T Nation

Medical Marijuana Case

Will be argued tomorrow before the USSC – the decision won’t come down for awhile though.

I’m interested as to what positions people take on this issue?

Here’s some good background info:

Here is a link to a pro-plaintiff site’s summary of the proceedings thus far:

http://www.angeljustice.org/article.php?id=56


Excerpt from U of Wisc. law prof Ann Althouse (because I’m too lazy to re-summarize):

In the case at hand, California would like to be free to legalize the use of marijuana for medicinal purposes.

Generally, judicial and political liberals have opposed the Supreme Court’s enforcement of constitutional federalism, which limits the reach of federal governmental power and leaves room for individual states to experiment with their own policies, suited to local conditions and local political preferences. But some state policy experiments are appealing to those who did not like it when the Supreme Court used ideas about federalism to strike down the Gun-Free School Zones Act and part of the Violence Against Women Act.

So it will be interesting to see the response of those who have harshly criticized the majority’s recent federalism decisions and have professed abject deference to Congress and the Executive branch about federalism matters. From a liberal perspective, one might want to think: I support the enforcement of federalism limits when federalism is really a stand-in for individual rights, and I support strong federal government power when the federal policy in question is really a stand-in for individual rights. But it is rather hard to translate that instinct into sound constitutional law.

Conservatives face a dilemma too, if their conservatism is the kind that puts great importance on strong anti-drug enforcement. But conservatives who take the libertarian position on drugs can happily seize a two-fold opportunity: they can demonstrate a principled fidelity to constitutional federalism and, at the same time, improve federalism’s reputation among liberals.


Here’s what one of the lawyers arguing for legalization, BC law prof Randy Barnett, has to say on the matter:

http://volokh.com/archives/archive_2004_11_21.shtml#1101487076

Final Push for Monday’s Argument:
My preparation for Monday’s Supreme Court argument in Ashcroft v. Raich continues this weekend. I learned a tremendous amount from moot courts at Georgetown, Oklahoma City University, and Harvard Law School. My thanks to all who served as judges for their invaluable feedback and to all those who attended for their support and encouragement.

Update:SCOTUS Blog reports that Acting Solicitor General Paul Clement will be arguing the case for the government. By all accounts, he is a brilliant attorney and most impressive oralist who had, at the time of his appointment in July, 18 previous arguments before the Court (and probably more since then)–as compared with my . . . none.

Update:Here is a detailed guide to Monday’s argument with pictures and extensive links from Drug War Rant ( http://blogs.salon.com/0002762/stories/2004/11/23/raichVAshcroftAGuideToTheS.html ). (Hat tip to Kiwi Pundit)

[quote]BostonBarrister wrote:
Will be argued tomorrow before the USSC – the decision won’t come down for awhile though.

I’m interested as to what positions people take on this issue?

Here’s some good background info:

Here is a link to a pro-plaintiff site’s summary of the proceedings thus far:

http://www.angeljustice.org/article.php?id=56


Excerpt from U of Wisc. law prof Ann Althouse (because I’m too lazy to re-summarize):

In the case at hand, California would like to be free to legalize the use of marijuana for medicinal purposes.

Generally, judicial and political liberals have opposed the Supreme Court’s enforcement of constitutional federalism, which limits the reach of federal governmental power and leaves room for individual states to experiment with their own policies, suited to local conditions and local political preferences. But some state policy experiments are appealing to those who did not like it when the Supreme Court used ideas about federalism to strike down the Gun-Free School Zones Act and part of the Violence Against Women Act.

So it will be interesting to see the response of those who have harshly criticized the majority’s recent federalism decisions and have professed abject deference to Congress and the Executive branch about federalism matters. From a liberal perspective, one might want to think: I support the enforcement of federalism limits when federalism is really a stand-in for individual rights, and I support strong federal government power when the federal policy in question is really a stand-in for individual rights. But it is rather hard to translate that instinct into sound constitutional law.

Conservatives face a dilemma too, if their conservatism is the kind that puts great importance on strong anti-drug enforcement. But conservatives who take the libertarian position on drugs can happily seize a two-fold opportunity: they can demonstrate a principled fidelity to constitutional federalism and, at the same time, improve federalism’s reputation among liberals.


