Medical marijuana win in federal court.
December 17, 2003 8:20 AM Subscribe

Medical marijuana win in federal court. The 9th U.S. Circuit Court of Appeals ruled 2-1 Tuesday that prosecuting these medical marijuana users under a 1970 federal law is unconstitutional if the marijuana isn't sold, transported across state lines or used for non-medicinal purposes.
posted by skallas (31 comments total)

Let me introduce the enemy of the state:

Raich, a 38-year-old Oakland woman suffering from ailments including scoliosis, a brain tumor, chronic nausea, fatigue and pain,
posted by magullo at 8:41 AM on December 17, 2003

Here's a good opinion piece on the case, from 14 months ago. Here's a quotation from that editorial:

But given the unconstitutionality of federal drug prohibition overall, and the consequent illegality of the DEA's existence, use of medical marijuana by patients and the supply of it to them by local cooperatives must fall far outside of the federal government's purview by any reasonable reading of that clause inscribed in the Constitution long ago -- interstate commerce, and regulation thereof -- not prohibition of private intra-state decisions made by consenting adults.

Basically, the implication of the 9th Circuit's decision is that when there is no commerce, no Federal Interstate Commerce law applies. Since IC is the basis for Federal drug laws, those laws canot apply when there is no commerce at all.

It still leaves open the possibility that individual State laws may still apply, since they don't rely on IC.

But, if this reasoning holds, then States would be free to reevaluate their laws.

It really would make the most sense if it were not illegal to grow your own marijuana, for whatever reason, and even give it away. As long as there's no commerce involved, it should be free from government involvement. (all the traditional arguments still apply here)

This ruling is an important precedent, if it holds up under further scrutiny, which could only be by the US Supreme Court. The ruling appears sound, but that doesn't mean that the USSC couldn't contort their reasoning enough to reverse it.
posted by yesster at 9:00 AM on December 17, 2003

Dammit, why do I keep forgetting italics lately? Only the second paragraph of my post, above, is a quotation from the article (the para. beginning with "But given the unconstitutionality . . ."
posted by yesster at 9:01 AM on December 17, 2003

Holy cow. The ninth circuit is actually applying the commerce cause using an original-intent/ strict-constructionist/plain-language reading.

I'm floored.
posted by trharlan at 9:08 AM on December 17, 2003

Randy Barnett's take at Volokh.
posted by trharlan at 9:11 AM on December 17, 2003

God bless the ninth circuit. Seriously. They're the only ones with their eyes on the ball lately.
posted by Hildago at 9:59 AM on December 17, 2003

i'm all in favor of the ruling, but don't something like 60% of ninth circuit decisions get overturned?
i know that they are far and away the most liberal federal court around today.
posted by dolface at 10:09 AM on December 17, 2003

It really would make the most sense if it were not illegal to grow your own marijuana, for whatever reason, and even give it away. As long as there's no commerce involved, it should be free from government involvement. (all the traditional arguments still apply here)

The only problem is that jurisprudence does not support this position. In a case call of Wickard v. Filburn, (also see People v. Perez) the court upheld legislation, as applied to the defendant, that barred wheat production without approval from the government where a farmer grew and consumed his own wheat without selling any of it. The court stated the defendant's activity was "commerce" on the theory that if the government could regulate some people in the wheat industry, they could regulate all actors in that industry, even those who do not sell their wheat. This case is still good law despite the economic activity requirement of United States v. Lopez. The situation here seems to be nearly on all fours with Wickard v. Filburn.

While I'm sympathetic to people like Raich, the 9th Circuit's Commerce Clause anlysis is likely to be overturned if this case appealed.

I would to say that destroying the government’s Commerce Clause power would weaken the Federal Government’s ability to enforce anti-discimination laws such as it did in the landmark cases of Heart of Atlanta Hotel v. United States and Katenbach v. McClung.

(let the flaming begin for trying to save civil rights, but opposing uprooting long standing doctrines that prevent legal weed)
posted by Bag Man at 10:51 AM on December 17, 2003

I have a 19 year old friend who suffers so much that he has to smoke pot every day, not get a job, drop out of high school, and try to act like none of this is a big deal. He needs medical marijuana!

