In the end, it comes down to eight or nine men and women wearing black robes. They spent a few hours in November, 2004, listening to two women’s attorneys argue against a squadron of US government attorneys in the decade’s most important medical marijuana case yet.
How many souls in wheelchairs, street protests, prisons, courtrooms, hospitals, and graveyards stand as comrades to Angel Raich and Diane Monson in their historic attempt to force the federal government to abandon nearly 70 years of lies about marijuana, to allow majority-rule democracy to win out against the forces of federal prohibition?
The Raich Supreme Court case has led to months of speculation and hope as tens of thousands of people wait for the Court to issue its decision on whether the democratic decision of California voters, rendered in 1996 when voters legalized medical marijuana via Proposition 215, will actually be allowed to stand.
For three years, journalists, legal analysts, prohibitionists and pundits have chattered about the landmark medical cannabis issues and political issues raised by Raich and Monson.
Now, people are beginning to wonder why it’s taking so long for the Supremes to issue their ruling. In most circumstances, the judges issue a ruling within one to three months after hearing arguments. Courtwatchers expected the court to have issued a ruling by late March at the latest. Some thought the Court would go for irony, and issue its ruling on 4-20, perhaps even issuing the ruling at 4:20 pm on 4-20. It didn’t happen. Still there is no decision in Gonzales v. Raich (it used to be Raich versus Ashcroft, but Gonzales is now the US Attorney General so his name, as new plaintiff, now goes first). Why is it taking so damned long?
At heart, the case seems simple enough, although there are plenty of nuances being argued by people well-versed in the details of how the US constitution envisions the balance of power between federal institutions, federal law, and state law.
On one side of the issue, fighting the federal government, are two women and two anonymous marijuana growers. Angel Raich is a mother of two children who has a plethora of disabling illnesses for which she uses doctor-recommended medical marijuana. Raich believes marijuana is the best and only medicine for her, and that she would literally die without it.
Diane Monson is a 40-something Butte County, California accountant who has a doctor’s recommendation to use marijuana for back pain and spasms. The two anonymous marijuana growers are “designated caregivers” as defined by Proposition 215. Caregiver status confers legal immunity to the growers as long as they only cultivate marijuana for Raich or others whose doctors have recommended cannabis.
Raich initiated a lawsuit against the feds in October, 2002, because she feared the DEA would raid her grower caregivers, thus depriving her of her yearly supply of marijuana.
The DEA had been raiding California medpot clubs that she relied on, and she felt she had to take legal action to prevent the feds from interfering with her supply of medicine. Raich and her doctors say she will die without medical marijuana; the government in opposing her lawsuit has asserted otherwise. In fact, the government asserts that marijuana has no medical value and is as dangerous as heroin.
Raich’s lawsuit was directed at the Justice Department, which was at the time headed by gospel singer John Ashcroft; it argued that the federal government had no right to attack Californians who were in compliance with California’s medical cannabis law.
Monson joined in the lawsuit after her rural Northern California home was raided by DEA in August, 2002. The raid became international news when Butte County District Attorney Mike Ramsey, who had been known as a staunch opponent of medical marijuana and Prop. 215, told Butte County sheriff’s deputies accompanying the DEA to stop the DEA from stealing Monson’s six marijuana plants.
Ramsey wanted the raid scene “frozen” until he had time to explain to a federal official that his state’s voters had legalized what Monson was doing, and that she was in compliance with a local medical marijuana policy that Ramsey himself had helped create and implement.
Ironically, Ramsey had been meeting with an interagency drug task force when he received an emergency call from the sheriff’s marijuana eradication team, which was at Monson’s house with the DEA. The DEA was there because they’d busted a major grow-op in a house that Monson and her husband formerly owned.
Ramsey and local police had recently formalized a policy that allowed patients to grow six plants and possess a pound of pot. Sheriff’s Lieutenant Jerry Smith said his officers had no problems with Monson or her plants. But the DEA did.
“My investigator said, ‘I think we have a problem here,'” Ramsey recalls. “I told him, ‘Everybody is frozen in place until I get back to you. If anybody makes a move against those plants, arrest them. Is that clear?’ My investigator answered, ‘Yes,’ and added, “I don’t detect any note of levity in your voice.’ He knew that I meant it. If the feds had done something to the plants, well, there would have been trouble, by God!”
Ramsey called US Attorney John Vincent, arguing in vain that Monson’s plants were legal under state law.
Ramsey told Vincent that DEA interference with Prop. 215 was “wrong-headed, stupid and high-handed.”
“I was very angry about it, and Vincent apologized several times while insisting that DEA agents had to seize Monson’s plants because the US government does not recognize Prop. 215,” Ramsey said. “Finally, I had to call my people and tell them to back away, if the feds are gonna do what they are gonna do, let ’em do it alone.”
