Monday, June 13, 2005

Thoughts about Gonzales v. Raich

(Decided by the U.S. Supreme Court, June 6, 2005)

By Eric E. Sterling, J.D.

President, Criminal Justice Policy Foundation

With the Supreme Court ruling 6 to 3 against Angel Raich and Diane Monson in their suit to prevent the Justice Department from interfering with their use of marijuana under California law, some people have questioned the wisdom of their legal and political strategy.

If you are going to lose in the Supreme Court, this is a pretty good way to go. I think the wisdom of this approach has been affirmed by the decision.

But first, let us not forget the value of having won the case in the Ninth Circuit, Raich v. Ashcroft, 352 F. 3d 1222 (9th Cir. 2003). Imagine, for a moment, that this case had never been brought. Think of Bryan Epis still behind bars, serving a mandatory minimum sentence of 10 years after a trial in which he could not present a defense of his own injuries, pain or California law. Think of the 10-year sentence that Ed Rosenthal might have received. Think of the Wo/Men’s Alliance for Medical Marijuana ( hospice for the dying in Santa Cruz still out of business.

Medical marijuana patients, and the doctors who care for them, have lost nothing they didn’t have two years ago – they have gained immeasurable political support and public education.

Think about the impact of the Ninth Circuit win on the politics in Vermont, Montana, Rhode Island, New York, or on the votes on the Hinchey-Rohrabacher Amendment in the U.S. House of Representatives to bar DEA from raiding patients. Without this case and the victory in the Ninth Circuit, where would be the patients, doctors, and the movement to protect them?

This case is a remarkable decision. As I finished reading the majority opinion, which reversed the Ninth Circuit’s ruling, I had the sense that the five justices who joined the majority opinion were in a mood something like that of the jurors in Ed Rosenthal’s trial: this is the law we’ve got to work with but we’re not happy with it. I could almost imagine Justice Stevens, after retiring from the Court, joining the Marijuana Policy Project or Americans for Safe Access. It must be noted that the patients in this case had the support, in the dissenting opinions, of two of the most conservative justices – Chief Justice Rehnquist and Justice Thomas -- and Justice O’Connor, who is considered by many analysts as the most important justice sitting because she has been at the center of the court in so many of the controversial cases in recent years.

It is important to also note that the case is not over – it goes back to the Ninth Circuit and the U.S. District Court in San Francisco, where other legal claims made by Raich and Monson will be considered.

Turning to the case, the five justice majority opinion by Justice Stevens (Justice Scalia wrote a separate concurring opinion) – the opinion that said Angel Raich and Diane Monson lose -- concluded with FOUR sympathetic expressions for them (Slip Opinion, pp. 30-31). In effect, the Supreme Court said, you lost, but here are four ways you could get what you want (and deserve).

First, the Supreme Court said Angel and Diane may try to get relief by continuing their suit under “substantive due process,” a legal theory that was not addressed by the Court of Appeals or the Supreme Court.

Second, the Supreme Court majority said they could “seek to avail themselves of the medical necessity defense.” This is the defense that the Supreme Court said was not available to Jeffrey Jones and the Oakland Cannabis Buyer’s Cooperative in its 2001 opinion, in an 8-0 decision!

Who could have imagined, in 2001, that in 2005 a majority of the Supreme Court would be casually urging patients to “avail themselves of the medical necessity defense,” with the implication that is a settled and established legal doctrine.

Third, the Supreme Court noted that the patients can seek reclassification of marijuana from Schedule I to another schedule. (Unfortunately this suggestion is not accompanied by a footnote to the excellent amicus brief submitted by Rick Doblin and MAPS, pointing out the limitations of that approach.) Although the CSA bases the rescheduling decision on scientific and ostensibly objective criteria, in reality it is a political decision that remains remote. No recent President has demonstrated an inkling of the resolve to direct the DEA Administrator look at the facts and end the political conflict between the states and the federal government.

