Snuffing Out the Pot: Gonzales v. Raich and Regulating Medical Marijuana
When California voters passed Proposition 215 - later known as the Compassionate Use Act of 1996 - they allowed patients who were seriously ill to receive marijuana as a form of treatment, with authorization from a physician. In 2002 the law came under question when Angel Raich and Diane Monson, both users of the so-called "medical marijuana", had their cannabis plants destroyed by the Drug Enforcement Agency. The DEA had acted under the Federal Controlled Substance Act (CSA) to seize and destroy the plants. This act of Congress, passed in 1970, was meant to combat illicit drug trafficking and possession of substances like marijuana. The CSA declared that marijuana was a Schedule I drug because of its "high potential for abuse", "lack of any accepted medical use" and the "absence of any accepted safety for use in medically supervised treatment." This classification is certainly accurate, as marijuana is the most commonly used illicit drug in the United States, with over 3.1 million people using the drug on a daily basis, and causing various physical disorders from anxiety to personality disorders.
Unfortunately, because the women were growing a drug that was considered unlawful to possess under the CSA, the DEA believed it had the authority to destroy the plants. The women believed that without their supply of marijuana, they would suffer further physical pain that could possibly be fatal. Moreover, they believed that the CSA violated "the Commerce Clause, the Due Process Clause of the Fifth Amendment, the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity." Thus they sued then Attorney General Ashcroft and the head of the DEA, seeking "injunctive and declaratory relief prohibiting the enforcement of the federal CSA" because they were simply growing marijuana for medical use. The original case, Raich v. Ashcroft, was heard in 2003 by the District Court and was denied a motion for a preliminary injunction. Not willing to give up, Raich and Monson took their case to the Ninth Circuit Court of Appeals. The divided panel ruled in favor of the women, believing that the "CSA is an unconstitutional exercise of Congress' Commerce Clause authority." However, the government appealed the ruling and the case made its way to the Supreme Court under the new name, Gonzales v. Raich. The High Court, while troubled by the medical concerns of the case, realized they had a constitutional question to deal with as well. They had to decide whether Congress' power to regulate interstate markets for medicinal substances encompassed "the portions of those markets that are supplied with drugs produced and consumed locally." On June 6th, 2005, the court ruled 6-3 in favor of the government.
In the majority opinion, Justice Stevens explains how Congress was in its own right to regulate locally grown drugs like in Gonzales. He asserts that the case shared many similarities with Wickard v. Filburn (1942) and likens the CSA to the Agricultural Adjustment Act of 1938, which was intending to control the volume of wheat moving between states, much how the CSA regulates marijuana. Stevens believes that Congress had a "rational basis" to regulate these local markets as they could potentially affect interstate commerce. He notes that in both cases respondents cultivated, for home consumption, "a fungible commodity for which there is an established, albeit illegal, interstate market," meaning that the ruling on the Gonzales case should not differ from Wickard due to past legal precedent. Stevens is correct that the failure to regulate the intrastate manufacture of marijuana would "leave a gaping hole in the CSA" because of the obvious demand for the drug by millions of users. Were local markets excluded from the CSA's coverage, it would be simple for people to farm and sell marijuana without fear of being prosecuted by the Federal Government. This would only lead to further proliferation of a drug proven to be dangerous.
Justice Stevens acknowledges the opposing arguments, but explains how they are flawed. He accurately asserts that the respondents had a "myopic focus" on the Lopez and Morrison cases, because both cases involved only a single statute instead of a comprehensive law that impacted interstate commerce. In those cases, the court ruled that Congress had overextended its commerce clause powers in passing laws regulating guns in schools and violence against women. But Congress is perfectly within its right to pass a law that regulates locally grown drugs since they are considered an 'economic' market. As Lopez and Morrison did not have economic properties, it seems premature that the respondents focused on those two decisions to try and advance their case. Stevens also responded to claims from the dissenting judges that America's federal system was at stake if Congress was allowed to regulate the smallest activity like growing cannabis plants, something that would typically be reserved to the state. But in this case, Stevens notes that "The Supremacy Clause unambiguously proves that if there is any conflict between federal and state law, federal law shall prevail" and that no "state activity" can "thwart the regulatory power granted by the commerce clause to Congress." Finally, Stevens rightly sees that the respondents are not "hermetically sealed off" from the greater market, and are instead potential contributors to the larger illicit market that exists for marijuana. The idea that the California law isolates the respondents is indeed a "dubious proposition" since there is no way of confirming whether other people that are protected by this law will control their supply of marijuana as religiously or responsibly.
