Supreme schizophrenia

Justice John Paul StevensJustice John Paul StevensThe Supreme Court’s prohibition-friendly ruling in the Gonzales versus Raich case has generated far-reaching reverberations and a dizzying spin cycle as advocates on all sides of the debate seek to analyze and capitalize on the ruling.
The two California medical patients at the center of the controversy, 39-year-old Angel Raich and 48-year-old Diane Monson, vowed to continue using cannabis, and to continue fighting in the court system.

“If I stopped using cannabis I would die. I am not going to stop,” Raich said after the Supreme Court ruled on June 6, 2005 that Congress has the Commerce Clause right to regulate medical marijuana in states that have legalized it. “But just because we lost this little battle doesn’t mean the war is over.”

Monson suffered a DEA raid in August, 2002 during which her six medical marijuana plants were stolen by the DEA after a tense three hour stand-off between DEA agents and Butte County District Attorney Mike Ramsey, who told the agents to stop interfering in his county’s medpot policies.

“I’m going to have to be prepared to be arrested. I’m way disappointed. There are so many people that need cannabis,” Monson said after hearing that the Supremes had ruled against her.

The federal government, represented by Attorney General Alberto Gonzales, contended that the federal Controlled Substances Act (CSA) which makes marijuana completely illegal under all circumstances is the supreme law of the land, taking precedence over state laws regarding marijuana.

Raich, Monson and two anonymous marijuana grower “caregivers” who can legally grow and possess cannabis as authorized by California’s Prop. 215 medical cannabis law passed in 1996, contended that the constitution’s Commerce Clause fails to give Congress the right to federally regulate activity allowed by state law when that activity does not involve “interstate commerce.”

In a 6-3 decision, the Supreme Court disagreed with Monson and Raich, asserting that their growing and/or possession of marijuana inherently impacts the national marijuana market, even though the court agreed that the women’s marijuana activities were conducted entirely within the borders of California.

This alleged national “economic” impact triggers the Commerce Clause, the majority ruling stated, validating federal prohibition laws that trump state medical cannabis laws.

Justice John Paul Stevens, writing the majority opinion, said Congress’ power to regulate interstate commerce includes authority to make it illegal to grow or use marijuana regardless of state law.

He said the CSA “is a valid exercise of federal power, even as applied to the troubling facts of this case,” because production of marijuana in California “may have a substantial impact on the interstate market for this extraordinarily popular substance.”

The “troubling facts” referred to by Stevens indicate a possible softening of the court’s position regarding the medical efficacy of marijuana, which was not at issue in this case.

It also shows that the US justice system is not necessarily set up to render fairness or to provide “wise” decisions, but is instead a legalistic, narrowly-focused process that can produce “technically correct rulings” that lack common sense, compassion and conscience.

Stevens wrote that, “The case is made difficult by [Raich and Monson’s] strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes [emphasis added]. The question before us, however, is not whether it is wise to enforce the statute in these circum?stances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case.”

The court’s ruling showed the power of credibility and character attributed to Raich and Monson, and to their claim that marijuana is a safe and effective medicine.

Federal law and federal officials such as White House drug czar John Walters say marijuana has no medical value. Walters and others repeatedly accuse medical pot patients, their doctors and their advocates as being frauds who pretend to be concerned about medical use of marijuana to hide their “real agenda” of legalizing recreational marijuana.

Such criticisms are sometimes bolstered by commercial marijuana growers and recreational users who engage in non-medical marijuana activities and then retroactively claim to be protected by medical marijuana laws after they’ve been arrested for marijuana crimes that had nothing to do with medical pot.

Justice Stevens assented to the legitimacy of Raich and Monson’s medical use, and virtually acknowledged that whole marijuana has medical value.

He wrote: “Angel Raich and Diane Monson are Cali?fornia residents who suffer from a variety of serious medi?cal conditions and have sought to avail themselves of medical marijuana pursuant to the terms of the Compas?sionate Use Act. They are being treated by licensed, board-certified family practitioners who have concluded, after prescribing a host of conventional medicines to treat respondents’ conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursu?ant to their doctors’ recommendation, and both rely heav?ily on cannabis to function on a daily basis. Indeed, Raich’s physician believes that forgoing cannabis treat?ments would certainly cause Raich excruciating pain and could very well prove fatal. Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two care?givers, litigating as “John Does,” to provide her with lo?cally grown marijuana at no charge. These caregivers also process the cannabis into hashish or keif, and Raich her?self processes some of the marijuana into oils, balms, and foods for consumption.”

Stevens says the Court acknowledges that “evidence proffered by [Raich and Monson] in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I.”

Schedule I (One) is the CSA designation for marijuana and drugs like heroin, which the government says are totally without medical usefulness and have a high potential for abuse.

Even though Stevens and other majority jurists seemed to endorse the idea that marijuana is medicine, they rejected the argument that marijuana’s possible medicinal value made it unregulatable by Congress.

