Courting medical marijuana

Next week I'll be reporting from Washington, D.C., after sitting in on the
U.S. Supreme Court's oral arguments in the Oakland Cannabis Cooperative
medical marijuana case, scheduled for 11:00 a.m. on Wednesday, March 28.

Most of the Washington media are expressing interest in this case and
unless I'm misreading the situation there is more interest in drug law
reform in the country than in decades. We should be seeing some "set-up"
stories beginning this weekend, but not all the stories I've seen show an
understanding of the potentially rather narrow federal issues involved.

All the reporters, of course, really ought to read (here comes the
shameless self-promotion part) my new book "Waiting to Inhale: The Politics of Medical Marijuana" (available in your local bookstore and
from Amazon.com and laissezfairebooks.com), and my publisher, Seven Locks
Press, is trying to arrange media appearances for me around the case. But
I thought it might be useful to preview some of the issues that the
Supreme Court will -- and will not -- have before it in this case.

The Supreme Court on Wednesday next will hear United States of America v.
Oakland Cannabis Buyers' Cooperative and Jeffrey Jones, No. 00-151.
Contrary to what some observers think, the case will not give the high
court the opportunity to rule on whether California's medical marijuana
law (Prop. 215, now Section 11362.5 of the Health and Safety Code) or the
similar laws passed in eight other states are valid. But it comes at a
time when intellectual and political ferment over the country's drug laws
is more active than anytime in my memory, and it could have a powerful
influence on drug law reform in the near future.

TRENDING: Is this what you voted for, America?

I'll listen to the oral arguments, talk to as many participants as
possible, and report what I learn to WorldNetDaily (and Orange County
Register, of course) readers.

Some observers believe the Supreme Court took the case in an expedited
manner so it could weigh in on the state-level medical marijuana laws that
have passed by impressive margins wherever they have been on the ballot
over the last five years. However, it cannot do so for the simple reason
that the case before it does not involve a challenge to any of those state
laws. In fact, none of the state laws passed since California passed Prop.
215 and Arizona passed Prop. 200 in 1996 have been challenged in federal
court on the ground that they are in conflict with federal law or the U.S.
Constitution -- or for any reason.

In fact, federal courts have so far been more likely to reprimand the
government for trying to ignore or undermine medical marijuana laws.
Shortly after Californians approved Prop. 215, then-Drug Czar Gen.
Barry McCaffrey announced that he would have federal agents pull the
licenses to prescribe controlled substances of any doctor who recommended
marijuana (or "Cheech and Chong medicine," as he so subtly put it). But a
group of doctors in San Francisco filed an action in federal court and got
a temporary restraining order and then a permanent injunction against the
federal government or any of its multitudinous agents, ordering them not
to threaten or invoke any legal sanctions against doctors who honor the
new California law and recommend marijuana or cannabis to any of their
patients.

So the state laws have not been challenged and will remain intact no
matter how the Supreme Court rules in this case. Since a recent Marijuana
Policy Project study found that 99 percent of simple marijuana possession
cases are handled at the local or state level, the action is still at the
state level.

The case against the Oakland Cannabis Cooperative was brought under
federal law. The issue before the Supreme Court is a relatively narrow one
-- whether under federal law an exemption to the strict federal
prohibition of cultivation, distribution and use of marijuana, by virtue
of its being on Schedule I of the federal Controlled Substances Act, can
be allowed for patients who meet a strict four-pronged test of medical
necessity. However, the briefs filed in the case discuss other related
issues and could give the court the opportunity to rule more broadly if it
chooses.

In some ways the case presents the high court with an interesting dilemma.
Over the past several years, beginning with the Lopez case in 1995, the
high court has shown a pattern of taking cases that give it the
opportunity to limit the power of the national government. In the Lopez
case, it invalidated the Gun-Free School Zone Act not only because most
states already had similar laws, but because it ruled that the
Constitution's interstate commerce clause, while giving Congress broad
authority, did not give it unlimited authority. The area around local
schools cannot be construed to be involved in interstate commerce, a
conservative 5-4 majority led by Chief Justice Rehnquist argued -- even
though some of the guns involved might have been manufactured or purchased
out-of-state -- so Congress didn't have the authority, in a government of
enumerated and therefore limited powers, to pass the law.

Similar rulings have limited the central government's power to punish
certain rape cases, and to authorize suits under federal law against state
governments over insurance and employment practices, by state employees.
Some observers see the possibility that Chief Justice Rehnquist would like
to leave, as part of his legacy, the beginning of a serious challenge on
constitutional grounds to the growth of central government power and
authority, an increase in which the courts have, for the most part,
acquiesced since the New Deal.

So here comes the Oakland Cannabis Cooperative case which could test
whether the court, and especially its limited-government conservative
members, really mean it.

After Prop. 215 passed with a 65 percent majority in 1996, several clubs
or cooperatives in Northern California (some of which had operated before
the initiative passed) expanded their memberships and dispensed cannabis
to patients who could show a recommendation from a licensed California
physician. Some state-level cases tested whether the new law really
allowed such methods of distribution without an unequivocal outcome.

Then in January 1998 (most observers believe at the behest of
then-California Attorney General Dan Lungren) the federal government sued
in federal district court to shut down the clubs. Specifically, it sought
an injunction against "engaging in the manufacture or distribution of
marijuana, or the possession of marijuana with the intent to manufacture
and distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1)," the
federal Controlled Substances Act.

