Medical Marijuana Victory!

A picture named rxleaf.jpgToday, the United States Court of Appeals for the 9th Circuit made a major ruling, directing a preliminary injunction to prevent the Federal government from interfering with non-commercial medical marijuana activities in states where medical marijuana is legal!
Thanks for the heads up from the wonderful folks at Brutal Hugs and also The Volokh Conspiracy (which has some excellent analysis).
In its ruling, the 9th Circuit relied on the Commerce Clause of the Constitution (an approach that I’ve found very appealing, though not without concerns). It’s a strong ruling, and one that is likely to go to the Supremes (The Supreme Court earlier in Oakland had specifically noted that it was not ruling on Commerce Clause issues at that time).
The case is: ANGEL MCCLARY RAICH; DIANE MONSON; JOHN DOE, Number One; JOHN DOE, Number Two, Plaintiffs – Appellants, v. JOHN ASHCROFT, Attorney General, as United States Attorney General; ASA HUTCHINSON, as Administrator of the Drug Enforcement Administration, Defendants – Appellees.

In simple terms, the appellants had asked the court to prevent the federal government from using the CSA (Controlled Substances Act) against medical marijuana growth, distribution and use that is non-commercial. They claimed court relief was required because the fear of federal harrassment affected their ability to provide for their medical needs.
Here are some quotes from the decision (pdf):

We find that the appellants have demonstrated a strong likelihood of
success on their claim that, as applied to them, the CSA is an unconstitutional
exercise of Congress’ Commerce Clause authority.
We decline to reach the
appellants’ other arguments, which are based on the principles of federalism embodied in the Tenth Amendment, the appellants’ alleged fundamental rights
under the Fifth and Ninth Amendments, and the doctrine of medical necessity.

…[the appellants] contend that, whereas the earlier cases concerned
drug trafficking, the appellants’ conduct constitutes a separate and distinct class of activities: 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.

Clearly, the way in which the activity or class of activities is defined is
critical. We find that the appellants’ class of activities–the intrastate,
noncommercial cultivation, possession and use of marijuana for personal medical
purposes on the advice of a physician–is, in fact, different in kind from drug
trafficking. For instance, concern regarding users’ health and safety is significantly different in the medicinal marijuana context, where the use is pursuant to a physician’s recommendation. Further, the limited medicinal use of marijuana as recommended by a physician arguably does not raise the same policy concerns regarding the spread of drug abuse. Moreover, this limited use is clearly distinct from the broader illicit drug market–as well as any broader commercial market for medicinal marijuana–insofar as the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce.

The ruling also quoted one of my favorite states’ rights quotes (which I’ve mentioned here before:

(“It is one of the happy incidents of the federal system 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.”)

The final result:

For the reasons discussed above, we reverse the district court. We find that
the appellants have demonstrated a strong likelihood of success on the merits. This
conclusion, coupled with public interest considerations and the burden faced by the
appellants if, contrary to California law, they are denied access to medicinal
marijuana, warrants the entry of a preliminary injunction. We remand to the district
court for entry of a preliminary injunction consistent with this opinion.

An interesting little bit in the footnotes of the decision. Apparently the court feels strongly enough about the overall purpose of the activity being outside the scope of the Commerce Clause provisions for federal intrusion, that they wouldn’t even mind if the seeds came from elsewhere (in other words, bringing in seeds from Canada or… to grow non-commercial medical marijuana would not, in itself, be enough to trigger the Commerce Clause:

At oral argument, we questioned counsel for the appellants about the origin
of the marijuana seeds used by the appellants. Counsel for the appellants assured
us that they came from within California. Regardless, we find that the origin of the
seeds is too attenuated an issue to form the basis of congressional authority under
the Commerce Clause. In McCoy we discussed the fact that the film and camera in
that case were manufactured out of state. We expressed “substantial doubt” that
this fact (which was part of the statute’s jurisdictional hook in that case) “adds any
substance to the Commerce Clause analysis.” McCoy, 323 F.3d at 1125. Here, the
potential out-of-state production of seeds used by the appellants for their
noncommercial activity is a significantly attenuated connection between the
appellants’ activities and interstate commerce. If the appellees sought to premise
Commerce Clause authority in this case solely on the possibility that the seeds used
by the appellants traveled through interstate commerce, we would conclude, as we
did in McCoy with respect to the out-of-state manufacture of the film and camera,
that this, by itself, “provides no support for the government’s assertion of federal

This is all great news, and a cause for celebration, even though (and perhaps to some extent because) it will be appealed to the Supreme Court.
Update: Here’s a quote from Angel McClary Raich for you:

“Not too many people get to come up against someone who is as evil as (US Attorney General) John Ashcroft and actually win and that feels very good,” she said.

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