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  1. BA
    Top Court Hears Local Pot Case
    (28 Nov 2004)

    Oakland Woman's Lawyers Will Argue Free Medical Marijuana Not 'Interstate Commerce'

    Oakland's Angel Raich says the marijuana she uses to keep herself out of pain and alive is grown in California and given to her free of charge.

    It's neither "interstate" nor "commerce," and so it's beyond the reach of Congress' regulation, she and her lawyers claim. On Monday, the U.S. Supreme Court will hear their arguments in a case that will decide whether the federal government should be permanently barred from prosecuting medical marijuana patients and providers.

    It's a classically conservative argument for a classically liberal cause -- perhaps the only way to ever convince this Supreme Court to sign off on letting someone smoke marijuana.

    "Federalism is not just for conservatives," says Boston University law professor Randy Barnett, in what has become a sort of medical marijuana mantra. He'll argue the case to the high court Monday on behalf of Raich and her cohorts: patient Diane Monson of Oroville and two unnamed Bay Area people who supply Raich with marijuana.

    Barnett says his argument "reinforces the value of federalism, which all members of this court at one time or another have expressed great sympathy for ... and it's the appeal of that general principle which we believe will appeal to the majority of the court."

    The government -- which doesn't differentiate between "medical" marijuana and any other kind, deeming it all illegal -- argues that Congress does have the power to control Raich's and Monson's drug because it's inextricably tied to the illegal interstate and international marijuana market.

    This case's seeds were sown long before it was actually filed in October 2002. It rose from the ashes of the Supreme Court's May 2001 decision in the Oakland Cannabis Buyers Cooperative's case, in which the high court ruled there's no medical necessity exception to the Controlled Substances Act, which deems marijuana to have no valid medical use.

    But the court that day stressed it wasn't ruling on the constitutional questions underlying the medical marijuana debate, and so Raich, Monson and their lawyers set out to tailor-make a case raising exactly those issues.

    Raich says she uses marijuana to combat scoliosis, temporomandibular joint disease, endometriosis, fibromyalgia, a uterine fibroid tumor and a rotator cuff injury. She also has an inoperable brain tumor and suffers post-traumatic stress disorder from childhood abuse and nonepileptic seizures.

    Monson says she uses marijuana to control chronic back pain. When her home was raided in August 2002, local deputies and a local prosecutor agreed her six marijuana plants were within county guidelines under state law, but DEA agents took the plants without charging her with any crime.

    Their lawsuit raises four distinct issues:

    that the Ninth and 10th amendments limit federal power, leaving certain powers -- such as authorizing medical marijuana use -- to the states.

    that federal interference violates the Fifth Amendment due-process rights of Californians to be free from pain, prolong their lives and maintain the physician-patient relationship's sanctity.

    that medical necessity provides an exception to the federal ban on marijuana -- an argument struck down by the Supreme Court in the OCBC case for distributors but not necessarily for patients.

    that the Constitution's commerce clause lets Congress regulate only interstate commerce, and that Californians' medical marijuana use neither crosses state lines nor is commerce.

    It's that fourth claim, the commerce clause claim, on which the Supreme Court will hear arguments Monday.

    In March 2003, a federal judge in San Francisco denied the plaintiffs' request for a preliminary injunction to halt federal raids upon medical marijuana patients and providers. But in December 2003, a panel of the 9th U.S. Circuit Court of Appeals voted 2-1 to reverse that ruling, finding the plaintiffs had shown a strong likelihood they could prevail at trial on their commerce clause claim, and ordering the trial judge to enter a preliminary injunction protecting Raich and Monson against federal raids.

    That injunction has been considered to apply to those "similarly situated," effectively tying the federal government's hands against prosecuting medical marijuana patients and providers throughout the eight 9th Circuit states that have adopted medical marijuana laws. The federal government appealed to the Supreme Court to reverse the appeals court and void the injunction.

    The government claims it has a right to regulate local activity that is an essential part of a larger regulation of economic activity. Marijuana trafficking regularly crosses state lines and involves money changing hands, it says, and all marijuana -- even when it's grown and given within a single state -- affects the overall black-market supply, and so is subject to a federal ban.

    This case's issue resonates well beyond the 9th Circuit and beyond states with medical marijuana laws. California, joined by the states of Washington and Maryland, filed a friend-of-the-court brief on the Raich/Monson team's behalf -- as did Alabama, joined by Louisiana and Mississippi.

    Those Deep South states don't have medical marijuana laws and aren't likely to have them anytime soon, yet they feel strongly about keeping Congress from wielding power the Constitution doesn't award it. Call it modern conservatism, call it lingering resentment from confederate days of yore -- whatever it is, this case has created some decidedly odd bedfellows.

    "This is such an obvious issue that, although certain entities in the federal government don't understand it, the overwhelming majority of Americans do," said Oakland attorney Robert Raich, a member of the patients' and providers' legal team, and Angel Raich's husband.

    An archive of all documents filed in this case is available at www.angeljustice.org

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