All Power to the Federal Government

In a six-to-three vote announced June 6, the U.S. Supreme Court has denied Angel Raich and Diane Monson the right -established by California voters in 1996- to obtain and use marijuana for medical purposes. Phony Tony awards go to Antonin Scalia and Anthony Kennedy, two of the five justices who advocate limits on federal power but in this case made a War-on-Drugs exception to their “principles.” John Paul Stevens, who wrote the majority opinion, was joined by Kennedy, David Souter, Ruth Bader Ginsburg, and Steven Breyer. Scalia wrote a concurring opinion trying to justify his switcheroo. Kennedy didn’t feel he owed the public an explanation.

Sandra Day O’Connor’s dissent was joined by Chief Justice William Rehnquist, and Clarence Thomas, staying true to their states-rights line. Thomas wrote an eloquent separate dissent.

Raich and Monson are California medical marijuana users who in October, 2002 sought to enjoin the DEA from confiscating their marijuana and raiding their suppliers. They argued, among other things, that the feds had no jurisdiction to enforce the Controlled Substances Act against them because their activities don’t affect interstate commerce. After failing to get an injunction from a federal District Judge, they appealed to the Ninth Circuit Court of Appeal, which ordered that the injunction be granted. The Bush Administration appealed to the U.S. Supreme Court, which heard arguments in November ’04. The case started out as Raich et al v. Ashcroft et al but goes down in the books as Gonzales et al v. Raich et al.

Regulating the noncommercial cultivation and use of marijuana in California “is squarely within Congress’s commerce power,” Stevens wrote for the majority. Previous cases, notably Wickard v. Filburn, had established “Congress’s power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.” Some of Stevens’s opinion seems apologetic in tone. “The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case.”

Stevens recounts the futile efforts to remove marijuana from Schedule 1 (dangerous drugs with no medical use). “After some fleeting success in 1988 when an Administrative Law Judge declared that the DEA would be acting in an ‘unreasonable arbitrary, and capricious’ manner if it continued to deny marijuana access to seriously ill patients, and concluded that it should be reclassified as a Schedule III substance, the campaign has proved unsuccessful. The DEA Administrator did not endorse the ALJ’s finding, and since that time has routinely denied petitions to reschedule the drug. The Court of Appeals for the District of Columbia circuit has reviewed the petition to reschedule marijuana on five separate occasions over the course of 30 years, ultimately upholding the Administrator’s final order.”

Stevens concludes by noting that Raich and Monson can appeal again to the Ninth Circuit with their due-process and medical-necessity arguments, which were not considered previously. They can also seek to have marijuana rescheduled by the DEA and/or avail themselves of “the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.”

Boalt Hall professor Robert Berring says Stevens’s decision is “in the fine tradition of ‘we are sorry that this is not the right thing to do, but we are bound by the law to harm you.’ The tone is so patrician and unrealistic. It does have a fine timeline history of drug policy in this country which shows it for the great muddle that it is. Suggesting that the plaintiffs should use the democratic process to address their problem is ridiculous since they HAVE used it in California. He also uses the straw-man assertion that maybe marijuana should be removed from Schedule 1. Well, yes, but tell that to the FDA not to Ms. Raich. I also love the way that they drag out an old chestnut like Wickard v. Filburn, a case about the wheat market in the depression, and say that it is squarely on point. It makes no sense. This is the kind of opinion that I can appreciate for its cranky weirdness except for the fact that it truly harms people. Who would have thought that I would look to Justice Thomas for solace?”

Professor Berring must have missed Pebbles Trippet’s recent Anderson Valley Advertiser column, “Clarence Thomas is our Hope.” Her prediction was fulfilled by Thomas’s bluntly worded dissent. “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything,” he wrote, “and the Federal Government is no longer one of limited and enumerated powers… In the early days of the republic it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.”

O’Connor’s dissent repeated Justice Brandeis’s famous line that ‘a single courageous State may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.’ This case exemplifies the role of States as laboratories.” O’Connor concluded, “If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our commerce clause cases require that room for experiment be protected in this case.”

Attorney Robert Raich says he was most surprised that “Stevens, who I thought would be our biggest supporter, ended up authoring this negative opinion and Rehnquist, who I thought would be our biggest opponent, ended up joining this terrific opinion by O’Connor… Stevens had commented about the issue of federalism in his concurrence in the Oakland Cannabis Buyers’ Cooperative case. He should have ruled for us on that basis. It is inexplicable why that analysis is missing from his opinion.” Stevens’s hypocrisy is exposed by Thomas, who quotes his comment in the OCBC case (May, 2001): “The majority’s rush to embrace federal power ‘is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union.'”

