San Francisco, Oct 7, 2003: The U.S. Ninth Circuit Court of Appeals heard oral arguments in a lawsuit by Prop. 215 patients Angel Raich and Diane Monson challenging the constitutionality of the federal government’s ban on personal use and cultivation of marijuana for medicine under California law. The case involves the same basic issues that were raised in a similar appeal by the Oakland Cannabis Buyers’ Cooperative and Wo/Men’s Alliance for Medical Marijuana before a different Ninth Circuit Panel three weeks ago. The salient difference in that Raich and Monson were in no way engaged in distribution and are seeking only the right to use and grow medicine for relief of their own personal pain and suffering in accordance with state law.
The plaintiffs’ attorney, Randy Barnett, stressed that the case involves “wholly intrastate, non-economic activity” of a kind that Congress does not have power to reach, in the same way that recent Supreme Court decisions (Lopez and Morrison) have held that Congress cannot regulate guns in school zones or violence against women.
Although the plaintiffs raised three other lines of argument – that California’s law is protected by state’s rights, that patients have a fundamental right to relief from pain and suffering, and that the DEA’s actions constitute “interference of liberty” under the Supreme Court’s Lawrence v. Texas ruling – the oral arguments focused exclusively on the interstate commerce issue.
The case was heard by justices Pregerson and Paez – Democratic appointees with a liberal reputation – and by visiting justice Beam, a Reagan appointee from the Eighth Circuit.
Justice Beam questioned why Raich & Monson’s marijuana plants were different from the home-grown wheat that featured in the ruling precedent, Wickard v Filburn, where the Supreme Court ruled that the government could regulate wholly intrastate economic activity if it were part of a larger class of activities constituting interstate commerce. Prof. Barnett replied that Filburn was a commercial wheat farmer, and his activities were therefore economic in a way that his clients’ were not.
US Attorney Mark Quinlivan stressed that a slew of Ninth Circuit precedents had consistently held that all marijuana is within the government’s powers of regulation under the interstate commerce clause. In rebuttal, Barnett argued that all of the precedents either involved plainly economic activity or preceded the Supreme Court’s Morrison decision.
Barnett also took note of the Ninth Circuit’s recent McCoy ruling, in which it held that personal possession of child pornography was beyond the scope of Congress’ powers to regulate interstate commerce. “Your case is really a McCoy case, right?” asked Justice Paez – a pregnant question that delighted medical cannabis supporters.
No decision is expected until after the OCBC/WAMM appeal is decided, hopefully sometime in the next 5 or 6 months.
Ninth Circuit Hears OCBC/WAMM Appeal
San Francisco, Sept. 17, 2003: The 9th Circuit Court of Appeals heard arguments on a key constitutional challenge by the Oakland Cannabis Buyers’ Cooperative and Wo/Men’s Alliance for Medical Marijuana against the federal government’s efforts to suppress medical marijuana.
Attorney Randy Barnett argued that the federal government was exceeding its constitutional powers under the interstate commerce clause. Much discussion was spent on the precedent of Wickard v. Filburn, which authorized the federal government to regulate intra-state commerce, provided the activity involved was a “relevant class” affecting interstate commerce. Barnett argued that the “relevant class” here was different than in preceding cases involving general sales and distribution of marijuana, since it involved medical marijuana users. The Justices sharply questioned this line of argument, Justice Schroeder asking why homegrown marijuana was different from homegrown wheat (the issue in Wickard v Filburn), and Justice Silverman noting that the Congress specifically addressed the class of medical use by putting marijuana in Schedule I.
Attorney Gerald Uelmen addressed the issue of patients’ fundamental right to relief from pain and suffering, asking “If a dying cancer patient gets relief, what interest does the federal government have in stopping him.”
“We did that one,” joked Justice Reinhardt, referring to the panel’s previous decision in the OCBC case, which was overturned by the Supreme Court. He went on to note that the 9th Circuit had supported the right to relief from pain in suffering in an assisted suicide case, which was likewise overturned by the Supreme Court. “You want us to try again?,” Reinhardt joked.
Regarding Congress’ authority to regulate drugs, Justice Silverman asked the poignant question, ‘Does Congress have the right to be wrong about this? That’s what bothers me.”
On the government’s side, attorney Mark Quinlivan stressed that the Controlled Substances Act was a lawful exercise of Congress’ authority. “Could Congress put insulin in Schedule One?” asked Justice Silverman. Yes, said Quinlivan, but it would be subject to regulatory protocols regarding petitions for rescheduling.
Justice Reinhardt sharply questioned Quinlivan’s assertion that the court had no right to look at the class of medical marijuana users, but could only consider the class of all marijuana commerce as defined by Congress in the CSA. “Here you have a carefully regulated category,” said Reihardt, “What’s wrong with looking at it?” Quinlivan objected that states had no authority to define categories in federal law. “Well, states are winning more these days,” said Reinhardt. Quinlivan went on to try to link WAMM to “commercial activity” by saying it accepted monetary contributions and sold some goods at its website. Reinhardt skeptically noted that everything involves money. Reinhardt bore in on the crucial question of whether there was a fundamental right to relief from pain and suffering. Quinlivan evaded the question by saying that this issue didn’t apply, since there was “no relevant class.”
The Ninth Circuit is expected to make its decision known in its own good time (the last OCBC decision took 6 months). In the meantime, another panel is expected to hear a related appeal by Angel Raich and Diane Monson, involving the right to possess and cultivate for personal medical use, exclusive of any distribution.
Report by Dale Gieringer, Cal NORML
