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June 12, 2005 - Gonzales v. Raich, case no. 03-1454

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The basic news story –

Supreme Court allows prosecution of medical marijuana
Bill Mears - CNN Washington Bureau - Monday, June 6, 2005 Posted: 2:58 PM EDT (1858 GMT)


The U.S. Supreme Court Monday ruled doctors can be blocked from prescribing marijuana for patients suffering from pain caused by cancer or other serious illnesses.

In a 6-3 vote, the justices ruled the Bush administration can block the backyard cultivation of pot for personal use, because such use has broader social and financial implications.

"Congress' power to regulate purely activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce is firmly established," wrote Justice John Paul Stevens for the majority.

Justices O'Connor, Rehnquist and Thomas dissented.

… The decision means that federal anti-drug laws trump state laws that allow the use of medical marijuana, said CNN Senior Legal Analyst Jeffrey Toobin. Ten states have such laws.

"If medical marijuana advocates want to get their views successfully presented, they have to go to Congress; they can't go to the states, because it's really the federal government that's in charge here," Toobin said.

At issue was the power of federal government to override state laws on use of "patient pot." …


The plaintiff, Angel Raich, has brain cancer.  She was growing her own.  But the Justice department successfully argued that homegrown marijuana represented interstate commerce, because what she grew for herself would affect "overall production" of this stuff, and "much of it imported across American borders by well-financed, often violent drug gangs."


 I think that’s a "slippery slope" argument.

California's Compassionate Use Act, approved by fifty-six percent of the voters out here, is now null and void – along with parallel laws in Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington.  Oh, and Arizona too.  Looks like Montel Williams will have to deal his multiple sclerosis with something more expensive, but legal, from Merck or Squibb.

CNN adds this detail –


In its hard-line stance in opposition to medical marijuana, the federal government invoked a larger issue. "The trafficking of drugs finances the work of terror, sustaining terrorists," said President Bush in December 2001. Tough enforcement, the government told the justices, "is central to combating illegal drug possession."


You see, it is all part of GWOT™ – the Global War on Terror.

Bob, our columnist emailed me a reaction - "Compassionate Conservatives?  Not for cancer patients."

I sent him back this comment from Andrew Sullivan that has been bouncing around the web –


Regardless of how you feel about medical marijuana - I'm strongly for it - the Supreme Court case was really about the right to the federal government to tell states what to do. If the feds can forbid someone who grows pot in his own garden, sells none of it, uses it for his own medical use and is allowed to by his own state, it's still covered by the Interstate commerce exemption.

Yeah, right.


And Sullivan had earlier quoted Milton Friedman in Forbes on the federal government spending billions to deal with our drug problems –


There is no logical basis for the prohibition of marijuana. $7.7 billion is a lot of money, but that is one of the lesser evils. Our failure to successfully enforce these laws is responsible for the deaths of thousands of people in Colombia. I haven't even included the harm to young people. It's absolutely disgraceful to think of picking up a 22-year-old for smoking pot. More disgraceful is the denial of marijuana for medical purposes.


Milton is an economist, not a politician.

The lawyers?

Over at Talk Left the immediate reaction was this


The decision seems counter-intuitive to me from a practical standpoint. Under federal law, possession of marijuana for personal use is a misdemeanor. Growing even one plant is a felony. So, what the decision does is encourage pot smokers to engage in a business transaction by buying marijuana in the marketplace, so as not to get tagged with a cultivation felony. Had the court ruled the other way, the marketplace would be diminished for these users as they could grow their own in the privacy of their own homes. Go figure.


And at the UCLA constitutional law site, The Volokh Conspiracy, David Bernstein offers this


The five-member majority of the Court simply does not take federalism seriously. … It seems we do to some extent live under a system where the personal preferences of the Justices, having nothing to do with the history, text, or logic of the Constitution, dictate when the Supreme Court will or will not intervene to overturn particular regulations.


Ah, perhaps it was a political decision?

If you like law stuff, you can visit Lawrence Solum's Legal Theory Blog which, he says, comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, and contracts.  That is not everyone’s cup of tea, but you can find an excruciatingly detailed analysis of the ruling there.

For a political comment of note James Bartlett at The Best of the Blogs offers this


Of all the pandering stunts John Ashcroft engaged in as Attorney General, his desire to prosecute medical marijuana users always struck me as one of the worst. Never mind the inconsistency of an unreconstructed Confederate arguing for federal intervention in a state issue. What's worse is the jackbooted intrusion by the feds into the lives of people with cancer or AIDS, who already have more than enough to worry about. Yet the Supremes voted 6-3 today that federal laws banning medical marijuana take precedence over the laws legalizing it in 10 states …

John Paul Stevens wrote the majority opinion, but he suggested that all was not bleak for medical marijuana's future. "More important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress." In other words, don't worry - Congress could, after all, legalize medical marijuana.

Mr. Justice Stevens, what are you smoking?


I don’t have a dog in this hunt, as they say, but I see this from the Associated Press –

Marijuana Plaintiffs to Defy Court Ruling
Plaintiffs in Medical Marijuana Case Say They'll Defy Supreme Court Order, Continue to Smoke Pot
David Kravets - Monday, June 06, 2005


The two plaintiffs in the medical marijuana case decided by the U.S. Supreme Court on Monday say they will defy the ruling and continue to smoke pot, even at the risk of arrest by federal authorities.

"I'm going to have to be prepared to be arrested," said Diane Monson, who smokes marijuana several times a day to relieve back pain.

… "If I stop using cannabis, unfortunately, I would die," said Raich, who estimates her marijuana intake to be about nine pounds a year.

Raich, 39, suffers from scoliosis, a brain tumor, chronic nausea and other problems. She said she uses marijuana every few waking hours, on the advice of her doctor, who said dozens of other medications were of little help.


Oh, this is going to be fun.


Footnote –

The Los Angeles Times in their editorial on these matters on Tuesday, June 7, points out the problem with arguing that the federal government superceding the states is wrong is itself a two-edged sword –


… Before you get indignant at the Supreme Court, however, think about how you might have reacted in the reverse situation. Suppose Congress did as we asked and enacted a federal law allowing compassionate use of marijuana. And suppose that California continued to arrest doctors and patients under its own drug laws, which had no such exception. Would you have said: "Well, that's federalism for you?" Or would you have found the arguments of the majority in this case, Gonzales vs. Raich, strangely compelling?

The commerce clause authorizes the federal government to regulate trade within the U.S. and abroad. For decades, during and after the New Deal, this clause became the all-purpose authority for anything the federal government wanted to do, or to prevent individual states from doing. Sometimes this was a stretch. The 1964 Civil Rights Act, for instance, was justified constitutionally by the need to regulate interstate commerce.

Federalism and the commerce clause bring out the hypocrite in all of us. If you're against some government policy, you tend to believe that the problem would be better handled at the state level. If you're for it, you believe that it is one of the nation's core functions and must be addressed nationally. There are enough contradictory Supreme Court declarations to allow either case to be made.


Yes, and the Times comes to this conclusion –


... Given how many policies this page has happily urged the federal government to impose on … well, Alabama and Mississippi and South Carolina, if not California, that clearly means supporting the court's decision.


What’s sauce for the goose is sauce for the gander?  Maybe.

But that avoids the essential question.  What’s the big deal here with denying these patients this relief?  Where’s the harm?


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
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