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Pot Shots
Ashcroft v. Raich: Medical Marijuana and the Supremes
by FRED GARDNER

"I can see the day comin’ when even your home garden’s gonna be against the law."

-Bob Dylan

On Monday morning, Nov. 29, the U.S. Supreme Court will hear oral arguments in the case now known as Ashcroft et al v. Raich et al. The ruling, expected in July ’05, will determine if and how the federal Controlled Substances Act applies to more than 100,000 people who use cannabis as medicine under the law in California and other western states. A win for Angel Raich and her co-defendant, Diane Monson, would confer unambiguous legitimacy; a loss will mean widespread terror with the DEA picking off growers, distributors and persons of interest at will.

The suit started out as Raich et al v. Ashcroft et al. It was filed in October, 2002, in response to intermittent DEA raids (including the one that closed the 6th Street club in San Francisco, and the destruction of WAMM’s garden north of Santa Cruz). Angel McClary Raich, 39, was the prime mover. Her life would be at risk, she contended, if the feds raided the two caregivers who were growing her year’s supply of cannabis (nine pounds, most of which she would incorporate into baked goods). So she sought a court order enjoining the Justice Department and the Drug Enforcement Administration.

Although painfully thin due to her afflictions, Angel (which is the name she took for herself) has a powerful ego and a desire to make history "for all of us." She comes from Stockton, working-class background. Her parents divorced when she was four. She has disturbing memories of being molested by a family member. At 12 she was put in a full-body brace to correct curvature of the spine. She developed asthma and had several cysts removed (endometriosis) while still in high school. She married her high school sweetheart. They worked as apartment managers in the Central Valley and had two kids. They divorced. Angel remarried and worked at a series of blue- and white-collar jobs. At age 30 she had a serious adverse reaction to the birth-control pill, resulting in partial paralysis. Confined to a wheelchair, in pain, she was given strong prescription painkillers -synthetic opiates, methadone and Fentanyl- which induced nausea, vomiting and other intolerable effects. She was hospitalized and made a feeble attempt to cut her wrists. A nurse advised her to try marijuana; Angel wouldn’t hear of it because it could cost her custody of her kids. But then desperation led her to try the prohibited herb, and her pain receded, and in due course she regained her mobility and found her calling as a martyr/organizer.

By the end of the’90s Angel had moved from the Central Valley to the Bay Area, made friends with other patients and activists trying to implement California’s medical marijuana law, and formed a non-profit of her own called "Angel Wings Outreach." In the course of helping patients deal with legal problems, Angel met attorney Robert Raich. "It really became hard to see where he ended and I began," Angel recalls. "We became one!" And you thought the guitarist who married his drummer was lucky? How about the lawyer specializing in medical-marijuana defense who hooks up with the woman who might die without it?

Rob Raich, 45, is a rabbi’s son who went to Harvard and then to law school at the University of Texas. He is almost as thin as Angel, very soft-spoken and mild-mannered. It was Rob who had the insight, back in 1996, that section 885(d) of the Controlled Substances Act, which allows undercover police officers to buy, handle, and sell narcotics, could apply to a city-authorized cannabis dispensary. Nov. 29 will not be his first appearance before the Supremes. Rob represented the Oakland Cannabis Buyer’s Co-op in a case initiated by the Clinton Justice Department in 1998. The Court eventually ruled that the OCBC couldn’t claim "medical necessity" as grounds for violating the Controlled Substances Act. Whether an individual could claim "medical necessity" was not addressed in the OCBC case; it is one of the arguments Angel’s lawyers make on her behalf in the present case.

Angel’s co-plaintiffs are two anonymous growers ("caregivers" in terms of California law) and Diane Monson, a 47-year old accountant who has her doctor’s approval to use cannabis to treat disabling back pain and spasms. In August, 2002, Monson was growing six outdoor plants in her home garden in the foothills of Oroville. DEA agents arrived to question her about a large quantity of marijuana growing elsewhere in Butte County on property that she and her husband owned and rented out. She told them she’d been unaware of the large grow. The DEA agents said they were going to confiscate her six plants then and there. (Ordinarily the feds don’t concern themselves with small quantities of marijuana.) Monson contacted the Butte County Sheriff, and deputies soon arrived to confirm that her plants were legal under Prop 215. A standoff ensued during which the Butte County District Attorney, Mike Ramsey, asked the U.S. Attorney, John Vincent, to call off the raid. The feds prevailed, and as Diane Monson read aloud the text of Prop 215 ("I thought they needed to hear it," she says), the DEA agents macheteed and hauled away her almost-ready-to-harvest herbal painkiller.

Raich and Monson are represented by Rob, naturally, and San Francisco defense specialist David Michael, and Randy Barnett, a professor of constitutional law at Boston University School of Law, an authority on the 9th amendment. In requesting an injunction they argued, among other things, that the federal government has no jurisdiction because the process by which the plants were grown for and consumed by Raich and Monson did not affect interstate commerce significantly.