True story. On the other hand, I smoke pot every once in a while and I am not in such a miserable position.
posted by Keyser Soze at 11:15 AM on December 17, 2003

In a case call of Wickard v. Filburn, (also see People v. Perez) the court upheld legislation, as applied to the defendant, that barred wheat production without approval from the government where a farmer grew and consumed his own wheat without selling any of it.

Wow. It's amazing how far we've fallen with so few noticing.
posted by rushmc at 2:35 PM on December 17, 2003

Heh. The outcome of this case was pretty obvious. The same court ruled just a month or so ago that the government can't use the Commerce Caluse to prevent you from building home-made machine guns(!) as long as you don't sell them.

Something for liberals and something for conservatives. Everyone wins with freedom!
posted by delmoi at 9:08 PM on December 17, 2003

Government approval to grow wheat?

Shit, guys, it's time to overgrow the government. Buy a bag of wheat and sow it in public places! Scatter it in the ditches and the national forests! Plant it outside City Hall and the copshop!

When wheat grows freely everywhere, the laws must tumble down!

Ahem.

FFF,

The law that was unheld in Wickard v. Filburn was a rationing law from the WWII.

Wow. It's amazing how far we've fallen with so few noticing.

Without Wickard v. Filburn it is quite possible that that the civil rights movement would not been so successful in enforcing anti-discrimination laws. I guess smoking weed is more important that basic human rights.

Besides without such as theory, as shown in People v. Perez, the government would not be able to enforce or prove many RICO and/or loan sharking cases. And I know that growing weed is so much more important that stamping out the mafia.
posted by Bag Man at 8:14 AM on December 18, 2003

Riiiiight. If the people are allowed to grow wheat, then slavery will come back in full force and RICO will be crippled to the point of uselessness!
posted by five fresh fish at 12:01 PM on December 18, 2003

I guess smoking weed is more important than basic human rights.

jeez, nice sanctimony. how's the (smokeless) air up there?

i would contend that "smoking weed" (along with fasting, meditating, fucking, gorging, masturbating, praying, dancing, etc.) is a basic human right that falls under the category of freedom of thought and/or expression.

i certainly support anti-discrimination laws, but i think of them as secondary, practical concepts rather than fundamental rights. so yes, legalizing the smoking of weed (and ensuring various other freedoms) is more important than civil rights legislation. my2c.

this is a GREAT decision btw. it's time for an end to the creative interpretation of the commerce clause. let true Americans make their own food, guns and drugs, dammit!
posted by mrgrimm at 1:08 PM on December 18, 2003

Riiiiight. If the people are allowed to grow wheat, then slavery will come back in full force and RICO will be crippled to the point of uselessness!

fff and grfrimm,

You'll have totally missed the point or are no longer seriously discussing. No one was arguing that invaliding WWII rationing would have anything to do with invalidating bodies of law was not even invent in the 1940s. Rationing wheat made a lot of since in during WWII, now is does not so Congress repealed the law. The main issue is that not the substance of the law, but how the law is enforced. Congress has little power to regulate crime (even crime people here think should be crimes) so it must use the commerce clause to the widest extent possible. Why? Because states lack the will, political freedom and resources to combat all types of crime, practically organized crime.

i certainly support anti-discrimination laws, but i think of them as secondary, practical concepts rather than fundamental rights. so yes, legalizing the smoking of weed (and ensuring various other freedoms) is more important than civil rights legislation.

I'll guessing you’re being sarcastic. I think equal protection under the law is a basic human right. Beside it would crazy to have power to regulate some weed and not other weed based on such a metaphysical thing as state lines. Is weed that is transported from IL to WI any more "illegal" that weed grown only in IL? The Court has recognized that such a dichotomy is just silly.

The real point is that somes you better watch what you wish for because you just might get it. Having medical weed is a pretty good idea, but it’s not worth the risks associated with taking away Congress's the most power tool for enforcement of our freedoms and rights.
posted by Bag Man at 2:11 PM on December 18, 2003

I don't believe there is s need to distort the commerce laws to achieve the ends. There are other ways to accomplish the same anti-crime goals.
posted by five fresh fish at 4:40 PM on December 18, 2003

There are other ways to accomplish the same anti-crime goals.