Here’s what one of the lawyers arguing for legalization, BC law prof Randy Barnett, has to say on the matter:

http://volokh.com/archives/archive_2004_11_21.shtml#1101487076

Final Push for Monday’s Argument:
My preparation for Monday’s Supreme Court argument in Ashcroft v. Raich continues this weekend. I learned a tremendous amount from moot courts at Georgetown, Oklahoma City University, and Harvard Law School. My thanks to all who served as judges for their invaluable feedback and to all those who attended for their support and encouragement.

Update:SCOTUS Blog reports that Acting Solicitor General Paul Clement will be arguing the case for the government. By all accounts, he is a brilliant attorney and most impressive oralist who had, at the time of his appointment in July, 18 previous arguments before the Court (and probably more since then)–as compared with my . . . none.

Update:Here is a detailed guide to Monday’s argument with pictures and extensive links from Drug War Rant ( http://blogs.salon.com/0002762/stories/2004/11/23/raichVAshcroftAGuideToTheS.html ). (Hat tip to Kiwi Pundit)[/quote]

I think it should be approved for medicinal use and I have posted on this before. The only justification for it being such a level offense for possession is if we also made alcohol use illegal. It makes little sense in this country for it be legal to get tore up from the floor up when it comes to being drunk but marijuana use is still seen as the greatest evil. You can smoke as many cigarettes as you want and get cancer. The stance that we are protecting people from it is ridiculous. The majority of the people in Washington have probably done this and worse practices before.

The federal Government shouldn’t be able to dictate that drugs are or are not illegal. While I support a federal authority that can give a thumbs-up to foods and drugs (FDA), I do not believe it ought to be the arbiter of what may or may not go to market; the consumer should consider himself so warned if the FDA label were not present.

I am in favor, generally, of federalism, though I believe that there are certain rights that the federal constitution should enforce.

I am for the legalization for medical use. I think if you have a serious debilitating disease or worse and a few hits of pot help you get through the day well have at it.

I don’t think the problem is impossible to deal with and with a little thought for the poor souls who are suffering could be worked out.

Professor - your a doc…is it the physical effect that the drug has or is it more mental for those that use it for something like Glucoma or cancer? Just curious I never tried it.
Seems like they should be able to refer to some studies or something to make the case.

Given that it has medical benefits, I think it would be criminal to deny sick people this treatment.

I mean, ignoring those who might abuse the policty, we are at ties talking about people who are trying to survive. If this helps them, then there had better be a damned good reason to deny them of it.

Heh, from a Canadian perspective, legalize it, tax it, save money on law enforcement, raise money on taxation… win win! :wink:

[quote]vroom wrote:
Heh, from a Canadian perspective, legalize it, tax it, save money on law enforcement, raise money on taxation… win win! ;)[/quote]

I hate to agree with you vroom, but your right.

Not that hate hate agreeing with you because you’re vroom, but because that is where we are headed. We have antiquated drug laws, that are arbitrary at best. Politicians telling us what drugs are good, and what drugs are bad.

At the turn of the century, you had opium dens in most every mining town in the west. Our country made it through without lasting damage. Pot was called hemp, and they made damn fine ropes. Cocaine was a cure all. Seems that the only drug to make it past the 20’s was aspirin. I doubt it would pass FDA scrutiny now days.

Legalize it, regulate it, and tax the hell out of it.

Just to frame the legal issue more clearly, the issue is whether the federal government has the power to regulate marijuana that is produced in a state, for consumption in that state – thus, no interstate commerce is present.

Going back from Wickard v. Filburn, the Court has allowed Congress to expand the definition its power of regulation of interstate commerce from actual interstate commerce to anything that “in the aggregate could affect interstate commerce” (my paraphrase).

Because of supremacy, if the federal government can regulate something, its laws overrule state laws in that area. So this case is a challenge of the power of the federal government to regulate in a very small subsection of the drug area. This is also important because the federal government has no general police power – it can only pass laws based on its enumerated powers, and the main power used by Congress to pass federal criminal legislation is the Commerce Clause Power.

In other words, this case isn’t about whether it’s right or wrong for the federal government to make marijuana possession illegal overall – it’s about whether the federal government can prevent a state from essentially legalizing medical marijuana within its own borders.

[quote]hedo wrote:
I am for the legalization for medical use. I think if you have a serious debilitating disease or worse and a few hits of pot help you get through the day well have at it.

I don’t think the problem is impossible to deal with and with a little thought for the poor souls who are suffering could be worked out.

