to their personal possession and cultivation of marijuana for medical purposese under California law.
The government asked the court to overturn a ruling by the Ninth Cicuit Court of Appeals, which held that personal medical use of marijuana by Prop. 215 patients did not fall under the federal powers to regulate interstate commerce.
Attorneys for Raich and Monson argued that their case was substantially different from that in the Supreme Court's 1942 Wickard v Filburn decision, in which it held that the government could prohibit Filburn from growing wheat for use on his own farm. Their argument, presented by libertarian constitutional law scholar Randy Barnett, was tailored to appeal to the court's conservative majority, whose recent rulings have tended to favor federalism and tighter limitations on federal powers under the commerce clause.
However, Justice Antonin Scalia, a leading conservative voice on the court, launched into Barnett's contention that Raich's and Monson's marijuana growing was different from Filburn's wheat.
"It looks like Wickard to me," said Scalia, "I used to laugh at Wickard, but that's what it says."
Barnett explained that Filburn's wheat was not just for personal consumption, but was used for a commercial livestock-feeding enterprise, unlike his clients' marijuana, which was for strictly non-economic, personal medical use.
"But Congress has done this in other areas, like with endangered species," Scalia observed, "You can't have eagle feathers, no matter where you got them, for example."
Taking issue with Barnett's claim that medical marijuana is "isolated" from the larger market, Justice Scalia exclaimed, "I understand some communes grow marijuana for medical usage!"
Two other conservative justices, Kennedy and Souter, joined in the attack, suggesting that patients' use of marijuana would affect the interstate market. "Can't we infer from the enormous commercial market that possession of the drug is proof of participation in the market?" Kennedy asked.
Citing with particular concern California NORML's estimate that as many as 100,000 patients are using medical marijuana in California, Justice Souter dismissed as "unsupportable" Barnett's assertion that the impact on interstate commerce would be "trivial."
(California NORML notes that the government has so far failed to provide an iota of evidence that any medical marijuana from California has leaked into interstate commerce, prices in which have held steady since passage of Prop 215. NORML also notes that federal arrests for personal use quantities are extremely rare and have no impact on the market, whereas arrests for distribution, which do impact the market, would not be affected by Raich .)
From the liberal side, Justice Stephen Breyer criticized Raich and Monson for not having applied to the FDA to get marijuana rescheduled. "How can we take for a fact that medical marijuana actually exists?," he asked, "Medicine by regulation is better than medicine by referendum,"
Breyer appeared oblivious of the government's 30-year history of blocking rescheduling petitions and medical marijuana research and development.
Ironically, on the same day Breyer was speaking, the U.S. Court of Appeals in the District of Columbia dealt another blow to medical marijuana research by rejecting a lawsuit by the Multidisciplinary Association for Psychedelic Studies to force the DEA and NIDA to respond to two research applications that had been delayed for a year and a half. The applications were for two 10-gram samples of marijuana for use in a vaporizer study co-sponsored by Cal NORML and MAPS. A few days later, after three and a half years of delay, the DEA denied an application by MAPS to establish a medical marijuana research facility at the University of Massachusetts, effectively shutting the door on the only possible path to development of medical marijuana for FDA approval.
Justice Breyer had no suggestion as to how Raich and Monson might relieve their distress while waiting for the FDA, an agency notorious for lengthy approval delays..
Justices O'Connor, Ginsburg, and possibly Stevens appeared sympathetic to Raich's claims. "As I understand it, if California's law applies, then none of this homegrown or medical-use marijuana will be on any interstate market, " said O'Connor, "And it is in the area of something traditionally regulated by states."
"There is, in this record, a showing that, for at least one of the two plaintiffs, there were some 30-odd drugs taken," Ginsburg noted, "None of them worked. This was the only one that would."
However, U.S. Solicitor General Paul Clement argued that the Institute of Medicine had determined that smoked marijuana has no future as medicine.
Clement warned that a finding for the patients would seriously undermine the Controlled Substances Act . "Any little island of lawful possession of non-contraband marijuana, for example, poses a real challenge to the statutory regime" he said.
From the tenor of the hearings, most observers predicted that at least six of the nine justices would side with the government. However, attorney Robert Raich, who is representing his wife, Angel, said a victory was still possible if Justices Scalia and Thomas proved true to their prior decisions.
Justice Thomas, who has been the most outspoken critic of expansive federal powers under the commerce clause, was silent at the hearings, as is his habit.
Chief Justice Rehnquist, the ninth and potentially deciding vote, was absent due to illness from thyroid cancer, but is expected to take part in the decision. Rehnquist is widely viewed as sympathetic to the government. In the event that he cannot take part in the decision, there could be a 4 - 4 tie. In that case, the Ninth Circuit's decision would remain valid within the circuit, but not nationally.
California NORML is advising medical marijuana supporters to brace for an adverse decision. While a ruling against Raich would not affect state law, it could well inspire another DEA crackdown against medical cannabis clubs. A similar crackdown followed the Court's decision against the Oakland Cannabis Buyers' Cooperative in 2001.
A loss for Raich would strip federal defendants of any opportunity to mention medical marijuana in their defense. This would adversely impact several Prop. 215 defendants with pending cases that involve personal use cultivation, including Steve McWilliams, Judy and Lynn Osburn, Keith Alden, Gary and Anna Barrett, and Bryan Epis, some of whom would face likely prison terms.
A defeat for Raich would also embolden local law enforcement agents hostile to Prop. 215 to call on the feds to harass patients and medical marijuana activists.
On the other hand, a victory for Raich would free patients from the threat of harassment for personal possession and cultivation of medical cannabis. Although it would not directly affect laws against distribution, a favorable decision would likely encourage public officials to support further reforms to legally regulate medical marijuana. "The Supreme Court has a choice," says Dale Gieringer, "Either recognize patients' right to medicine, or continue criminalizing, arresting and prosecuting the many Americans who find cannabis beneficial."
Whatever happens, medical marijuana advocates aren't backing down."Medical marijuana is here to stay," says Gieringer, "we aren't giving up until federal cannabis prohibition is repealed."
The court is expected to announce its decision in three or four months, or by June at the latest.
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