Even if marijuana is acknowledged as a bona fide prescribable medicine, it still falls under a regulatory process. As Stevens wrote:

“The CSA requires manufacturers, physicians, pharmacies, and other handlers of controlled substances to comply with statutory and regulatory provisions mandating registra?tion with the DEA, compliance with specific production quotas, security controls to guard against diversion, re?cordkeeping and reporting obligations, and prescription requirements. Furthermore, the dispensing of new drugs, even when doctors approve their use, must await federal approval. Accordingly, the mere fact that marijuana? like virtually every other controlled substance regulated by the CSA? is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA.”

The three justices who dissented from the majority’s opinion, Justices Rehnquist, O’Connor, and Thomas, substantially agreed with Raich’s claim that Congress has no right to regulate medicinal marijuana in states where it is legalized. But they went even further.

Justice Clarence ThomasJustice Clarence ThomasJustice Clarence Thomas, often criticized for his conservative views, emphatically echoed Raich’s core arguments in an exceptionally strong dissent that had marijuana advocates surprised and cheering.

“Respondents Diane Monson and Angel Raich use mari?juana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana,” he said in his dissent. “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything? and the Federal Government is no longer one of limited and enumerated powers. Respondents’ local cultivation and consumption of mari?juana is not ‘Commerce … among the several States.’ By holding that Congress may regulate activity that is neither interstate nor com?merce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents’ conduct, however, is not “necessary and proper for carrying into Execution” Congress’ restrictions on the interstate drug trade. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents’ conduct.”

Thomas went on to explain his definition for the kinds of “commerce” Congress could regulate, arguing that medpot patients’ use and growing of marijuana in this case are NOT regulatable commerce:

He wrote: “The Commerce Clause empowers Con?gress to regulate the buying and selling of goods and services trafficked across state lines. The Clause’s text, structure, and history all indicate that, at the time of the founding, the term “‘commerce’ consisted of selling, buying, and barter?ing, as well as transporting for these purposes.” Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Throughout founding-era dictionaries, Madison’s notes from the Constitutional Convention, The Federalist Pa?pers, and the ratification debates, the term “commerce” is consistently used to mean trade or exchange? not all economic or gainful activity that has some attenuated connection to trade or exchange. The term commerce commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Even the majority does not argue that respondents’ con?duct is itself “Commerce among the several States.” Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California? it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that ‘commerce’ included the mere possession of a good or some purely personal activity that did not in?volve trade or exchange for value.”

Thomas’s dissent was so strong that it lends credence to those who believe that America’s “Founding Fathers,” who themselves grew cannabis as hemp, would never have authorized or anticipated that the US Congress would decades later ban the growing or use of specific plants.

“In the early days of the Republic,” Thomas says, “it would have been unthinkable that Congress could prohibit the local cultivation, possession and consumption of marijuana [emphasis added].”

Justice Stevens, writing for the majority in response to the dissenters, picked up on the pro-legalization implications of the dissenters’ statements.

Stevens wrote: “More fundamentally, if, as the principal dissent contends, the personal cultiva?tion, possession, and use of marijuana for medicinal pur?poses is beyond the ‘outer limits’ of Congress’s discretion, it must also be true that such personal use of marijuana (or any other homegrown drug) for recreational purposes is also beyond those ‘outer limits,’ whether or not a State elects to authorize or even regulate such use. Justice Thomas’s dissent suffers from the same sweeping implications. That is, the dissenters’ rationale logically extends to place any federal regulation (including quality, prescription, or quantity controls) of any locally cultivated and possessed controlled substance for any purpose beyond the reach of Congress’ regulatory jurisdiction… beyond the ‘outer limits’ of Congress’ Commerce Clause authority… Moreover, in addition to casting aside more than a century of this Court’s Commerce Clause jurisprudence, it is noteworthy that Justice Thomas’s suggestion that States possess the power to dictate the extent of Congress’ commerce power would have far-reaching implications beyond the facts of this case. For example, under his reasoning, Congress would be equally powerless to regulate, let alone prohibit, the intrastate possession, cultivation, and use of marijuana for recreational purposes, an activity which all States “strictly control[l].” Indeed, his rationale seemingly would require Congress to cede its constitutional power to regulate commerce whenever a State opts to exercise its “traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens.”

Thus we have, even if we are not law students or lawyers, a concise and energizing debate between the members of the highest court in America.

On one side of the debate are Thomas and the other dissenters, who are acknowledging that the prohibition of plants is not what the writers of the constitution intended as a Congressional power, especially when individual states have already adopted laws regarding such plants.

On the other side of the debate are the majority represented by Stevens, who say that all marijuana activity, no matter where it takes place, no matter what state law says, no matter how private and non-commercial, is somehow interstate commerce that Congress can regulate.

The silver lining in this dreary cloud is that Stevens and other majority jurists apparently indicate that they finally believe, contrary to drug warrior claims, that marijuana does have medical value.

Spin cycle

Advocates on all sides of the issue provided rather one-sided statements about what the decision means and its practical effects on medical cannabis patients, growers and providers.

Law enforcement and municipal officials in California and other medpot states have said for months that they have been waiting for the Raich decision before they make final determinations about how to deal with issues regarding marijuana cultivation and marijuana clubs. It is now anticipated that more municipalities will make permanent their currently temporary bans or limitations on medpot clubs.

