The US Supreme Court announced Monday that it will decide whether people who use medical marijuana on a doctor's recommendation are subject to punishment under the Controlled Substances Act. The court agreed to hear the Justice Department's appeal of a landmark 9th US Circuit Court of Appeals December decision that the act does not apply to patients in states that have medical marijuana laws and who are not involved in interstate commerce in the drug.
The stakes are enormous. If the high court upholds the 9th Circuit decision, medical marijuana patients across the land will win protection for their non-commercial, intrastate medical marijuana use. If the court reverses the 9th Circuit, it could mean a return to the bad old days of the Drug Enforcement Administration swooping down and arresting patients and caregivers even in states that have legalized medical marijuana.
That 9th Circuit ruling came in Raich v. Ashcroft, where two seriously ill California women, Angel Raich and Diane Monson, had sued the federal government over its harassment of medical marijuana users and providers in the state. Their lawsuit asked for a court order enjoining the Justice Department from prosecuting them for smoking, growing, or obtaining marijuana for reasons related to their medical conditions.
The case had its genesis in a raid at the Butte County home of Diane Monson, who, with a doctor's recommendation, used marijuana to alleviate severe back spasms. In that raid, a joint operation between Butte County sheriff's deputies and DEA agents, the deputies concluded that Monson legally possessed the pot under California law. But after a three-hour stand-off with the deputies, the DEA agents seized and destroyed her plants. She and her fellow plaintiff, Angel Raich, sought relief in federal court.
In the first federal appeals court ruling to find any part of the 1970 Controlled Substances Act unconstitutional, the 9th Circuit granted Raich and Monson's request. A divided three-judge panel found that using marijuana on the advice of a doctor is "different in kind from drug trafficking" and that "this limited use is clearly distinct from the broader illicit drug market." According to the opinion authored by Judge Harry Pregerson, "cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity" and is thus outside federal jurisdiction.
Government lawyers, unsurprisingly, have a different view. It his appeal to the Supreme Court, US Solicitor General Theodore Olson argued that state laws that carve exceptions for medical marijuana are overridden by federal law. The Controlled Substances Act regulates "all manufacturing, possession and distribution of any" drug on its schedules, Olson wrote. "That goal cannot be achieved if the intrastate manufacturing, possession and distribution of a drug may occur without any federal regulation."
Attorney Robert Raich is both married to plaintiff Angel Raich and part of the legal team that argued her case. He saw the Supreme Court decision to accept the case as a chance to expand patients' rights across the country. "This gives us the opportunity to provide patients with the legal safety they need on a nationwide basis to possess cannabis legally under federal law," he told DRCNet.
The case is being watched closely by marijuana reform organizations. "While a ruling overturning Raich would not invalidate the protections that patients currently enjoy under state law, it would allow John Ashcroft's Justice Department to resume the federal government's war on patients," warned Rob Kampia, executive director of the Marijuana Policy Project (http://www.mpp.org), which helped fund the litigation. "A ruling in favor of the federal government would mean that the phrase 'interstate commerce,' as used in the Constitution, has become essentially meaningless," he said. "In its appeal, the Justice Department is claiming that two patients and their caregivers who are growing and using medical marijuana within California -- using California seeds, California soil, California water and California equipment -- are somehow engaged in 'interstate commerce.' The Bush administration's assault on the meaning of the 'interstate commerce' clause should be of concern to all conservatives."
But for this particular conservative administration, the need to be able to pursue the war on drugs even against sick patients trumps federalism and states' rights. An unfavorable ruling at the Supreme Court would "seriously undermine Congress's comprehensive scheme for the regulation of dangerous drugs," the administration argued in its appeal. "Marijuana is a commodity that is readily purchased and sold in a well-defined market of drug trafficking," the brief continued. And the administration seeks a ruling that will keep it that way.