Raich says that Stevens “still could have let the federal government regulate all those other issues he cares about -the endangered species act, the clean water act- under the commerce clause, except when you have an actual case where a state weighs in with a specific challenge. And those would be dealt with case by case. If you had a state trying to ban abortion or re-impose segregation they would be overridden because a state can’t infringe on the right to privacy or violate the equal protection clause. If a state says, ‘We don’t care about tailpipe emissions, we’re not going to regulate factories.’ Well, factories and automobiles actually are engaged in interstate commerce. So a state that tried to get out of clean-air laws would still be validly overridden by federal law under the commerce clause.”

Attorney Bill Panzer was appalled by Scalia’s opinion. “He seems to be saying Congress can do anything it wants under the ‘necessary and proper’ clause. If they have the right to regulate interstate commerce, they can regulate it any way that they want. They don’t even have to show that what they’re regulating has any substantial effect on interstate commerce… He’s changed ‘necessary and proper’ to ‘imagination and whim.’ If congress can imagine that it’ll help, they can do it. Scalia, supposedly the strict constructionist, is giving Congress incredible powers.” A well-placed Washington source thinks Scalia was never sincere about federalism, that he adopted Rehnquist’s line for tactical reasons, but now he’s coming out for an all-powerful federal government (under the control of his duck-hunting buddy, Dick Chaney). Panzer has a simpler analysis. “I think it’s more like: ‘It’s drugs, they can do anything they want.'”

Pebbles Trippet of the Medical Marijuana Patients Union would like to see “a new federal challenge, focusing on a full spectrum of constitutional violations broader than the commerce clause and states rights… We need to decide whether there is a compelling federal interest to outweigh the patient’s under the Due Process Clause; whether the CSA’s penalties are cruel and unusual punishment as applied to cannabis for medical use; and whether there is a rational basis for discriminating against medical cannabis compared to other medical treatments.”
Ten Clubs Closed

Two chains of cannabis dispensaries shut down “voluntarily” the day the Raich decision was announced: Compassionate Caregivers, with seven locations (Oakland, San Francisco, Bakersfield, San Diego, Ukiah, San Leandro, Long Beach) and United Medical Caregivers Clinics, with two (Ukiah and West Hollywood). According to attorney Lenore Schefman, Compassionate Caregivers had been contemplating such a move since May 6, when their West Hollywood club, widely known as “The Yellow House,” was raided by the LAPD and IRS. Thirteen employees and one customer were arrested. The authorities reportedly seized 800 pounds of marijuana and $300,000 in cash. A police spokesperson told the West Hollywood News, “They regularly sold 8 ounce and one pound quantities to people who made sometimes daily buys. There were an average of 235 visits a day to the house. That’s drug dealing, not medicine dispensing.” Bruce Margolin, who is representing the employees, says they were performing a legal public service.

Krystic, who had made his living for many years running a gambling operation in Alaska, saw California’s medical marijuana law as a commercial opportunity and did not pretend otherwise when I interviewed him in at his brand new West Hollywood club in February ’04. (He had signed a seven-year lease on a yellow house on La Brea Ave. that Charlie Chaplin once used as an office.) Although Krystic had no personal affinity for marijuana, he hired managers and purchasing agents who did. His clubs, starting with “The Third Floor” on Telegraph Ave. in Oakland, were known for always having a wide selection of strains, clones, and edibles. In addition to hiring Margolin to represent his employees and Schefman to be his spokesperson, Krystic has now retained a specialist to deal with the IRS if he gets prosecuted for tax evasion or money laundering.

Many established club proprietors resented competition from Krystic. Whereas they were in it for the cause, they said, he was in it for the money (echoing Dennis Peron’s attitude towards them). Attorney Bill Panzer speculates, “I guess Larry’s game plan is to already be on a beach in South America.” Schefman, who notified Compassionate Caregivers’s 250 employees not to come to work Monday, June 6, says Krystic will be available for an interview by June 15.

On June 8 San Bernardino sheriffs busted California Alternative Caregivers Christian Alliance in Big Bear Lake, the only cannabis club in the county. Dale Gieringer of California NORML reports, “They sent in a sheriff’s deputy with a recommendation to buy MJ, then arrested the proprietor for sales. Assistant DA James Hosking has stated that the county regards sale of medical marijuana to be illegal, while recognizing that cooperative gardens are allowed under the law. Reports are that sheriffs deputies had been watching the dispensary the previous day, stopping customers as they left and taking their medicine.”

The club closures notwithstanding, media coverage of the Raich decision in California has emphasized that Prop 215 remains in effect. The pro-cannabis doctors didn’t report any fall off in patients seeking appointments, nor did sales at dispensaries decline -in contrast to May, 2001, when the headlines announced the Supreme Court’s 9-0 ruling against the Oakland CBC. The Raich ruling, at 6-3, is a less definitive defeat and represents a shift in momentum. Attorney General Bill Lockyer issued a strong reassertion of state law, which may or may not be heeded by those under him. Montana’s attorney general, Mike McGrath, also defended his state’s marijuana law, which was enacted by popular iniative in November, 2004. McGrath a Democrat who recognizes how strongly the people of Montana favor medical marijuana (62-38), challenged the Bush Administration to crack down.