And while the feds hacked away at Monson’s medicine, she read them the entire text of Prop. 215.
“I thought they might need to hear it,” she explained. “I couldn’t believe they were taking my plants. I mean, this is totally against what the will of the people of the state of California is. I wasn’t doing anything against the law.”
Ramsey says Vincent assured him the Monson case was an “isolated incident,” but those assurances turned out to be hollow- federal agents continued to raid legal medical marijuana patients in California. That’s why Monson joined with Raich in suing the federal government.
On December 16, 2003, the 9th Circuit Court of Appeals ruled in favor of Raich and Monson, and issued a preliminary injunction that prevents the DEA from enforcing the federal Controlled Substances Act (CSA) in California if the CSA is in conflict with state medpot law.
The ruling stated that the court believed Raich and Monson had validly argued that the CSA was an “unconstitutional exercise” of Congressional power. The Court issued an injunction, as follows:
“[The Justice Department], and their agents and officers, and any person acting in consort with them, are hereby enjoined from arresting or prosecuting Plaintiffs Angel McClary Raich and Diane Monson, seizing their medical cannabis, forfeiting their property, or seeking civil or administrative sanctions against them with respect to the intrastate, noncommercial cultivation, possession, use, and obtaining without charge of cannabis for personal medical purposes on the advice of a physician and in accordance with state law, and which is not used for distribution, sale or exchange.”
The injunction, along with a favorable ruling regarding the Wo/Myn’s Alliance for Medical Marijuana (WAMM) in Santa Cruz, opened up a flood of medical marijuana business in Western states where the 9th circuit has jurisdiction. Local and federal law enforcement agencies seem to have decided not to raid medpot clubs or gardens until the Supreme Court decides the issue once and for all. Growers, patients and pot club owners decided to function as if state medical marijuana laws protected them from federal intervention.
On April 20, 2004, that’s right, on 4-20, the Federal government appealed the 9th Circuit’s decision to the Supreme Court. The Court heard oral arguments regarding that appeal on November 29, 2004. Courtroom observers said both sides argued competently, but that the Court’s liberal and conservative judges were openly hostile to the pro-marijuana attorneys.
Courtwatchers that day, and in subsequent months, said they believed the court would unanimously rule against medical marijuana and in favor of the feds. Raich’s lawyers argued well, and the force of morality and law is on their side, but the Supreme Court has found a way to rule against marijuana before, and it is expected to rule against it again, regardless of the facts, the legal issues, and the effect on patients.
Of special significance was that several Justices seemed to indicate that they did not think Prop. 215 and medical marijuana issues belonged in the Supreme Court. Maybe even Congress doesn’t have the right to regulate marijuana, some Justices suggested. Maybe marijuana should just go through what other proposed medicines go through, a supposedly neutral scientific review, and then become a legit medicine via regulatory approval.
Justices seemed to suggest that the med cannabis issue was in the wrong venue, and that medical marijuana advocates should go to the FDA, DEA and other federal regulatory agencies and get marijuana officially classified as a medicine.
Raich’s lawyers responded that the federal government has repeatedly blocked clinical research necessary to get a fair regulatory evaluation of cannabis as medicine, that state voters have settled the issue, and that the federal government had no right to regulate medical cannabis when it had already been legalized by state voters for state residents who do not engage in interstate marijuana commerce.
Some of the written briefs filed on behalf of the medical marijuana activists came from state governments of Alabama, Louisiana, and Mississippi- states not known for liberal attitudes towards marijuana. The reason that these conservative Southern states got involved in the case is that they have an interest in reducing the amount of power that the federal government has over state laws and citizens.
Indeed, Raich’s legal argument does not rely on “medical necessity,” which was a losing argument in the Oakland Cannabis Buyer’s Club case, argued in front of the Supreme Court by Raich’s attorney husband, Rob, who is also part of his wife’s legal team. In that case, the Court ruled that a patient’s medical need for marijuana does NOT give legal protection to medical cannabis dispensaries serving such patients.
Raich’s argument is founded on the competition between “state’s rights” (the right of individual states to pass state laws regulating activities within the state), and the US constitution’s Interstate Commerce Clause, which gives Congress the right to regulate some interstate transactions and issues by making federal law. A prime example of such regulation is the Controlled Substances Act, in which Congress stipulates that marijuana is a dangerous drug with no medical usefulness and a high potential for “abuse.”
The US Constitution does not give police powers to the federal government. It gives the feds only the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Until recently, courts have given the government broad commerce clause powers, which is why Congress believed it could regulate marijuana and why the DEA believes that federal law is more important than state law.