Professor - your a doc…is it the physical effect that the drug has or is it more mental for those that use it for something like Glucoma or cancer? Just curious I never tried it.
Seems like they should be able to refer to some studies or something to make the case.[/quote]

The effects on glaucoma are physical. The only mental effect is its use as anti-anxiety agent. The other physical effect is its positive effect on appetite. You can look through my old posts because I posted studies to support this about a year or two ago. Most of what people believe about marijuana are not true and are the result of one or two studies that seem to be more propaganda than truth.

Oh yeah – on the issue of drug legalization, I would be for marijuana legalization, and probably for cocaine legalization too – but not for heroin, or anything like LSD or PCP, or crack or various other substances. I’m not a doc, so I don’t know how to draw the line, but basically if it’s highly addictive or can permanently alter brain chemistry (acid flashbacks, etc.), I wouldn’t want it legalized. (Also an aside, the only drugs I’ve ever used are alcohol and cigars, but I don’t see the outlawing of “soft” drugs as making sense pragmatically).

It should be legal regardless of reason for consumption. IMHO, it really is asinine.

We cannot even grow hemp in this country for commercial purposes. Despite the fact that strains could be developed and grown with basically no THC content.

For textiles and rope, hemp fiber is awesome. Hemp seed is an excellent source of vegetable protein.

I have never heard of anyone wrecking their car and wiping out someones family, domestic violence, or any violent crime for that matter, based on marijuana consumption alone.

Watch an episode of Cops. I will state that 80% of what you see is alcohol related.

It is pretty clear we are a country with a tolerance for getting buzzed, but only in a format that is easily taxable.

I consider myself pretty damn conservative, but really have a case of the ass about our country’s marijuana laws.

For medicinal purposes, it is a no brainer.

Legalize it. Don’t criticize it.

The thing about marijuana is it is NOT chemically addictive. That means, if anyone claims they are addicted to it, they are probably the the type who has an inherited affinity for being addicted to SOMETHING and marijuana just stepped in as a substitute. I am also not for legalization of heroin or any hardcore drugs. The problem is, in this country, marijuana use has been lumped in with every other drug for so long that the stigma attached causes many to believe it is no different than any other drug. If there were actually unbiased studies performed, I would bet that marijuana would show to be safer than alcohol use. Alcohol is chemically addictive yet it is accepted by the community regardless of the damage it causes.

Just curious, ProX: Would you want pot to be legal as a prescription medicine, or as an available substance at a certain age of majority a la tobacco and alcohol?

[quote]lothario1132 wrote:
Just curious, ProX: Would you want pot to be legal as a prescription medicine, or as an available substance at a certain age of majority a la tobacco and alcohol?[/quote]

The second option. I think the government has gone overboard with trying to regulate what all people do. Banning ephedrine is probably why I feel like that. Ephedrine was not killing people like the media tried to make it seem and Bechlor died of more issues than ephedrine. He was also found with pseudoephedrine in his system which implies that he may have taken ephedrine PLUS an over the counter allergy medication. In short, he overdosed. You don’t get rid of Clorox because some baby crawls under the sink and drinks a gallon of it.

If accountability was taught more than trying to blame everyone and everything else for everything that happens to an individual, this world would be a better place.

On Septemeber 6, 1988, the DEA Chief Administrative Law Judge, Francis L. Young ruled:
“Marijuana, in its natural form, is one of the safest theraputic substances known. …[T]he provisions of the [Controlled Substances] Act permit and require the transfer of marijuana from Schedule I to Schedule II. It would be unreasonable, abritrary and capricious for the DEA to continue to stand between those sufferers and the benefits of this substance.”

Doctors can prescribe all kinds of things for you, cocaine, morphine, drugs that alter brain chemistry, drugs with severe side effects, etc. In fact, you can even get the main active ingredient in cannabis, delta-9 THC, in a Schedule III pill. I guess the addition of sesame seed oil cancels out the “evil” effects of the THC? It’s kind of like putting pure caffeine pills as OTC products, but needing a doctor to get coffee. I would say the reality is that you can get profits from a pill, but not a plant. This makes it difficult to get studies done on the whole plant, drug companies see no reason to if they can’t reap some rewards from it. And the NIH has a history of not giving federal approval to studies that aren’t trying to show how bad marijuana is for you.

Someone mentioned aspirin and the FDA. As I recall, no tests were ever done on it. It was let in on anecdotal evidence.

