September 1, 2004
In 1996, California voters passed the Compassionate Use Act, legalizing the cultivation, possession, and use of medical marijuana under a doctor’s recommendation for treatment of certain medical conditions. In contrast to the state’s legalization of medical marijuana, the federal Controlled Substances Act (CSA) classifies marijuana as a controlled and illegal substance with no “currently accepted medical use in treatment in the United States.” Thus, acts permitted under California law could still lead to arrest and prosecution under federal law. In a 2001 case, United States v. Oakland Cannabis Buyers’ Cooperative, the United States Supreme Court rejected the argument that “medical necessity” could be a valid defense to manufacturing or distributing marijuana in violation of the CSA.
Fearing police raids and seizure of their marijuana plants, plaintiffs Angel McClary Raich and Diane Monson, along with two unnamed marijuana cultivators, filed a civil action in federal district court to enjoin the Drug Enforcement Administration and the U.S. Attorney General from enforcing provisions of the Controlled Substances Act in situations involving the use of medical marijuana.
Although the plaintiffs raised a number of constitutional arguments, the question now before the Supreme Court is whether the use of medical marijuana is susceptible to federal regulation under the Commerce Clause of the U.S. Constitution. Article I, Section 8, Clause 3. Although the Commerce Clause has generally been given an expansive reading since the 1930s, several recent Supreme Court cases have raised significant questions about the reach of federal power under the Clause. For example, in United States v. Lopez (1995), the Court invalidated the statute that made it a federal crime to knowingly possess a gun in a school zone, holding that the Commerce Clause did not empower the federal government to regulate noncommercial activity that fell within an area traditionally regulated by the states (criminal law enforcement). A few years later, the Court used a similar approach to invalidate a civil damage remedy created by the Violence Against Women Act. United States v. Morrison (2000). Each of these cases was decided by a Court that was sharply divided, 5-4, and each time the alignment of the Justices was identical.
The United States Court of Appeals for the Ninth Circuit has ruled for plaintiffs, holding that they demonstrated a sufficient likelihood of prevailing on the merits to warrant issuance of a preliminary injunction forbidding enforcement of the CSA against them. The key to plaintiffs’ case is their characterization of their activity as “the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician pursuant to valid California state law.” If the question is framed in this manner, then Lopez and Morrison have the potential to be highly persuasive, since in each case the majority placed great emphasis on the noncommercial nature of the activity involved (gun possession in a school zone in Lopez; violent acts against women in Morrison). Plaintiffs argue, and the Court of Appeals agreed, that marijuana that is grown and consumed within California, solely for medical purposes, where there is never a sales transaction (Monson grows her own marijuana; Raich is given marijuana by her caregivers) is not part of the interstate commerce that Congress is permitted to regulate.
The Government’s defense of the CSA is based in large measure on the fact that Congress has rejected the notion that marijuana has a proper medical use. There is undoubtedly a large (though illegal) interstate market in marijuana, and the Government asserts that marijuana is fungible. Marijuana grown within California, even if never intended for sale or for any use other than medicinally, cannot be distinguished from other marijuana. Thus, the Government contends, the unquestionable right of Congress to regulate the interstate traffic in marijuana is appropriately implemented by prohibiting all marijuana, since Congress should be given substantial deference in its determination that particular intrastate activity “substantially affects” interstate commerce and is therefore subject to federal regulation, and also in its choice of means for achieving the desired objective of suppressing illegal drug trafficking and use.