Officials in other states haven’t stood up for their constituents. Administrators of the Oregon medical marijuana program stopped processing new applications until the state attorney general could weigh in with an opinion on the ramifications of Raich. In Hawaii, U.S. Attorney Ed Kubo released the following statement: “The U.S. Supreme Court decision this morning is the death knell to the medical marijuana issue. I would advise all physicians and anyone who is involved in distributing or helping in the distribution of any illegal narcotic to be very, very leery.” Kubo seemed unaware that the 9th Circuit’s Conant v. Walters ruling, which the U.S. Supreme Court chose not to review, establishes the unambiguous right of doctors and patients to discuss cannabis as a treatment option under the First Amendment. Angel and Robert Raich are heading to Washington, where Congress is about to debate an amendment to an appropriations bill that would compel the feds to honor state medical marijuana laws. Last year the same amendment was introduced by Rep. Maurice Hinchey and garnered 148 votes (to 268). Now Hinchey is saying he hopes to “get a few votes more.” Why not aspire to win? Three-quarters of the American people think marijuana should be legalized for medical use. An insider says that Hinchey is “trying to lower expectations” at the urging of p.r. experts. Don’t they know about the bandwagon effect? Just how slick do they think they are?

Bill Panzer on the Raich ruling

We asked Oakland defense specialist Bill Panzer, “In the wake of the Raich decision, what are you telling your clients?”

I’m telling them that from a legal standpoint, this really doesn’t change anything. I don’t think Raich in any way would have legitimized dispensaries. However, from a practical standpoint, there could be some kind of backlash because of a misreading of it. For example, the prosecutor in Hawaii put out a press release. It’s like, “Hey, dude, did you ever hear of Conant v. Walters?” The Raich decision has nothing to do with doctors, but this is the typical thing.

I do expect that there are going to be some raids, but I think their new tack is going to be financial. I believe the IRS was involved in the shutdown of Compassionate Caregivers, and CHAMP is being audited. They could say, “Okay, fine, you’re paying taxes, but you deducted the cost of purchasing the cannabis and you can’t do that because it’s against public policy.” Somebody may have to raise the question, “How do you define ‘public policy?'” What the public votes and wants, or what Washington is trying to shove down their throat? The Supreme Court says: with respect to pornography, it’s local community standards.

You’re anticipating an argument to the IRS down the road.

Yes. “My community voted for this public policy.”

What happens if a popular, well-respected club gets raided and closed by the DEA. Will they get a jury trial?

The question is whether the jury ever hears any of this stuff. How they go after clubs really depends. Whether or not the club is selling clones [starter plants] makes a huge difference, the reason being: the five-year mandatory minimum kicks in at 100 plants or 100 kilos [a kilo =2.2 lbs]. A plant is defined as having leaves, stem, and any root structure; so most clones are plants. If a dispensary is selling clones, the chances are pretty good that they’ll have 100 on hand. If they’re not dealing clones, the chances that they’ll be caught with 100 kilos are pretty slim. Other than Compassionate Caregivers, I can’t imagine any club would have 100 kilos lying around. My experience with the feds is if they can’t get at least the five-year sentence, they’re not going to take the case. So, most of these dispensaries, as long as they’re not dealing clones, will not be facing a great risk from federal prosecution. What’s more likely is that the feds come in, take everything, and then don’t prosecute. That may be one of the reasons we’re hearing about the IRS getting involved. Because tax evasion is something you can prosecute on, or at least hit them with a big tax levy.

DEA agents in San Diego and San Francisco have said they won’t be going after individual patients. Do you take those reassurances at face value?

I was glad to hear those statements. In the Osburn case, which is being appealed, I came up with a straight necessity defense. Here’s how it goes. California says “We’re going to let patients use cannabis. It’s legal here. The feds are saying “We’re not interested in going after patients, we’ve never gone after patients.” That’s their policy, that’s their deed. So, there is a discrete group of people who are going to use marijuana and no one’s going to stop them. They’ve got to get it from somewhere. If they get it from the black market, what does the federal government tell us they’re doing? Supporting terrorists! Remember those commercials during the Super Bowl? “I smoked a joint and killed a family in Colombia.” They’re telling us the black market directly helps the terrorists and there’s imminent danger from the terrorists. So, to protect America, I have to supply the marijuana so that Al Qaeda doesn’t get the money and crash a plane into my house tomorrow.

Is this a serious defense or a stand-up comedy routine?

When you bring a necessity defense, one of the elements is you have to show that there was imminent danger or that your belief in imminent danger was reasonable. The weak point in the defense is buying a lid on the black market is not really going to cause Al Qaeda to crash a plane into my house tomorrow. But the government is telling me that’s going to happen. So the government would have to argue, “It’s not reasonable to believe us. Everybody knows we’re bullshitting.”

FRED GARDNER can be reached at


















Fred Gardner is the managing editor of O’Shaughnessy’s. He can be reached at