Well, here’s a list of things that more likely to kill you than marijuana overdose/toxicity: Your heart, bad diet, choking, falling down stairs, driving your car, bench pressing, sharks, lightning, Alzheimers, the flu, cleaning your gun, yourself (suicide), aspirin, floods, Tylenol, alcohol, cigarettes, your kid playing with matches, perscription medicines, getting on a ladder to hang Christmas lights, fireworks, a screw up at the hospital, a food allergy, diabetes, AIDS or another STD, cancer, murder, mixing the wrong things while cleaning, okay I could go on and on, but you get the point.

Jonathan Magbie died in prison when he was sentenced to 10 days for marijuana possession. He was paralyzed from the neck down, and was unable to breathe on his own, being struck by a drunk driver when he was 4.
Peter McWilliams died after being convicted of possession. He choked to death on his own vomit from the medications he had to take to combat AIDS. Cannabis helps relieve nausea.
There are more abuses against the sick and dying than this. Sad.

Some say medicine isn’t smoked. Maybe, but marijuana can be inhaled (vaporization) or taken orally (brownies anyone?). Disagreements about the methods of delivery should not prevent the realization that this substance helps people.
Here’s a link to some other medical marijuana news: http://www.marijuananews.com/marijuananews/cowan/medical_cannabis.htm

To-Shin Do

As I said, I agree with legalization – does anyone disagree?

Now, back to that pesky legal question the USSC is actually supposed to decide:

[Eugene Volokh, November 29, 2004 at 1:52pm] Possible Trackbacks

The trouble with press accounts of Supreme Court cases:

I generally much like the work of AP Supreme Court reporters, who have to put out clear and terse copy in a very short time; but unfortunately this story illustrates the pitfalls of press accounts of Supreme Court cases. The story begins with:

http://hosted.ap.org/dynamic/stories/S/SCOTUS_MEDICAL_MARIJUANA?SITE=MIDTF&SECTION=HOME&TEMPLATE=DEFAULT

[Begin AP excerpt] The Supreme Court appeared hesitant Monday to endorse medical marijuana for patients who have a doctor's recommendation.

Justices are considering whether sick people in 11 states with medical marijuana laws can get around a federal ban on pot. [End AP excerpt]

It then goes on for several paragraphs about whether marijuana is medically useful.

It’s only in the 11th paragraph that the story mentions the specific legal question – “The San Francisco-based 9th U.S. Circuit Court of Appeals had ruled against the government in a divided opinion that found federal prosecution of medical marijuana users is unconstitutional if the marijuana is not sold, transported across state lines or used for non-medicinal purposes” – but then it returns again to arguments about whether marijuana bans are good or bad. Finally, in the 16th paragraph, the story does say “Alabama, Louisiana and Mississippi, conservative states that do not have medical marijuana laws, sided with the marijuana users on grounds that the federal government was trying to butt into state business of providing ‘for the health, safety, welfare and morals of their citizens,’” which is the closest the story comes to stressing the state power vs. federal power issue involved here; but, I think, that’s too little and too late.

Nowhere in its 19 paragraphs does the story clearly state the constitutional issue: Does regulation of private possession of marijuana (and private growing for personal use) exceed the federal government’s powers, so that the Constitution leaves the question entirely to the states? I suspect that the typical reader of the story will come away with thinking “The Supreme Court is deciding whether medical marijuana should be banned” – consider again the opening sentence, “The Supreme Court appeared hesitant Monday to endorse medical marijuana for patients who have a doctor’s recommendation” – rather than “The Supreme Court is deciding whether bans on private possession and growing of marijuana should be up to the states rather than to the federal government.”

Early report on oral arguments is interesting – note Scalia’s question concerning the logical extension of the principle:

http://www.bloomberg.com/apps/news?pid=10000103&sid=am6ClUG6KMyQ&refer=us

Medical Marijuana Draws Skepticism at U.S. Top Court (Update1)

Nov. 29 (Bloomberg) – Several U.S. Supreme Court justices expressed doubts that states can let seriously ill patients ease their symptoms by using marijuana, a drug the federal government has designated as illegal.

The Bush administration is appealing a lower court decision allowing two California women to use marijuana on their doctors’ recommendation. The administration says the federal Controlled Substances Act, which lists marijuana among the most strictly controlled drugs such as cocaine and LSD, overrides laws in nine states that permit medical use of marijuana.

