Thursday, December 18, 2003

Rights & Reason: Victory for Medicinal Pot

On Tuesday, the U.S. Court of Appeals for the Ninth Circuit ruled California’s medical marijuana law trumped the federal ban on the drug, at least in a noncommercial, intrastate context. The case was brought by four people, two of whom use marijuana, while the other two provide it. The Court describes the medical necessity of the marijuana for the first two plaintiffs:
Appellants Angel McClary Raich and Diane Monson (the “patient-appellants”) are California citizens who currently use marijuana as a medical treatment. Appellant Raich has been diagnosed with more than ten serious medical conditions, including an inoperable brain tumor, life-threatening weight loss, a seizure disorder, nausea, and several chronic pain disorders. Appellant Monson suffers from severe chronic back pain and constant, painful muscle spasms. Her doctor states that these symptoms are caused by a degenerative disease of the spine.

Raich has been using marijuana as a medication for over five years, every two waking hours of every day. Her doctor contends that Raich has tried essentially all other legal alternatives and all are either ineffective or result in intolerable side effects; her doctor has provided a list of thirty-five medications that fall into the latter category alone. Raich’s doctor states that foregoing marijuana treatment may be fatal. Monson has been using marijuana as a medication since 1999. Monson’s doctor also contends that alternative medications have been tried and are either ineffective or produce intolerable side effects. As the district court put it: “Traditional medicine has utterly failed these women . . . .”
The other two plaintiffs cultivate the marijuana and provide it to Raich and Monson free of charge. Nevertheless, the Drug Enforcement Agency “seized and destroyed” the marijuana plants Raich and Monson relied upon. Attorney General John Ashcroft has made it very clear he will not respect state laws permitting medicinal use of marijuana. Accordingly, the plaintiffs filed suit seeking an injunction to protect their ability to grow and use marijuana. The Ninth Circuit granted the injunction, reversing a district court’s decision, because the use of marijuana described here falls outside Congress’s power to regulate interstate commerce.

This should be an obvious conclusion to anyone who understands the Constitution. If you grow a crop and give it away to someone within the same state, that is neither “interstate” nor “commerce”. Traditionally, however, common sense alone does not prevail in Commerce Clause challenges. Since the New Deal, the courts regularly uphold federal regulations that “affect” commerce, even if the rules deal with purely in-state activities. The idea is that Congress should be allowed to control any private activity that might influence a national regulatory scheme. One of the three judges in this case in fact cited that principle in dissenting from the court’s decision. Circuit Judge Arlen Beam argued that the government’s ban on medicinal marijuana was consistent with a New Deal-era ruling that permitted the government to prevent a farmer from growing crops in excess of a federal quota. Judge Beam sadly sees no problem with the government telling a farmer what to grow, which tells me he sees little bounds to federal Commerce Clause power.

The intent of the Commerce Clause was to enable Congress to ensure national markets for goods and services; that is, markets free of parochial state roadblocks. There is nothing to suggest the Framers intended Congress have the power to regulate every act that might “affect” commerce, and more importantly, nothing to support the view that Congress can simply ban whole industries (such as marijuana) from commerce simply because the government disapproves of its use. Think about it. If Congress can ban any product it wants from interstate commerce simply by passing a law, then why was a constitutional amendment necessary to enact national prohibition on alcohol? Prior to the New Deal, even prohibitionists understood Congress simply couldn’t tell people what they could own, buy, or sell in their own communities.

Of course it’s one thing to ban alcohol. It’s quite another to deny people use of a product that provides legitimate medical treatment. I wonder how the Justice Department responded to the Court’s statement that Angel Raich could die without continuing marijuana treatments. It’s sickening to think there is any circumstance where the attorney general of the United States—even a morally obtuse Christian like John Ashcroft—would let an American die to preserve an irrational federal law. It certainly makes you question President Bush’s commitment to preserving the American values he claims we’re bringing to Iraq. Torturing dying people is more consistent with the former regime of Saddam Hussein than with the Constitution written by James Madison.

Congratulations to the plaintiffs in this case, and to their attorney, Randy Barnett, a contributor at the Volokh Conspiracy.

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