Raich asserts that because her marijuana is grown for her in California by growers operating not for profit in accordance with state law, that there is no “interstate” commerce for Congress to regulate. In her view, the CSA has no jurisdiction over Californians protected by Prop. 215.
In the view of the Bush administration and many in Congress, the CSA invalidates Prop. 215 and all other state medical marijuana laws. It doesn’t matter that the majority of citizens in 11 states have legalized medical marijuana, Raich’s opponents argue, the federal government still has the right to enforce federal marijuana law anywhere in the US.
Is sex next?
When the case was argued orally at the Supreme Court in late 2004, federal attorneys put forward a twisted, seemingly disingenuous set of arguments. Their main premise rested on a 1942 agricultural law case, Wickard v. Filburn, which the feds claim provides a rationale for regulating individual actions inside states, even if those actions do not involve commerce between people in different states.
Filburn was an Ohio farmer who got in trouble for violating the federal Agricultural Adjustment Act by growing more wheat than Congress allowed him to grow. It’s bizarre that Congress even has the “right” to dictate how much wheat a farmer grows on his land, but the Supreme Court ruled that Congress had a right to regulate Filburn’s wheat growing because other farmers might also grow “too much” wheat, thus affecting Congress’s ability to influence national wheat prices by setting limits on wheat production.
Raich’s lawyers tore the argument apart during the Supreme Court hearing. First of all, Congress is not regulating marijuana growing for the purpose of controlling marijuana’s commodity price. And Filburn was selling some of the wheat he raised. He was also feeding wheat to his cows, and selling some of the cows’ milk. Raich’s lawyers pointed out that Raich’s growers don’t sell marijuana, and that farmers were allowed to grow wheat for personal use.
The federal government’s attorneys told the Supreme Court that medical cannabis users growing cannabis undermines the goals of the Controlled Substances Act, and that the growing of marijuana in eleven medpot states would affect interstate commerce by creating an “aggregate” situation in which legal medical growers create a bigger supply of cannabis nationwide, thus affecting the interstate marijuana market in general.
If Raich and Monson could not grow their own marijuana, the government argued, they would have to buy it on the black market. If they no longer have to buy it because they and thousands of other medpot consumers are growing their own, then demand for marijuana might decrease and black market prices might come down. Besides, the government’s attorneys said, marijuana is a product that is bought and sold, therefore “all” marijuana activity is “economic” activity with interstate implications. The government estimated the total value of all US marijuana commerce as being worth $11 billion annually.
Some of the other arguments presented by government lawyers revealed usually hidden agendas. Government lawyers said that if people are allowed to grow and use cannabis, they’d be less likely to use prescription pharmaceutical medicine, and that pharmaceutical companies would be less likely to create new prescription drugs. This is an almost blatant admission on the part of the government that its marijuana policies are meant to further the profits of private medical corporations.
An analysis of recent trends in relevant Supreme Court cases indicates the “conservative” Supreme Court is increasingly hostile to Congressional over-reaching. In the 1995 case US v. Lopez, which was further elucidated in another case (US v. Morrison), the Court ruled that Congress could only regulate “channels of commerce, instrumentalities of commerce, and action that substantially affects interstate commerce.”
In Lopez, the Court overturned a Congressional law banning possession of firearms near schools, saying Congress had no right to criminalize legal possession of firearms when there was no commerce involved.
In Raich, the federal government has essentially claimed that as long as an activity is related in some way to other activities that might be part of interstate commerce, then Congress has the power to determine the bounds of any subclasses at its own whim. This is an extraordinarily broad definition and would essentially give Congress unlimited power to determine the degree to which it can interfere in state law.
To use a rather unusual analogy, the federal government’s contention that the commerce clause justifies regulation of private legal medical marijuana could also justify Congressional regulation of sexual activity between married people. Sex can be a commodity- bought and sold on the illegal prostitution market. If you follow the government’s twisted logic, the legal activity of sex within marriage could affect prostitution commerce. Thus, sex in marriage could be regulated as part of Congress’s interstate commerce jurisdiction.
In other words, if Congress has the right to regulate private, legal behavior such as a citizen’s medpot use, because such use might have a faint connection with or affect on some for-profit business somewhere else, then Congress can regulate sex and virtually everything else.
Raich’s lawyers argue that federal regulation and federal intervention in a legal non-commercial California cannabis garden is a violation of the constitution. One of Raich’s lawyers, Randy Barnett, sees this case as a massive test of the power of the federal government?a test of whether there will be limits on the power of the central government. If the Court upholds the Justice Department by ruling against Raich, experts argue, the precedent will be a huge expansion of the Commerce Clause, and will give the federal government power to regulate almost anything, no matter how private, no matter how non-commercial, no matter what voters have voted.