The district court granted the injunction in May 1998, and rejected a
"blanket" assertion of medical necessity for some patients that attorneys
for the Oakland cooperative had requested. All the other Northern
California clubs covered by the injunction went out of business (though
new ones appeared), but the Oakland cooperative stayed in existence and
appealed to the federal Ninth Circuit appellate court to have a medical
necessity defense recognized under federal law.

On Sept. 13, 1999, the Ninth Circuit reversed the district court,
holding that the court could take a medical necessity defense into account
using its equitable discretion, and that the record justified such a
modification of the injunction. On July 17, 2000, the district court
modified its injunction to exempt from federal legal penalties the
distribution of cannabis to patient-members who 1) suffer from a serious
medical condition, 2) will suffer imminent harm if denied access to
cannabis, 3) need cannabis to treat a medical condition and 4) have no
reasonable legal alternative because other legal alternatives have been
tried and found ineffective or intolerable in their side effects.

The federal government appealed this modification and asked the Supreme
Court to issue a stay until the matter could be litigated, which it did
Aug. 29. The Ninth District was prepared to hear the case, but the
Supreme Court took jurisdiction for itself.

We're not talking about a lot of patients here. The cooperative's brief
says only 14 of its several thousand members who qualify to use cannabis
under the unchallenged state law would meet the injunction's test. But if
the Supreme Court agrees that a medical necessity defense is available
under the federal Controlled Substances Act, the ruling would apply
nationwide, including in states that have not yet changed their laws to
allow medical use of marijuana.

It wouldn't be tough to set up such a system. As the Oakland brief notes,
the federal government set up a Compassionate Investigative New Drug
program in the 1970s in response to a glaucoma patient, Robert Randall,
who secured a medical-necessity ruling from a lower court. That program, which
stopped accepting new patients in 1990, still distributes cannabis,
courtesy of the taxpayers, to eight patients. Nobody has argued that this
program violates the Controlled Substances Act. (The government, in its
brief, doesn't mention the program.)

The government argues that a necessity defense, one of the oldest concepts
in Anglo-Saxon common law?the tradition upon which our legal system is based?is simply not available under the Controlled Substances Act. It says Congress, by keeping marijuana on the Act's most restrictive schedule, Schedule I, has made its intentions clear in the matter and the courts cannot override it.

In some ways, the government's case is what I call the "Taming of the
Shrew" argument. In the Shakespeare play, the evidence that Kate had
become a suitably obedient wife worthy of having her husband collect her
dowry was her willingness to declare that what appeared to normal mortals
to be the noonday sun was in fact the moon -- if her beloved lord and
master declared it to be so. The government argues that marijuana is on
Schedule I, and Schedule I contains, by definition, drugs with a large
potential for abuse, no accepted medical uses and no ability to be used
safely under medical supervision. Therefore no medical necessity or
medical necessity defense is possible.

You could easily argue, of course that in objective, scientific fact
marijuana doesn't fit the criteria for Schedule I and has been incorrectly
-- perhaps even illegally -- been placed on Schedule I. In fact, a
petition to "reschedule" marijuana is currently working its way through
the Health and Human Services and DEA bureaucracies. But so far, it is
true, marijuana remains on Schedule I.

The Oakland brief argues that it would have been necessary to rule out a
necessity defense explicitly, and nothing in the act's language or
legislative history suggests an intent to rule out a possible necessity
defense.

Oakland's case will be argued by Prof. Gerald Uelmen of Santa Clara
University, who has argued more than 50 appellate cases and was on O.J.
Simpson's "dream team." The government's case will presumably be argued by
Solicitor General-designate Ted Olson of Florida post-election fame, a
Supreme Court bar veteran.

The Family Research Council and Drug Free America Foundation have filed
amicus curiae or "friend of the court" briefs on behalf of the
government. California Attorney General Bill Lockyer has filed an amicus
brief loaded with solid 9th and 10th Amendment arguments on the power and
liberties of the states and the people, on behalf of the Oakland
cooperative and California's right to make its own decisions in this area.

The National Association for the Reform of Marijuana Laws (NORML) and
National Association of Criminal Defense Lawyers have filed on Oakland's
behalf, as have the California Medical Association, the California Nurses'
Association, the Lymphoma Foundation of America, several AIDS patients
groups and Elvy Musikka, a federal patient. A group of elected officials
including New Mexico Gov. Gary Johnson, Cumberland County Sheriff Mark
Dion and state Sen. Anne Rand in Maine, and California state Sen. John
Vasconcellos have filed their own brief on behalf of the Oakland
cooperative.

With New Mexico passing some modest drug-reform laws, with nine states
having passed medical marijuana laws and several passing or considering
laws permitting the growing of industrial hemp, with a renewed national
discussion on drug laws centered around the movie "Traffic" -- and with
Canada's highest court having ordered the government to set up a medical
marijuana authorization and distribution system or face the voiding of all
its marijuana-possession laws and Mexican President Vicente Fox having
endorsed the idea of drug legalization as preferable to the violence and
corruption surrounding the current laws -- drug law reform is in play as
it has not been since the 1970s. Indeed, public willingness to reconsider
drug prohibition may be greater now than it was then.

The Supreme Court's members serve for life, of course, theoretically
making them immune to political pressure and the democratic passions of
the moment. But most constitutional scholars say that the Supreme Court
follows election results eventually. In this case the constitutional
arguments -- prepared largely by attorney Robert Raich who has advised the
Oakland cooperative since its inception, with key help from Randy Barnett,
who teaches at Boston University's law school -- against the government's
position are remarkably powerful and sophisticated.

Links to legal documents