Go right ahead. I'm sure that Kennedy, LBJ and FDR would have liked to have you in theirs cabinets for your advice. Because then they would not have to use the commerce to pass and enforce such programs as the New Deal, Great Cities, Great Societies and other civil rights legislation. The fact of the matter is that without the Commerce Clause Congress can only legislate with its taxing and spending powers. Both taxing and spending powers have limitations, but the Commerce Clause is a plenary power.

I'd bet your argument would change if is were not about weed. Say, how about preventing men from beating women? Where were you when the Court narrowed the Commerce Clause in Lopez to strike down stiff measures to combat abuse?

Frankly this is particularistic politics at its worse. The goal of the medical weed movement should be convince people weed can help sick people and not uproot the long standing and useful doctrines for their narrow agenda.
posted by Bag Man at 5:34 PM on December 18, 2003

It is still questionable whether the US government can do what it's doing under the Constitution, case law notwithstanding. The problem with granting largesse through the government is that it always becomes more powerful, and becomes tyrannical to some. But it doesn't have to be that way, even if you take the modern interpretation of the commerce clause. The CSA is just flawed, and the idea that the fed should have control of policing bodies is questionable.
posted by krinklyfig at 9:33 AM on December 21, 2003

It is still questionable whether the US government can do what it's doing under the Constitution, case law notwithstanding.

Case law is law. News flash: the Supreme Court, and no one else, has the final say on the interpretation of the Constitution. In krinklyfig's world people like Bush would likely make interpretations of the Constitution, but I'd rather have the court do it.To the Court the Commerce Clause is a closed issue, but I guess because they are jackbooted thugs they know nothing.

and the idea that the fed should have control of policing bodies is questionable.

Wrong again. Aside from making laws that violate the Constitution (for example: anti-abortions laws or anti-sodomy laws) the Federal government has always had the power to pass laws for the promotion of health and safety. I'm sure krinklyfig wants a world without the FDA, but I sure do not. Following krinklyfig's arguments, krinklyfig also wants the most of the Civil Rights Bills to be made unenforceable to support one narrow view.

Banning narcotics does not equal tyranny, particularly when it was done via proper authority. Medical weed is a moral and legislative issue, not one that should involved destroying Congress's power to protect and promote real life liberties (such as the right for minorities to vote and privacy rights) with court oversight (all that krinklyfig wants to do away with).
posted by Bag Man at 3:06 PM on December 21, 2003

I am not comfortable with the idea that the ends justify the means in this case. Unless the Commerce Act is something entirely other than what I thought it was, it should not have language dealing with non-Commerce issues.
posted by five fresh fish at 6:15 PM on December 21, 2003

it should not have language dealing with non-Commerce issues.

Growing weed is commerce (people do it to make $$$$).
posted by Bag Man at 6:56 PM on December 25, 2003

Legalizing weed would remove the commercial context.
posted by five fresh fish at 12:29 AM on December 26, 2003

Or, even more sensibly, legalizing growing and possession of personal amounts, while keeping large-scale commercial grows and distribution illegal. The criminal gangs that run the illegal drug industry would be badly hurt by such a law, while at the same time the court system and jail system would experience great, great relief.

That the government does not do so is an indication to me that gang activity and jailing of ordinary folk is somehow profitable to politicians.
posted by five fresh fish at 10:38 AM on December 26, 2003

Legalizing weed would remove the commercial context.

How do figure this? If weed were legal it would still be sold for money and still be "commerce."

Or, even more sensibly, legalizing growing and possession of personal amounts, while keeping large-scale commercial grows and distribution illegal. The criminal gangs that run the illegal drug industry would be badly hurt by such a law, while at the same time the court system and jail system would experience great, great relief.

That the government does not do so is an indication to me that gang activity and jailing of ordinary folk is somehow profitable to politicians.

Good point, but you run into proof problems. It would be easy for large scale operations to be made to look like several small "personal amounts." Doing this end around would frustrate the purpose of stopping the criminal, organized drug trade. I would suggest reading People v. Perez, because it is decided on this very rational.

FFF this is perhaps the most lucid posy I have ever seen you seen you make. The problem is that the Commerce is what it is for good reason and see not point it changing it for one small issue.
posted by Bag Man at 12:19 PM on December 29, 2003

Legality means no one would be willing to pay high prices.

