Journal of the California Cannabis Research Medical
Fate of Medical Marijuana Movement
May Hinge on Ashcroft v. Raich Ruling
By Fred Gardner
The U.S. Supreme Court ruling in the case called Ashcroft et al v. Raich et
al is likely to determine if and how the federal Controlled Substances Act
applies to more than 100,000 people who use cannabis as medicine under the
law in California and other western states.
The case was argued Nov. 29, 2004. The ruling is expected by June 2005.
A win for patient Angel Raich, her John Doe caregivers, and her co-defendant
Diane Monson, would confer legitimacy on everyone in their situation. A loss
could mean widespread, low-key terror with the DEA picking off growers, distributors
and persons of interest at will.
There is a spectrum of possible outcomes in between the unambiguous win and
loss (See “Robert Raich on the Judgment,” this issue.)
The suit started out as Raich et al v. Ashcroft et al. It was filed in October,
2002, in response to intermittent DEA raids, such as the raid that closed the
6th Street club in San Francisco, and the destruction of WAMM’s garden north
of Santa Cruz.
Diane Monson and Angel McClary Raich
Angel McClary Raich, 39, was the prime mover. Her life
would be at risk, she contended, if the feds raided the two caregivers
who were growing her year’s supply of cannabis (for no charge). Angel
sought a court order enjoining the Justice Department and the Drug
Enforcement Administration from carrying out any more raids.
Although painfully thin due to her afflictions, Angel (which is the
name she chose for herself) has a strong ego and the will to make history —“for all
of us,” she says.
She comes from Stockton, from a working-class family. Her parents divorced
when she was four. Angel has disturbing memories of being molested by a family
member. At 12 she was put in a full-body brace to correct curvature of the
spine. She developed asthma and had several cysts removed while still in high
She married her high school sweetheart. They worked as apartment managers in
the Central Valley and had two kids. They divorced. Angel remarried and worked
at a series of blue- and white-collar jobs.
At age 30 she had a serious adverse reaction to the birth-control pill, resulting
in partial paralysis. An inoperable brain tumor was diagnosed. Confined to
a wheelchair, in pain, she was given strong prescription painkillers —synthetic
opiates, methadone and Fentanyl— which induced nausea, vomiting and other intolerable
She was hospitalized and made a feeble attempt to cut her wrists. A nurse advised
her to try marijuana; Angel wouldn’t hear of it because it could cost her custody
of her kids. When desperation ultimately led her to try the prohibited herb,
her pain receded, and in due course she regained her mobility and found her
calling as a martyr/advocate.
By 2000 Angel had moved from the Central Valley to the Bay Area, made friends
with other patients and activists trying to implement California’s medical
marijuana law, and formed a non-profit of her own called “Angel Wings Outreach.”
In the course of helping patients deal with legal problems, Angel met attorney
Robert Raich. “It really became hard to see where he ended and I began,” she
recalls. “We became one.”
Robert Raich, 48, is a rabbi’s son who went to Harvard and then to
law school at the University of Texas. He is almost as thin as Angel,
very soft-spoken and mild-mannered. It was Raich who had the insight,
back in 1998, that section 885(d) of the Controlled Substances Act,
which allows undercover police officers to buy, handle, and sell narcotics,
could apply to a city-authorized cannabis dispensary.
Raich represented the Oakland Cannabis Buyer’s Co-op in a federal case initiated
by the Clinton Justice Department in 1998. The U.S. Supreme Court eventually
ruled that the OCBC couldn’t claim “medical necessity” as grounds for violating
the Controlled Substances Act. Whether an individual could claim “medical necessity” was
not addressed in the OCBC case; it is one of the arguments Angel’s lawyers made
on her behalf in the present case.
Angel’s co-defendants are two anonymous growers (“caregivers” in terms of California
law) and Diane Monson, a 47-year old accountant who has her doctor’s approval
to use cannabis to treat disabling back pain and spasms.