And fourth, the court majority said, “perhaps even more important... is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.” (Emphasis added). The court didn’t have to say this. When you consider the many ways the court could have said that Congress can resolve this conflict, this phrasing stands out.

It is clear that the justices believe that voices allied with the respondents should be heard (and heeded) in the Congress. The justices are practically lining up with us to support the Hinchey amendment to the Science, State, Justice and Commerce Appropriation Bill (not yet given a number in the 109th Congress) to be debated on June 14, 2005 (CONTACT YOUR MEMBER OF CONGRESS) and the Frank bill, the States Rights to Medical Marijuana Act (H.R.2087).

The 6 to 3 outcome of this case is dramatically different from the outcome just four years ago when the Oakland Cannabis Buyer’s Cooperative case, 532 U.S. 483 (2001) was lost 8 to 0 (with Justice Breyer recusing himself because of his brother’s role at the trial level).

Background cases

To understand this case, you must look at two recent cases – United States v. Morrison, 529 U.S. 598 (2000) and United States v. Lopez, 514 U.S. 549 (1995) – and some old cases, including Wickard v. Filburn, 317 U.S. 111 (1942)

The provision of the Constitution that is at issue is Article I, Section 8, clause 3, “The Congress shall have Power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes...”

In the 1995 and 2000 cases – which were closely and bitterly divided -- the Supreme Court held recent acts of Congress were unconstitutional because they exceeded Congress’ power under the Commerce Clause. In Morrison, they held that violence against women was not a sufficiently economic problem in interstate commerce that Congress could pass a law giving a woman the right to sue another person for their injuries. In Lopez, the simple possession of a handgun at a school in Texas was not sufficiently connected to interstate commerce to permit Congress to make such possession a federal felony.

Strategically, the patients recognized that if the Supreme Court wanted to follow those two precedents in further limiting the reach of Congress’ power, the facts of Gonzales v. Raich presented a very attractive case to the Court – an invitation that three justices accepted.

Wickard v. Filburn was a 1942 case in which Filburn, an Ohio commercial farmer, disregarded a New Deal-inspired, federally imposed limit on the amount of wheat he could plant and harvest. He planted an 11.9 acres in excess of his allotment, and harvested 239 bushels of wheat (more than six tons) in excess of what he was authorized, which he used to feed livestock that he sold, saving some for seed, and using some to mill into flour to bake bread for his own table. There the court unanimously ruled that the wheat he grew to retain for his own use could be covered by the federal law because it “affected” interstate commerce. (The record showed that the extensive swings in the price of wheat that Congress was trying to control in this law were strongly influenced by the fluctuating amounts of wheat that farmers kept for their own use).

Since 1942, this broad reading of the Commerce Clause power has been used to support Federal civil rights laws prohibiting employment discrimination, discrimination in interstate travel and accommodations, environmental laws, work place safety laws, and a host of other regulatory fields.

The issue in this case

This case was never simply about medical marijuana or the Controlled Substances Act. This case was a direct challenge to the reach and power of the Federal government.

Many constitutional theorists have been concerned that the two centuries old system of checks and balances had left the Federal government unchecked, and the system unbalanced. At the Federal level, we see the checks and balances play out fairly openly in the conflicts between the Executive, the Congress and the Judicial branch. Congress investigates, demands documents and oversight, block appointments, or withholds funds from the Executive. The Executive nominates, pressures, has commanding access to the news media and information, makes appointments, or vetoes legislation. The Courts can strike down acts of the Congress or the Executive, or enjoin actions of the Executive.

But at the national level, in the conflict between the power of the States and the power of the Federal government, the battle ground is harder to find, and the actions are often less decisive. States have no mechanism for challenging Federal power except in the courts. Therefore some constitutional theorists argue that the Supreme Court has the power and unique duty to preserve the balance between State and Federal power. That was one of the issues presented by Gonzales v. Raich, and it was addressed by Justice O’Connor in her dissent in her reference to the states as “laboratories” for social and legal experimentation.

