Autumn 2005
O'Shaughnessy's
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.”