In August, 2002, Monson was growing six outdoor plants in her home garden in
the foothills of Oroville. DEA agents arrived to question her about a large quantity
of marijuana growing elsewhere in Butte County on property that she and her husband
formerly owned and on which they still held the mortgage (i.e., they were getting
monthly payments from the new owners).
Diane told the law enforcers she’d been unaware of the large grow. The DEA agents
said they were going to confiscate her six plants then and there. (Ordinarily
the feds don’t concern themselves with small quantities of marijuana.) Diane
asked the Butte County Sheriff’s deputies who had accompanied the feds to confirm
that the plants were legal under Prop 215.
A tense, three-hour standoff ensued during which the Butte County District Attorney,
Mike Ramsey, asked the U.S. Attorney for the Eastern District of California,
John Vincent, to call off the raid. Ramsey’s support is a tribute to his integrity
(“He’s against medical marijuana, personally, but he respects and upholds California
law,” says Philip A. Denney, MD, who has an office in Redding.) It’s also a tribute
to the standing in the community of Monson and her recently deceased husband.
The DA of Butte County did not prevail, and as Diane Monson read aloud the text
of Prop 215 (“I thought they needed to hear it,” she says), DEA agents macheteed
and hauled away her almost-ready-to-harvest herbal painkiller.
Angel read about Monson’s plight and asked her to become a co-plaintiff so that
a favorable decision by the Court could apply to patients whose illnesses were
not life-threatening. The two women are represented by San Francisco defense
specialist David Michael, and Randy Barnett, a professor of constitutional law
at Boston University School of Law, an authority on the 9th amendment, in addition
to Robert Raich.
In requesting an injunction they argued, among other things, that the federal
government has no jurisdiction because the process by which the plants were grown
for and consumed by Raich and Monson did not affect interstate commerce significantly.
The request for a preliminary injunction was denied in March 2003 by U.S. District
Court Judge Martin Jenkins. Raich et al appealed to the 9th Circuit, and in October ’03,
made their arguments to a three-judge panel (Pregerson, Paez and Beam, on loan
from the 8th Circuit). In December ’03 the 9th Circuit panel (with Beam dissenting)
directed the District Court Judge to issue the preliminary injunction. Jenkins
did so in May 2004. It reads:
“Defendants, and their agents and officers, and any person acting in consort
with them, are hereby enjoined from arresting or prosecuting Plaintiffs Angel
McClary Raich and Diane Monson, seizing their medical cannabis, forfeiting their
property, or seeking civil or administrative sanctions against them with respect
to the intrastate, noncommercial cultivation, possession, use, and obtaining
without charge of cannabis for personal medical purposes on the advice of a physician
and in accordance with state law, and which is not used for distribution, sale
The above injunction —which the Bush Administration wants the Supreme Court to
quash— is what made the summer of 2004 relatively stress-free for many Californians
who were growing for or distributing cannabis to patients whose doctors had approved
The Key Arguments
Before appearing in Court, each side makes its arguments in written briefs, which
are supplemented by “amici” (friend of the court) briefs from interested parties.
The Justice Department brief, submitted by Acting Solicitor General Paul Clement,
argues that Congress had a valid goal in passing the Controlled Substances Act
to regulate interstate commerce in licit and illicit drugs. “Medical” users growing
their own would undermine that goal. Interstate commerce, although not affected
by a few instances of medical users growing their own cannabis in California,
is inevitably affected when all such instances are considered in aggregate. All
marijuana-related activity is inherently economic because marijuana is a “fungible” substance —it
can be bought and sold in commerce. All marijuana is essentially the same, and
if the parties in this case didn’t have marijuana grown for them, they’d be buying
it on the market.
The government argues, “Excepting drug activity
for personal use or free distribution from the sweep of the CSA would
discourage the consumption of lawful controlled substances.”
Among the feds’ arguments is one usually left unspoken: prohibition
serves the interests of the pharmaceutical corporations. As expressed
in the DOJ brief, “Excepting drug activity for personal use or free
distribution from the sweep of the CSA would discourage the consumption
of lawful controlled substances.” It would also undercut “the incentives
for research and development into new legitimate drugs.” That’s as
close as the government has come to acknowledging that wider cannabis
use would jeopardize drug-company profits.
