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Autumn 2005
Journal of the California Cannabis Research Medical Group

Strong Dissents by Justices O'Connor, Thomas, and Rehnquist
U.S. Supreme Court Ruling on Raich Case Leaves Doctor-Patient Relationship Intact; DEA Targets Some Growers, Dispensaries

In a six-to-three vote announced June 6, the U.S. Supreme Court denied Angel Raich and Diane Monson the right —established by California voters in 1996— to obtain and use marijuana for medical purposes. Antonin Scalia and Anthony Kennedy, two of the five justices who have been advocating limits on federal power, in this case made a War-on-Drugs exception to their “principles.”

John Paul Stevens, who wrote the majority opinion, was joined by Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Scalia wrote a concurring opinion trying to justify his apostasy. Kennedy didn’t feel he owed the public an explanation.

Sandra Day O’Connor’s dissent was joined by Chief Justice William Rehnquist, and Clarence Thomas, staying true to their states-rights line. Thomas wrote an eloquent separate dissent.

Raich and Monson are California medical-marijuana users who in October, 2002 sought to enjoin the DEA from confiscating their marijuana and raiding their suppliers. They argued, among other things, that the feds had no jurisdiction to enforce the Controlled Substances Act against them because their activities weren’t affecting interstate commerce.

After failing to get an injunction from a federal district judge, they appealed to the Ninth Circuit Court of Appeal, which ordered that the injunction be granted. The Bush Administration appealed to the U.S. Supreme Court, which heard arguments in Raich et al v. Ashcroft et al but goes down in the history books as Gonzales et al v. Raich et al.

An Apologetic Majority
Regulating the noncommercial cultivation and use of marijuana in California “is squarely within Congress’s commerce power,” Stevens wrote for the majority. Previous cases, notably Wickard v. Filburn, had established “Congress’s power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.”

Some of Stevens’s opinion was actually apologetic in tone.“The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; 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.”

Stevens recounted the futile efforts to remove marijuana from Schedule 1 (dangerous drugs with no medical use): “After some fleeting success in 1988 when an Administrative Law Judge declared that the DEA would be acting in an ‘unreasonable arbitrary, and capricious’ manner if it continued to deny marijuana access to seriously ill patients, and concluded that it should be reclassified as a Schedule 3 substance, the campaign has proved unsuccessful. The DEA Administrator did not endorse the ALJ’s finding, and since that time has routinely denied petitions to reschedule the drug. The Court of Appeals for the District of Columbia circuit has reviewed the petition to reschedule marijuana on five separate occasions over the course of 30 years, ultimately upholding the Administrator’s final order.”

Stevens concluded by noting that Raich and Monson can appeal again to the Ninth Circuit with their due-process and medical-necessity arguments, which were not considered previously. They can also seek to have marijuana rescheduled by the DEA and/or avail themselves of “the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.”

Stevens would apologize for the effect of his own ruling in a speech Aug. 24 to the American Bar Association. See following story.

Thomas’s Dissent
Thomas’s dissent stated, “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... In the early days of the republic it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.”

O’Connor’s dissent quoted Justice Brandeis’s famous line that “a single courageous State may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.” She added, “This case exemplifies the role of States as laboratories.”

O’Connor concluded, “If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our commerce clause cases require that room for experiment be protected in this case.”

Attorney Robert Raich says he was most surprised that “Stevens, who I thought would be our biggest supporter, ended up authoring this negative opinion and Rehnquist, who I thought would be our biggest opponent, ended up joining this terrific opinion by O’Connor... Stevens had commented about the issue of federalism in his concurrence in the Oakland Cannabis Buyers’ Cooperative case. He should have ruled for us on that basis. It is inexplicable why that analysis is missing from his opinion.”

Raich says that Stevens’s hypocrisy was exposed by Thomas, who quoted his comment in the OCBC case (May, 2001): “The majority’s rush to embrace federal power ‘is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union.’”

According to Raich, Stevens “still could have let the federal government regulate all those other issues he cares about —the endangered species act, the clean water act— under the commerce clause, except when you have an actual case where a state weighs in with a specific challenge. And those would be dealt with case by case. If you had a state trying to ban abortion or re-impose segregation they would be overridden because a state can’t infringe on the right to privacy or violate the equal protection clause. If a state says, ‘We don’t care about tailpipe emissions, we’re not going to regulate factories.’ Well, factories and automobiles actually are engaged in interstate commerce. So a state that tried to get out of clean-air laws would still be validly overridden by federal law under the commerce clause.”

Attorney Bill Panzer was appalled by Scalia’s opinion. “He seems to be saying Congress can do anything it wants under the ‘necessary and proper’ clause. If they have the right to regulate interstate commerce, they can regulate it any way that they want. They don’t even have to show that what they’re regulating has any substantial effect on interstate commerce... He’s changed ‘necessary and proper’ to November ’04. The case started out as ‘imagination and whim.’ If congress can imagine that it’ll help, they can do it. Scalia, supposedly the strict constructionist, is giving Congress incredible powers.”

A well-placed Washington source thinks Scalia was never sincere about federalism, that he adopted Rehnquist’s line for tactical reasons, but now he’s coming out for an all-powerful federal government (under the control of his duck-hunting buddy, Dick Cheney). Panzer has a simpler analysis. “I think it’s more like: ‘It’s drugs, they can do anything they want.’”

Pebbles Trippet of the Medical Marijuana Patients Union, who accurately predicted Thomas’s line, has called for “a new federal challenge, focusing on a full spectrum of constitutional violations broader than the commerce clause and states rights... We need to decide whether there is a compelling federal interest to outweigh the patient’s under the Due Process Clause; whether the CSA’s penalties are cruel and unusual punishment as applied to cannabis for medical use; and whether there is a rational basis for discriminating against cannabis compared to other medications.”

O'Shaughnessy's is the journal of the CCRMG/SCC. Our primary goals are the same as the stated goals of any reputable scientific publication: to bring out findings that are accurate, duplicable, and useful to the community at large. But in order to do this, we have to pursue parallel goals such as removing the impediments to clinical research created by Prohibition, and educating our colleagues, co-workers and patients as we educate ourselves about the medical uses of cannabis.
The Society of Cannabis Clinicians (SCC) was formed in the Autumn of 2004 by the member physicians of CCRMG to aid in the promulgation of voluntary standards for clinicians engaged in the recommendation and approval of cannabis under California law (HSC §11362.5).

As the collaborative effort continues to move closer to issueing guidelines, this site serves as a public venue for airing and discussing these guidelines.

Visit the SCC Site for more information.