On December 16, 2003, American medical marijuana patients won a major court victory. The Ninth US Circuit Court of Appeals ruled that the federal government has no authority to arrest or charge those who possess and grow medical pot in a state which allows it, as long as no selling is involved.
The decision came as the result of a lawsuit filed against Attorney General John Ashcroft and DEA Administrator Asa Hutchinson in October 2002.
The lawsuit, launched by medical marijuana patients Angel McClary Raich and Diane Monson, plus Raich’s two anonymous caregiver growers, charged that Ashcroft and Hutchinson exceeded their authority by having their agents seize privately-grown medical cannabis from California patients and caregivers.
Raich suffers from an inoperable brain tumor and wasting syndrome, and credits cannabis with freeing her from her wheelchair. Monson suffers from a degenerative spinal condition. Raich sued after her six-plant grow ? apparently a major threat to Homeland security ? had been destroyed by federal agents.
The panel of judges agreed, two to one, that the feds have no jurisdiction because “the intrastate, non-commercial cultivation, possession and use of marijuana, for personal medical purposes on the advice of a physician is, in fact, different in kind from drug trafficking.”
The ruling covers the seven states in the Ninth Circuit that have passed medical marijuana laws: Alaska, Arizona, California, Hawaii, Nevada, Oregon and Washington. Federal agents who make arrests for possession or cultivation of non-commercial medical pot in these states will be in contempt of court.
Federal prosecutors have traditionally claimed that federal anti-pot laws automatically override state laws which allow cannabis to be grown and used for medical reasons.
The Raich decision is a rare example of a court questioning the federal government’s power to regulate drug trafficking under the so-called “commerce clause” of the US Constitution. The entire Controlled Substances Act (CSA) derives its constitutional authority from this clause. Federal prosecutors typically stretch the term “commerce” to include growing personal marijuana at home.
The ruling means that the underpinning of the modern American drug war, the CSA, was found to be unconstitutional, at least in part. “It’s the first encroachment on the CSA in its almost 33 years,” said David Michael, one of the Raich attorneys. “Never before has it been tinkered with by an appellate court.”
Should the decision survive review by the full Ninth Circuit, as seems likely, then the feds will no doubt appeal to the Supreme Court. Conservatives on the Supreme Court who have long sought to limit federal interference in state matters will have to tie their own prior rulings in knots not to uphold this ruling.
This court ruling will also have an impact in the upcoming combined appeal of the Santa Cruz Wo/Men’s Alliance for Medical Marijuana (WAMM) and the Oakland Cannabis Buyers’ Cooperative (OCBC). WAMM does not sell marijuana, instead sharing it, and so they should be covered by this ruling. However, the OCBC sold their med-pot to patients, so the outcome of their appeal is by no means certain.
Supreme Court Justice Clarence Thomas pretty much called for patients to bring it on in his 2001 opinion striking down the strict medical necessity defense in the original OCBC case. Perhaps this time the Supremes won’t dodge the overarching issues of commerce, states’ rights and a citizens right to remain free from pain and suffering ? the “underlying constitutional issues” that in 2001 Justice Thomas deferred to another day.
Referring to Justices Thomas and Scalia’s prior efforts to limit federal control of commerce, another Raich/Monson lawyer, Randy Barnett, wrote in the National Review, “If this case eventually goes to the Supreme Court, we will learn whether the more conservative Justices who developed this doctrine have the courage of their convictions when it applies to activities of which they may disapprove.”