The U.S. Supreme Court overturns three out of four
cases it chooses to review.
The U.S. Supreme Court overturns three out of four cases it chooses
to review. The absence of Chief Justice Rehnquist (undergoing treatments
for cancer) would work to Raich’s advantage. As a young lawyer in the
Nixon Justice Department, Rehnquist helped write the Controlled Substances
Act. His questions during the Oakland Cannabis Buyers’ Co-op oral argument
in 2001 were overtly hostile. And he’s considered results-oriented
(fight the war on drugs) rather than principled (curtail the overreaching
Commerce Clause). Rehnquist could still read the transcript and vote
on the Raich case, even though he did not attend the oral argument.
He is expected to write an opinion (or have his law clerks do so)...
If there’s a 4-4 tie, the opinion of the 9th Circuit stands, but doesn’t
become binding authority on the rest of the country.
Most of the amici briefs focus on states’ rights. For those of us who remember
the battles to end segregation in public schools in the South, there is obvious
irony in our side calling for “states’ rights.” It was in the name of states’ rights
that governors Orville Faubus and Ross Barnett barred the schoolhouse doors
in Arkansas and Mississippi, while up north we were singing “The ink is black,
the page is white, together we learn to read and write, to read and write.
And now a child can understand this is the law of all the land -all the land!”
Another inversion involves the question of individual rights, to which so-called
conservatives always pay lip service. The right to self-medicate is an individual
right if ever there was one —but the conservatives are suddenly all about “public
health,” like a bunch of bleeding-heart liberals!
The Government briefs refer to marijuana as only “purportedly,” “assertedly,” “allegedly” medical.
The marijuana prohibition takes us through-the-looking glass because
it’s based on the Mad Hatter’s premise that the drug is always harmful,
never helpful. The feds and their amici refer to marijuana as only “purportedly,” “assertedly,” “allegedly” medical.
But the record established at the district court level —which is supposedly
all the Supreme Court goes on— consists of four declarations by the
two patients and their physicians showing that cannabis does indeed
have medical benefits. The government submitted no evidence to the
contrary. They contend it’s just a question of law.
The key precedent is a 1942 case, Wickard v. Filburn, which established that
impact on interstate commerce is not a function of individual transactions
(such as caregivers growing cannabis for Angel Raich) but of all such transactions,
in aggregate (all medical users growing their own or having it grown for them
Filburn was an Ohio farmer who grew more wheat than he was allowed to under
the Agricultural Adjustment Act, which was intended to keep prices up by limiting
production. That Act was clearly trying to regulate economic activity. The
Court ruled that Congress could regulate consumption of Filburn’s wheat on
his own farm because if all farmers acted likewise, Congress’s scheme to regulate
the price would be undermined.
Raich-Monson argue that Wickard v. Filburn is a bad analogy because Filburn
sold some of the wheat he raised, and much more of it was being consumed by
his cows (from which he derived milk, and which he sold occasionally) than
by his family. He also raised and sold chickens and he sold eggs, i.e., he
was using his wheat in running a commercial farm. Moreover, the Agricultural
Adjustment Act didn’t apply to farmers growing small quantities for family
use. And the principle of “aggregation” established in Wickard did not apply
in the two cases —Lopez (1995) and Morrison (2000)— by which the Rehnquist
court has limited Congress’s power under the Commerce Clause.
Raich-Monson’s arguments are designed to appeal to “conservatives.” By ruling
against them, the Court would significantly extend federal power under the
Commerce Clause —the last thing “conservatives” supposedly want to do. “If
the Court upholds Petiitioners’ claim of federal power,” the Raich-Monson brief
points out, “this case will supplant Wickard to become the most expansive interpretation
of the commerce clause since the Founding, and this Court’s landmark decisions
in Lopez and Morrison will become dead letters.”