When the stuff is commoditized to the point of being sold at a coffee shop or given away by home gardeners, the gang element is going to be attracted to marijuana as much as they are cappucino and zucchini.

The underworld deals in drugs because it is hugely profitable. It is hugely profitable because it is a risky business. It is a risky business because it is kept illegal. It is kept illegal because.... ?

...well, because it is hugely profitable to the underworld.

Break the endless loop by eliminating the risk. Prices plummet and the underworld goes on to other things.

The best way of eliminating the risk/driving down prices is to make it legal.
posted by five fresh fish at 1:25 PM on December 29, 2003

Legality means no one would be willing to pay high prices.

Your point is well taken, but you seem to arguing past me. Putting your staw-man aside for a second, I was not debating the relative benefits of legalization. Rather, I was pointing out that if weed were legal it could still be regulated by Congress and stating your argument has been considered and rejected by the court (at least in other areas of criminal activity).

The fact remaind that even if weed were sold legally Congress could regulated it because any sale is commercial activity. Hence selling legal weed would fall within the things Congress can use the Commerce Clause to regulate. Whether an object is contraband or not is irrelevant for a Commerce Clause analysis.
posted by Bag Man at 12:14 PM on December 30, 2003

Okay, so let's start fresh. What is the Commerce Act's principal purpose?
posted by five fresh fish at 1:26 PM on December 30, 2003

What is the Commerce Act's principal purpose?

The purpose is to draw a distinction between what a state can regulate and what Congress can regulate. States can regulate for the "health and safety" of its citizens, but cannot regulate so that interstate commerce is burdened (via the implied "Dormant Commerce Clause"). Congress on the other hand, has been granted broad discretionary powers to regulate interstate commerce regardless of the purpose or the ends of the legislation in question. That brings up the question of what is "interstate commerce?" Among many factors, which includes the modern realities of an integrated and modern economy, "interstate commerce" means economic activity. Hence, if the conduct is economic activity (i.e. the activity or conduct to be regulated is done for $$$) Congress can regulate it by way of the Commerce Clause. As a general rule, if Congress can regulate any actor doing an activity Congress can regulate all actors doing that activity.

Also important here is that if Congressional regulation conflicts with state regulation, the Supremacy Clause dictates that the federal law wins out.

Applied to the case at had, here a state law conflicts with a federal law. Hence if Congress regulated pursuant to valid power, the federal law should win out. Under correct, current Commerce Clause analysis it should be found that Congress did in fact regulate pursuant proper authority. Why? The growth and sale of weed is economic activity. Clearly at least some weed is grown to be sold. Selling the weed is the jurisdictional hook which allows Congress to ban weed growth by all actors. Why? The rational is that any cultivation of weed affects the market for weed and because of proof problems at trial. Hence, I believe that the Supreme Court will likely take and overturn this ruling.

I hope that explains it simply and accurately.
posted by Bag Man at 11:45 AM on December 31, 2003

Okey dokey. So the Commerce Clause is a mighty big sledgehammer with which the federal government can lay the smack-down on any wayward states and all people who transport product -- for sale or for free -- across state lines.

In that case I suppose it's being used appropriately. Seems awful crude, though.

Not quite. Perhaps in this case it's the Supremacy Clause that is giving the "smack-down."

Also, don't forget that there are there political limits and other constitutional limits on Congress’s ability to regulate. Not to mention that there are a lot of things in life that is not commerce.

I think you're being narrowed minded. The "mighty big sledgehammer" is needed to protect your rights. I'm sure you didn't have a problem with "the smack-down" given to southern states in the 50s and 60s that refused to pass or enforce anti-discrimination laws. Or do you oppose Congress’s right to regulate business and commercial production? I mean we can have medical weed, but all we need to give up such silly things like OSHA or minimum wages. Change the commerce clause and you endanger those laws. Thus is the interplay of the checks and balances in federalism. If you want weed to be legal for medial uses, or otherwise, convince Congress.
posted by Bag Man at 1:48 PM on January 1, 2004

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Medical marijuana win in federal court. December 17, 2003 8:20 AM Subscribe

Medical marijuana win in federal court.
December 17, 2003 8:20 AM Subscribe