There’s no reason to believe everybody is going to get it from a friend or from plants in the back yard,'' Justice David H. Souter told the lawyer for the two women.They’re going to get it in the street. Why isn’t that the sensible assumption?’’

The case pits the federal drug law against a line of Supreme Court decisions that tilted the federal-state balance of power toward the states. The court ruled in 1995 that Congress couldn’t make it a federal crime to possess a gun in a school zone, and in 2000 the justices struck down a provision that let rape victims sue their attackers in federal court.

In those cases the court said Congress’s authority to regulate interstate commerce didn’t cover local, non-economic acts. In today’s case, the two California women say the same logic means Congress can’t ban the doctor-recommended use of locally grown marijuana that doesn’t cross state lines.

Chief Justice

Chief Justice William H. Rehnquist, who has been undergoing treatment for thyroid cancer with radiation and chemotherapy, didn’t attend the hour-long argument in Washington. Justice John Paul Stevens, who presided over the session, said Rehnquist will participate in the case by reading court briefs and a transcript of the argument.

People are sick and people are suffering and people are dying,'' said attorney Randy Barnett, representing California patients Angel Raich and Diane Monson. He said the medical use of marijuana would have atrivial’’ effect on the illegal market for the drug.

Acting U.S. Solicitor General Paul Clement said medical use of marijuana ``is not something that’s going to be limited to one or two users at a time.’’ He said the California law might allow use of the drug by 100,000 patients, including many whose condition isn’t terminal.

Any little island of lawful possession'' creates areal challenge to the statutory regime,’’ Clement said.

No `Medical Necessity’

Justice Antonin Scalia asked Barnett how his logic would apply to federal laws protecting endangered species. Those laws ban possession of ivory or eagle feathers without regard to whether a person obtained them through interstate commerce.

``Are those laws likewise unconstitutional?’’ Scalia asked.

Other states that allow medical use of marijuana are Alaska, Colorado, Hawaii, Maine, Nevada, Oregon, Vermont and Washington, lawyers for the two women said in court papers.

In an earlier marijuana case in 2001, the Supreme Court ruled there was no ``medical necessity’’ exception to the controlled- substance law.

Federal regulation of marijuana possession helps limit demand for the drug, on which users spend about $10.5 billion a year, Clement said.

The case is Ashcroft v. Raich, 03-1454.

BB, the bottom line is old politicians do not want marijuana legalized. It is very hard to reverse the stigma attached so that might explain the ridiculous run around the topic. You would think Cheech and Chong would have made more of a dent on the issue. I have yet to hear a good reason for why it should not be legalized for medical use aside from people ranting that “we need to save the children!!”

A much more thorough summation of the oral arguments, which was written by a law professor in attendance, can be found at this link if you’re interested (BTW, it seems as if arguing in front of the Court is like being subjected to Socratic Method by 9 professors at once – difficult to get any planned point across):

http://lsolum.blogspot.com/archives/2004_11_01_lsolum_archive.html#110176341608722107

Boston,

Well, unfortunately, it is very likely that allowing this activity will have an affect on drug research and manufacturing activities both within California and outside of California. Given the weakened state of the commerce clause this could be enough to enable federal oversight.

However, at the same time, this type of argument is easy to see as grasping!

The court, having chosen to hear the case, has hopefully chosen to place a stake in the ground with respect to the division of powers between federal and state governments vis a vis the commerce clause.

I see your point. The conservative anti-drug viewpoint is going to butt up against the conservative strict interpretation of the constitution viewpoint on this one.

Something to consider is that there is no existing commerce in marijuana yet! The reasons used to justify federal oversight in other cases may not apply when there is in fact no market. There is no interstate trade and there is no foreign trade to be impacted.

It’s going to be interesting to see how the court chooses to address the issue. My guess is they will find for the medicinal use of marijuana, though attempt to limit their finding such that it creates the smallest impact possible on existing powers and policy.

If they disallow it, or create a gaping hole in the commerce clause, I think we will have some interesting ramifications to address in the coming years.

Boston,

On a different note, I recall hearing a lot of complaints about judges “writing laws”.

If the supreme court in it’s wisdom “writes laws” and extends federal powers without basis in the constitution, won’t that be just as annoying?

In other words, is it only a problem when the decisions are “liberal”?