Originally appearing here.
Slate has recently published an extensive commentary on how the Supreme Court is and will approach Ashcroft v. Raich. MAPS had filed an amicus curiae concerning the obstruction of efforts to conduct FDA-approved medical marijuana research.
Monday, Nov 29, 2004
By Dahlia Lithwick
If medical science conspired to construct, at the submolecular level, the world’s most sympathetic plaintiff, it could do no better than Angel McClary Raich. Raich suffers from a host of painful wasting diseases, including fibromyalgia, endometriosis, scoliosis, uterine fibroid tumors, paralysis, asthma, and rotator cuff syndrome. She has an inoperable brain tumor, seizures, and struggles to consume enough calories to live. In her brief before the Supreme Court, an affidavit from her doctor enumerates not only Raich’s staggering list of illnesses, but also the 35 alternative medicines she has tried without success. He adds that she “may suffer rapid death” if forced to stop using the marijuana she consumes (via pipe, massage oils, and quantities of pot-spiked zucchini bread) every two waking hours of the day.
Lucky for Raich, she resides in California which passed the Compassionate Use Act of 1996. Unlucky for Raich, and for her co-plaintiff, Diane Monson, California is still part of the United States, in which the federal drug laws draw no distinctions between the deathly ill and the merrily stoned. Ashcroft v. Raich pits the federal Controlled Substances Act which makes marijuana a Schedule I drug with no legitimate medical use against California’s legalization of that drug for sick people under a doctor’s care. In the simplest sense this is a states’ rights, or federalism, case. But it’s also a case full of twists and inversions, endless electric guitar solos, tie-dyed mayhem, and strange bedfellows. And that’s not just among the folks camped out on the courthouse steps for oral argument this morning many of whom were probably later rounded up and forced to pee in small cups outside John Ashcroft’s office.
Acting Solicitor General Paul Clement represents Ashcroft in this case, and he is arguing that states’ rights are a good thing, unless the state in question is one of the 10, 11, or 12 states (depending on how you count them) that have legalized medicinal marijuana. His opening comments are quickly interrupted by Justice Sandra Day O’Connor, asking whether the Supreme Court’s recent federalism rulings in United States v. Lopez (1995) and United States v. Morrison (2000) cast doubt on his case.
Before Lopez and Morrison, the Supreme Court mostly kicked back and enjoyed a lengthy period of deference to Congress’ view of the limits on its so-called “commerce clause” powers. Article 1, Section 8 of the U.S. Constitution empowers Congress to “regulate Commerce with foreign nations, and among the several states,” and starting in the late 1930s and into the ’40s interstate commerce began to include just about anything Congress wished to regulate, like employment and wages, right on up to just about any conduct save for interstate burping. The Rehnquist court put a stop to all that madness with Lopez and Morrison striking down, respectively, a federal gun law and a law creating a federal cause of action for female victims of violence as straying far beyond the commerce-clause power. Suddenly, “interstate” and “commerce” were words with meaning again.
Clement tells O’Connor that those federalism cases can be distinguished from the marijuana one, but O’Connor shoots back with a question about , the classic commerce-clause case from 1942. Wickard involved a farmer who owned a family dairy farm and exceeded the annual wheat quota then allowed by the federal government. The farmer argued that his wheat was for his own consumption and that Congress had exceeded its commerce-clause powers in setting quotas. The Supreme Court disagreed. O’Connor points out that the wheat grown in Wickard entered a national market. Whereas pot grown on a windowsill by dying women or their caregivers does not. Or, to quote Ruth Bader Ginsburg: “Nobody’s buying anything. Nobody’s selling anything.”
Clement responds that it’s impossible to know which pot is grown by individuals and which comes from illegal markets. O’Connor, still bogarting the oral argument, insists that the state of California can be trusted to enforce its own drug laws and crack down on illegal markets. Clement retorts, “There’s no reason to believe California will have some unnatural ability to keep only one part of a fungible market separate.”
Justice Antonin Scalia is in something of a tight spot today. One the one hand, he voted with the states’-rights majorities in Lopez and Morrison. On the other hand, he isn’t going to go off tripping lightly to the land of Cheech and Chong with those loonies on the 9th Circuit (who ruled the federal drug laws unconstitutional as applied to Raich and Monson). So he toys with Clement, suggesting that the rationale in Wickard doesn’t really apply here. In Wickard, Congress wanted to regulate all interstate commerce in wheat. In this case, Congress wants to stop all interstate drug trafficking. Justice John Paul Stevens is in a mirror image of that same tight spot. He frickin’ hates Lopez and Morrison. But his sweet old heart bleeds for the folks who would die if their pot was taken away.