Observations about the opinions

It is clear that the justices knew that if they ruled in favor of Angel Raich and Diane Monson, that the Supreme Court would be creating a constitutional bar to federal prosecution of growing cannabis for one’s own non-commercial purposes – medical and otherwise. This constitutional limitation on federal power, if established, logically could have been extended to people who grew mushrooms or peyote or synthesized LSD or methamphetamine in their own home if they could establish that the source of their materials were wholly in-state and non-commercial. In their willingness to uphold their vision of a constitution with limited federal government powers, the three dissenting justices – O’Connor, Chief Justice Rehnquist, and Thomas -- were willing to significantly shrink federal marijuana and other drug prohibition.

Regarding the question of marijuana’s medical efficacy, the majority expressed a great deal of sympathy to Angel and Diane’s argument, and the scientific facts. In contrast to the government’s brief filed with the Court that bristled with sneering condescension about their ailments, the court describes them sympathetically (p.3). Consider the sympathetic tone in the court’s account of the raid at Diane’s home at which the local authorities “concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants.”

Don’t look to any of the opinions to trumpet the government’s litany of the dangers of marijuana. Look at how the Supreme Court describes the lead-up to the Marihuana Tax Act, “Marijuana itself was not significantly regulated by the Federal Government until 1937 when accounts of marijuana’s addictive qualities and physiological effects, paired with dissatisfaction with enforcement efforts at state and local levels, prompted Congress to pass the Marihuana Tax Act.” (p. 7). There is no echo in the opinion of the hysteria in the 1930s about death, insanity, out of control and poisoned youth, or attendant “Reefer Madness.”

In discussing that the difference between medical marijuana growers and “drug trafficking” that the 9th Circuit found to be “different class of activities,” the Supreme Court said it “might be sufficient to justify a policy decision exempting the narrower class from the coverage of the CSA. The question, however, is whether Congress’ contrary policy judgment...was constitutionally deficient.” (p. 23). That analysis resonates with sympathy for the patients’ claims. Justice Thomas strongly embraced the lower court’s distinction, in his dissent.

Later, in footnote 37, the court says: “We acknowledge that evidence proffered by respondents 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...But the possibility that the drug may be reclassified in the future has not relevance to the question whether Congress now has the power to regulate its production and distribution.” (p. 24).

The majority found that the non-commercial, intrastate medical marijuana cultivation would affect the interstate market in marijuana, and that controlling that was a reasonable and indispensable part of the total regulatory scheme.

Justice Scalia found that even though the activity in this case was intrastate and does not

substantially affect interstate commerce, it remains “necessary” to regulate them as part of a broader regulation of interstate commerce pursuant to the last clause of Article I, Section 8 authorizing, “The Congress...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...” Scalia found that Congress “has undertaken to extinguish the interstate market in ...marijuana. The Commerce Clause unquestionably permits this...That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation.


As a result of this case, we are back to the status quo of a couple of years ago. Patients and doctors have lost nothing. DEA’s preposterous raids, and the unfair trials in which prosecutors and judges manipulated rules to evidence to prevent effective defenses and to mislead juries, brought obloquy to our system of justice. Should the Justice Department resume their unwise and spiteful course, they will reignite a political backlash.

The magnitude of the suffering of Raich and Monson -- and the urgency of their continuing therapy -- demonstrates their extraordinary courage and determination in abandoning the safety of privacy and anonymity for this contest. Thus they have developed an enormous well of sympathy and support for this effort. It is hard to imagine more sympathetic advocates than Angel Raich and Diane Monson. This case has generated an unimaginable amount of positive, sympathetic support and education about this issue.

Now, harkening the concluding words of the Court’s majority, we are set to throw this issue back to the Congress.

And Angel and Diane are invited by the Supreme Court to return to court with a different constitutional theory to protect themselves.

That is a pretty good outcome, especially considering the odds against winning to start with.

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