Pubdate: Fri, 23 Mar 2001
Source: WorldNetDaily (US Web)
Section: Commentary
Copyright: 2001 WorldNetDaily.com, Inc
Contact:  PO Box 409, Cave Junction, OR  97523-0409
Fax: (541) 597-1700
Website: http://www.worldnetdaily.com/
Author: Alan W. Bock

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.

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.
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MAP posted-by: Beth