Some medical marijuana advocates say the ruling does not invalidate state medical cannabis laws and that those laws still offer significant protections.

On the other hand, the Oregon government temporarily stopped issuing official medical marijuana cards.

“We want to proceed cautiously until we understand the ramifications of this ruling,” said Dr. Grant Higginson, a public health officer in charge of Oregon’s medpot program. “We contacted the state attorney general to ask for a formal legal opinion on how the court’s ruling affects Oregon’s program.”

Higginson said the Oregon program will continue to receive and process applications, but no registration cards will be issued until the Department of Justice provides further direction.

DEA and US Justice Department officials either refused comment or attempted to downplay or evade questions about whether the ruling would result in renewed federal enforcement of marijuana laws in medical cannabis states. DEA has always claimed that it only goes after major traffickers and growers, but its actions have contradicted those claims, and few medical cannabis patients trust anything the agency says.

In Colorado, where 668 people have medical cannabis certificates that let them use and grow marijuana, a spokesperson for the US Attorney’s office said if investigators find a state-certified person in possession of marijuana they will seize the herb, “just as we have always done.”

Drug Czar John Walters claimed that the Supreme’s decision “marks the end of medical marijuana as a political issue.”

And even though the Court specifically said the Raich case was not an evaluation of marijuana’s medical effectiveness, Walters and other drug warriors hailed the ruling as a deathblow to those who claim medical usefulness for cannabis, falsely alleging the ruling indicates that “to date, science and research have not determined that smoking a crude plant is safe or effective.”

A spokesperson for the Marijuana Policy Project said state medical marijuana laws are still valid and that feds rarely bust anybody for medical cannabis. A spokesperson for NORML said the same thing, although he admitted that at least 60 people have been busted in medpot states by federal police since 2001.

California Attorney General Bill Lockyer, decrying the ruling and what he described as a disconnect between Congress and the citizenry regarding medical marijuana, tried to reassure Californians.

“People shouldn’t panic,” he said. “There aren’t going to be many changes. Nothing is different today than it was two days ago, in terms of real-world impact.”

California medical patient Joel Steneck disagreed with Lockyer and others, saying that “cheerful spinmeisters who want to put the best, most optimistic face on this ought to ask Ed Rosenthal, Ed Lepp, and Valerie Corral if they think [the Court’s ruling]ruling will have no impact.”

“The fact is that most of our clubs are again worried about raids; so are most of our growers,” Steneck argues. “The local police or prosecutors will turn medical cases over to the feds again. The feds came in here for six plants with Monson, and to Valerie’s place and wiped it out for no reason. The feds appealed the original ruling that was in favor of Valerie and Angel. Why did they fight so hard to defeat us if they don’t intend to come back here and start fucking with us again? Lockyer is weak to say nothing has changed. He ought to file a lawsuit against the federal government right now! And I remember when the government here [in San Francisco]said that if the feds tried to come in and enforce federal laws, that there would be an armed confrontation between our sheriffs and their DEA.”

Robert Raich, Angel Raich’s husband and a medpot attorney, said, “This may be a temporary setback but it is only one in a long battle to try to give seriously ill patients the medicine they need to make them healthy.”

Boston University law professor Randy Barnett, the primary lawyer for Raich and Monson, said his legal team will return to lower courts to claim that federal prohibition violates constitutional due process rights.

Raich and other medpot advocates said they now place increased emphasis on supporting action in Congress designed to legalize medical marijuana and protect patients.

One such action is likely to be put forward next week as an appropriations amendment by Democratic Congressman Maurice Hinchey. The amendment bars the Justice Department (which includes DEA) from spending money to arrest and prosecute medical marijuana users.

Hinchey has tried three times since 2001 to get the amendment passed. Last year, it was rejected by a vote of 268-148.

“We hope that the amendment will keep growing in support every year, but we are realistic that there probably won’t be a huge jump,” explained Hinchey’s Chief of Staff Wendy Darwell.

Monson’s attorney, David Michael, noted the schizophrenia that now characterizes US marijuana laws. He said medical users “have one sovereign telling them what they’re doing is healthy and therapeutic and another sovereign, the federal government, telling them it’s criminal.”

Medical patient Steneck says he just returned from a visit to Southern California, where supporters of pop star Michael Jackson are holding a vigil for the aging superstar, who is awaiting a jury decision that will determine if he is convicted of child molestation.

“There’s thousands of people from all over the world spending thousands of dollars to make placards and do protests and sit around at the Jackson courtroom to show support for this lame entertainer who probably molested a bunch of little kids,” Steneck said. “And I wonder where is the same passion and dedication from our community and Americans in general when the government wants to arrest people for what we legalized. I think that what this ruling means is we are going to have to grow more pot, smoke more pot, sell more pot, and overwhelm the feds until they change their laws and give up on this war completely. And if they want a war, we should make sure there are two sides fighting!”Justice Clarence Thomas

  • See Ed Rosenthal’s reaction to the ruling on Democracy Now!
  • Comments