In addition to Stevens' opinion, Justice Scalia weighed in his own concurring thoughts. Scalia explained that his opinion sided with the majority, but that he differed with them over the "doctrinal foundation" of the ruling. Scalia writes that his opinion is meant to shed light on the fact that Congress' power to regulate channels of interstate commerce do not come from the commerce clause alone, rather they derive from the Necessary and Proper clause of the Constitution. If passing laws that regulate certain intrastate markets is necessary to facilitate Congress' duty to regulate interstate commerce, than the Constitution grants them this right. Although the dissenters see this as an expansion of Congress' power to regulate interstate commerce, Scalia explains that this is not the case. He mentions that non-economic intrastate activities can only be regulated when failure to do so "could . . . undercut" Congress' ability to regulate interstate commerce. The Necessary and Proper clause is used by Congress to make laws that will help to make its regulation of interstate commerce more efficiently, not necessarily expand what it is regulating. Essentially, Scalia's opinion narrows Congress' power to regulate interstate commerce, not expands it as some suggest.
Justice O'Connor, as one of three dissenting judges, disagreed with the majority's ruling. Explaining that California is a "laboratory", she argues that the majority opinion squashes all hope for the "experiment" of medical marijuana to fully be tested. Explaining that Congress had provided no evidence that medical marijuana substantially affects interstate commerce, Justice O'Connor believes the decision to be quite unfair to respondents who need the drug to sustain their livelihood. But O'Connor neglects to mention that before the passage of the CSA, marijuana had not been as heavily regulated. As Justice Stevens notes, "The Marihuana Tax Act did not declare the drug illegal per se", but instead placed hurdles on those who tried to acquire the drug. During this time doctors were allowed to prescribe the drug as a medicine, albeit after passing through the bureaucratic red tape. Thus, it was possible for people to have observed the medical benefits of marijuana at the time and recorded them. Yet no substantial record exists of marijuana's benefits, and the drug still remains classified as a Schedule 1 class drug. For California to engage in an experiment that has already been tried seems quite useless.
Continuing her argument, Justice O'Connor further believes that the decision reached in the case is "irreconcilable" with the Lopez and Morrison decision because the Court contradicts itself. The High Court had invalidated the laws in these prior cases because they represented an attempt by Congress to regulate a non-commercial activity. O'Connor points out that growing marijuana for medical use can hardly be constituted as commercial, yet the court let the law stand. However, the Court did not decide based on the fact that growing cannabis is "commercial", rather it ruled on the theory that home-grown marijuana could potentially affect interstate commerce. The other cases were clearly a breach of Congress' powers and were overruled as thus, but for this decision the Court rightly concluded that Congress had every right to regulate a known harmful substance. Curiously, O'Connor explains that she would not have voted for the California initiative personally. But she still defends the law because of the United States' federated system. According to the theory of dual federalism, states have their own sphere of influence, wherein they reign supreme. Justices O'Connor and Thomas both rely on this theory to explain their dissents, noting how the Federal government should respect state supremacy. Yet many political scientists now believe that dual federalism is outdated, and a mode of cooperative federalism, where states and federal government's spheres overlap, now exist. This theory would explain government's "interference" in historically state issues and thus counters O'Connor and Thomas' arguments on that front. But Justice Thomas writes in his dissent that Congress would seemingly have the potential to regulate anything if it can regulate medical marijuana. While this may seem worrisome at first, Thomas neglects to mention that the Court ruled in favor of the government only because it believed marijuana impacted interstate commerce. Previous laws that did not fall under this judgment were invalidated. The Court keeps Congress in check by reviewing potential violations of its commerce clause powers.
The decision in Gonzales v. Raich, does not seem to end well for Angel Raich and Diane Monson. But Justice Stevens argues that there is still hope for their case via certain legal avenues and the democratic process. He notes that the CSA calls for review of Schedule I drugs, and that if marijuana were found to be more beneficial than harmful, it could be removed and used for medical treatment. Also, through the democratic process, Raich and Monson could bring their case to Congress to enact laws that would reflect "the voice of voters" who agree with them. Until that time however, Stevens regrets, the current state of law explains that the Court must rule against them. The Supreme Court can only interpret the Constitution, not govern based on morality alone.
"NIDA Info Facts: Marijuana." National Institute on Drug Abuse. 2 March 2004
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