A win for the feds would erase the distinction between what is national and what is local, and create a completely centralized government run from Washington, DC. In other words, it would create a dictatorship!
“A ruling for the government in Raich would?allow Congress to [regulate]whatever activity it chooses provided that its statutory scheme was sufficiently large enough. In other words, by the government’s theory, the more power that Congress claims, the more justified is its claim of power,” Barnett says.
The Supreme Court doesn’t like to overturn established laws of Congress, and the current Court has been hostile to marijuana for many years.
Even if Justices wanted to rule in favor of Raich, they’d have to worry about the anti-judge sentiment festering in Congress.
Right-wing Republicans like House Leader Tom DeLay (who is enmeshed in a corruption scandal) are gunning for federal judges. DeLay recently criticized Republican-appointed Supreme Court Justice Anthony Kennedy by name, which is an unprecedented attack on the nation’s highest court by a member of Congress.
DeLay, who is a bull-faced brutal bastard of a politician and a former exterminator, said Supreme Court Justice Anthony Kennedy’s judicial opinions are “incredibly outrageous,” especially since Kennedy was appointed by a Republican and was supposed to do whatever Republican politicians told him to do. DeLay has threatened near-violence against federal judges who disagree with him.
“We’ve got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States? That’s just outrageous,” DeLay said. “And not only that, but he said in session that he does his own research on the Internet? That is just incredibly outrageous.”
International law and the Internet outrage DeLay?! How much more outraged would Boss DeLay be if Kennedy and a majority of his colleagues ruled in favor of Raich?
Perhaps that’s one reason the Raich decision is taking so long. Courtwatchers say the Justices are starting from the assumption that they can’t get away with affirming medical marijuana laws, but they don’t have good legal reasoning to back up their rejection of medpot. So they are working extra hard on the decision, trying to figure out some way to cover their asses with legal arguments that get rid of medpot while leaving the Commerce Clause intact, honoring state’s rights, and sending marijuana proponents home unhappy.
It’s a tough job, but the Justices are lawyers, and lawyers are taught to make weak arguments sound legit. They are taught to lie cleverly; in the service of the drug war, they are likely to do so with Raich as they have done before to other marijuana advocates. Indeed, other drug war decisions made by the Supremes have created a “drug war exception” to the Bill of Rights.
So the betting is that Raich loses. And observers say that if the Court rules for the feds, then the DEA and other law enforcement agencies will again start busting medpot growers, clinics, and patients soon thereafter. The federal war on medical marijuana will begin all over again?with more raids, more pain, more jail terms, more cut plants.
There are two other possibilities. The nine-member Court could offer a 4-4 split decision: Chief Justice Rehnquist is the Court’s 9th member and he is expected to sit out this decision, making it possible for a 4-4 split. If there is a tie, the benefit goes to Raich, Monson and all other medpot patients in states under the jurisdiction of the original court, which means most of the 11 states that have formally legalized medpot.
If the Court gives an outright majority ruling in favor of Raich and Monson, medical marijuana growers and patients in any state with legalized medpot would be safe from federal attack. This ruling would completely change American marijuana policy, and would be a giant step towards a more rational cannabis policy in general.
Few medpot people are openly optimistic about Raich’s chances; many marijuana industry insiders expect defeat. If the Court goes against Raich, the medical marijuana community will have nowhere to turn, except for civil disobedience, and regulators.
The Coalition to Reschedule Cannabis has already started forcing the feds to review marijuana’s legal status so it can be treated more like a medicine. This review was boosted by Canadian pharmaceutical approval of the natural cannabinoid extract medicine called Sativex.
The Coalition’s goal is to force the feds to admit that cannabis is a medicine. On the other hand, some marijuana activists fear that Sativex and other non-smoked cannabis drugs could hurt Raich’s case. They say the government could refuse to legalize whole marijuana while claiming to demonstrate “compassion” by allowing corporate marijuana extracts marketed by pharmacists and doctors.
Regardless, the Supreme Court must hand down its Raich ruling by the end of June. Courtwatchers say that the longer it takes, the more chance there is that medical marijuana could emerge victorious.
If Raich is victorious, California and the other medpot states in the 9th circuit will become safer for pot patients and their growers than Vansterdam or Amsterdam.
If regulators won’t change medpot regulations and if the Supremes refuse to affirm voter rights and medical marijuana rights, then marijuana will continue to be totally illegal in the US as it has been since 1937.
Acting against the wishes of the majority of Americans, the federal government will implement its anti-marijuana regime with more zeal than ever before. Tens of thousands more people will go to jail, be deprived of medicine, and be otherwise terrorized by federal prohibition of one of the most effective medicines known to humanity.