The request for a preliminary injunction was denied in March 2003 by U.S. District Court Judge Martin Jenkins. Raich et al appealed to the 9th Circuit, and in October ’03, made their arguments to a three-judge panel (Pregerson, Paez and Beam, on loan from the 8th Circuit). In December ’03 the 9th Circuit panel (with Beam dissenting) directed the District Court Judge to issue the preliminary injunction. It would read:

"Defendants, and their agents and officers, and any person acting in consort with them, are hereby enjoined from arresting or prosecuting Plaintiffs Angel McClary Raich and Diane Monson, seizing their medical cannabis, forfeiting their property, or seeking civil or administrative sanctions against them with respect to the intrastate, noncommercial cultivation, possession, use, and obtaining without charge of cannabis for personal medical purposes on the advice of a physician and in accordance with state law, and which is not used for distribution, sale or exchange." That injunction -which the Bush Administration is asking the Supreme Court to quash- is what made the summer of 2004 relatively stress-free for many Californians who were growing for or distributing to patients whose doctors had approved cannabis use.

The Justice Department case will be argued by acting Solicitor General Paul Clement. Barnett will do most of the talking for Raich-Monson. Each side has made its arguments in written briefs, and these have been supplemented by "amici" (friend of the court) briefs from interested parties. Each side gets 30 minutes for oral argument. Usually but not always the questions posed by the judges (who have already read the briefs and formed opinions) reveal enough to indicate which way they’re leaning.

The feds argue that Congress had a valid goal in passing the Controlled Substances Act to regulate interstate commerce in licit and illicit drugs. "Medical" users growing their own would undermine that goal. Interstate commerce, although not affected by a few instances of medical users growing their own cannabis in California, is inevitably affected when all such instances are considered in aggregate. All marijuana-related activity is inherently economic because marijuana is a "fungible" substance -it can be bought and sold in commerce. All marijuana is essentially the same, and if the parties in this case didn’t have marijuana grown for them, they’d be buying it on the market.

Among the feds’ arguments is one usually left unspoken: prohibition serves the interests of the pharmaceutical corporations. As expressed in the Solicitor General’s brief, "Excepting drug activity for personal use or free distribution from the sweep of the CSA would discourage the consumption of lawful controlled substances." It would also undercut "the incentives for research and development into new legitimate drugs." That’s as close as the government has come to acknowledging that wider cannabis use would jeopardize drug-company profits.

The U.S. Supreme Court overturns three out of four cases it chooses to review, but Cassandra is not laying odds on Ashcroft v. Raich. The absence of Chief Justice Rehnquist (undergoing treatments for cancer) works to Raich’s advantage. As a young lawyer in the Nixon White House, Rehnquist helped write the Controlled Substances Act. His questions during the OCBC oral argument were overtly hostile. And he’s considered results-oriented (fight the war on drugs) rather than principled (curtail the overarching commerce clause). Of course Rehnquist could still read the transcript and vote on the Raich case, even if he’s too sick to attend the oral argument. He could even write an opinion (or have his law clerks do so)… If there’s a 4-4 tie, the opinion of the 9th Circuit stands, but doesn’t become binding authority on the rest of the country.

Most of the amici briefs focus on the issue of states’ rights. For people who remember the battles to end segregation in public schools in the South, there is obvious irony our side calling for "states’ rights." It was in the name of states’ rights that governors Orville Faubus and Ross Barnett barred the doors, while up north we were singing "The ink is black, the page is white, together we learn to read and write, to read and write. And now a child can understand this is the law of all the land -all the land!"

Another inversion involves the question of individual rights, to which so-called conservatives always pay lip service. The right to self-medicate is an individual right if ever there was one -but the conservatives are suddenly all about "public health," like a bunch of so-called liberals.

The marijuana prohibition takes us through-the-looking glass because it’s based on the Mad Hatter’s premise that marijuana is harmful, not helpful. The feds and their amici refer to marijuana as only "purportedly," "assertedly," "allegedly" medical. But the record established at the district court level -which is supposedly all the Court goes on- consists of four declarations by the two patients and their physicians showing that cannabis does indeed have medical benefits. The government submitted no evidence to the contrary. They contend it’s just a question of law. The key precedent is a 1942 case, Wickard v. Filburn, which established that impact on interstate commerce is not a function of individual transactions (such as caregivers growing cannabis for Angel Raich) but of all such transactions in aggregate (all medical users growing their own or having it grown for them within California). Filburn was an Ohio farmer who grew more wheat than he was allowed to under the Agricultural Adjustment Act, which was intended to limit production to keep prices up. That Act was clearly trying to regulate economic activity. The Court ruled that Congress could regulate Filburn’s consuming his own wheat on his own farm because if all farmers acted likewise, Congress’s scheme to regulate the price would be undermined.

Raich et al argue that Wickard v. Filburn is a bad analogy because Filburn was selling some of the wheat he raised, and much more of it was being consumed by his cows (from which he derived milk, and which he sold occasionally) than by his family. He also raised chickens, and sold eggs, i.e., he was using his wheat in running a commercial farm. Moreover, the Ag Adjustment Act didn’t apply to farmers growing small quantities for family use. The principle of "aggregation" established in Wickard has been challenged in two cases that Raich et al cite in their brief: Lopez (1995) and Morrison (2000).

Raich et al’s arguments are designed to appeal to "conservatives." They point out that the Supreme Court, by ruling against them would, significantly extend federal power under the commerce clause (the last thing "conservatives" are supposed to want to do). "If the Court upholds Petitioners’ claim of federal power, this case will supplant Wickard to become the most expansive interpretation of the Commerce Clause since the Founding, and this Court’s landmark decisions in Lopez and Morrison will become dead letters." No transaction would be too small to concern the federal government. Not even the cultivation of six plants.

FRED GARDNER can be reached at journal@ccrmg.org