Justice Anthony Kennedy asks if this case is easier or harder than Wickard, given that the buying and selling of wheat is lawful, whereas the mere possession of pot is not. Clement replies that this is an easier case. If Congress can prohibit something from interstate commerce altogether, it should be able to “excise out any small island of unlawful possession that would compromise its goals.”
Ginsburg asks whether there would be any lawful recourse if these two particular plaintiffs were prosecuted under the federal drug laws. Clement quite cheerfully points out that in the 2001 medicinal marijuana case, United States v. Oakland Cannabis Buyers’ Cooperative, the court held 8-0 that there was no implied medical necessity exception to the federal drug statutes. So no, these women would pretty much have to suffer, die, or move to Amsterdam.
Kennedy asks, in what sounds suspiciously like his pre-Christmas shopping voice: “If we rule for the respondents in this case, do you think the street price of marijuana would go up or down?” And Stevens asks whether the court is bound by Congress’ findings that there is no medical use for marijuana or could follow some other entity’s findings (say, the Institute of Medicine’s 1999 study finding that marijuana holds promise for alleviating nausea and vomiting in people undergoing chemotherapy and shows potential for improving severe weight loss caused by AIDS). Clement replies that it’s as easy as petitioning Congress to reclassify marijuana as a non-dangerous drug. He adds, amazingly, that Congress considers marijuana nonmedicinal “because smoking is harmful.”
Professor Randy Barnett represents Raich and Monson. But this doesn’t keep the liberal justices from beating up on him for curtailing congressional power while the conservatives beat up on his doper clients. Barnett warns that if the court finds for Ashcroft, this case will come to “replace Wickard as the most far-reaching case of interstate regulation.” He adds that just because some product may have an interstate market (and what really doesn’t, aside from phlegm, perhaps?) can’t mean its possession implicates interstate commerce. Scalia notes that mere possession of ivory tusks or eagle feathers is illegal regardless of what market they come from.
Barnett says there is no market if the marijuana is entirely isolated and policed by the state of California. “Isolated?” cries Scalia. “I understand some communes grow marijuana for medical usage!” Everything inside him recoils in horror. Federalism be damned.
Justice Stephen Breyer tries to generate a list of really dangerous items that can be grown privately, in which the feds may still maintain a regulatory interest. He comes up with “heroin, cocaine,” and “tomatoes with genomes in them”the ones who may someday have dangerous “tomato children.” And Justice David Souterwho clearly has never been high on anything stronger than yogurt says it’s clear that most Californians will go out and buy their medical marijuana “on the street.” That would mean tens of thousands of Californians on chemotherapy and many more recreational users pretending to be. He adds, “every kid buying a bag or whatever you’d call a small quantity … they’re not getting prosecuted.”
Scalia insists this case can’t be distinguished from Wickard. Barnett says this would be like Wickard if the farmer was eating all the wheat he grew, as opposed to feeding it to his livestock and replanting itactivities that implicate interstate commerce. Breyer disagrees: Wickard said a farmer’s consumption of homegrown wheat, “though not commerce, may still be regulated so long as there’s an interstate effect on commerce. I take it Justice Scalia is exactly right.” Never comforting words for an oral advocate.
Breyer concludes with the suggestion that the plaintiffs in this case should have gone to the FDA and said “take marijuana off the list … that would be the obvious way to get what they want.” He adds, “Medicine by regulation is better than medicine by referendum.” Catchy. Barnett urges him to read the amicus briefs describing government obstruction of even basic cannabis research.
Clement concludes his rebuttal with his best argument: California law undermines enforcement of the entire federal drug regime. There is no way to distinguish between those in genuine medical need and those who are exploiting the system. He cites a case mentioned in the briefs in which a man was busted with pot in his backpack, his pocket, his other pocket, and another pocket. And some scales. The appellate court nevertheless found that he might have legitimately been buying the pot for medicinal reasons; he was just carrying the scales to “keep from being ripped off.”
In a tribute to the chief justice, who missed oral argument again today, Angel Raich sought to woo him with empathy saying she hoped his chemotherapy treatments “would soften his heart about the issue.”
“I think he would find that cannabis would help him a lot,” said Raich. Can’t you just imagine it: William H. Rehnquist spooning Cheez Whiz right out of the jar and sewing gold armbands onto all his bathrobes?
Are these women just a little weird? Yes. But should the court’s staunchest conservatives get away with being for states’ rights only when the state in question isn’t California? No. Will they? Oh, you can bet your bong on it.
Dahlia Lithwick is a Slate senior editor.
Illustration by Mark Alan Stamaty.