This case raises the issue of whether Congress's ability to regulate interstate commerce allows it to proscribe the use of medical marijuana. The plaintiff-appellees, Angel McClary Raich and Diane Monson, suffer from "more than serious medical conditions," including, respectively, an inoperable brain tumor and a degenerative spinal disease. Under the advice of their doctors and the auspicious of California's Compassionate Use Act, they both use California-grown marijuana to treat the symptoms of their diseases. Fearing prosecution under the Controlled Substances Act, the plaintiffs sued for declaratory relief in Federal District Court where they were denied the grant of a preliminary injunction. The Ninth Circuit overturned this decision, and the case is now before the Supreme Court. The Court will determine whether the use of California-grown medical marijuana substantially effects interstate commerce based on the four-factor balancing test established in United States v. Lopez, 514 U.S. 549 (1995), and refined in United States v. Morrison, 529 U.S. 598 (2000). Though none of the factors are particularly weighty in the present case, the majority of them point to Congress' ability to regulate this activity and the Court is likely to overturn the Ninth Circuit's preliminary injunction.
Questions as Framed for the Court by the Parties
Congress enacted the Controlled Substances Act, 21 U.S.C. � 801 et seq.("CSA") as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub .L. No. 91-513, 84 Stat. 1236. The CSA establishes five "schedules" of certain drugs and other substances designated "controlled substances." 21 U.S.C. �� 802(6), 812(a). Marijuana is a schedule I controlled substance. Id. at � 812(c). For a drug or other substance to be designated a schedule I controlled substance, it must be found (1) that the substance "has a high potential for abuse"; (2) that the substance "has no currently accepted medical use in treatment in the United States"; and (3) that there is "a lack of accepted safety for use of the drug or other substance under medical supervision." Id. at � 812(b)(1). The CSA sets forth procedures by which the schedules may be modified. Id. at � 811(a). The CSA makes it unlawful to knowingly or intentionally "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance," except as provided for in the statute. 21 U.S.C. � 841(a)(1). Possession of a controlled substance, except as authorized under the CSA, is also unlawful. Id. at � 844(a).
Congress set forth certain findings and declarations in the CSA, the most relevant of which are as follows:
- (2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.
- (4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.
- (5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, is it not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.
- (6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic. 21 U.S.C. � 801.
In 1996, California voters passed Proposition 215, codified as the Compassionate Use Act of 1996 ("Compassionate Use Act"), Cal. Health & Safety Code � 11362.5. Among other purposes, the Compassionate Use Act is intended:
[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
Id. at � 11362.5(b)(1)(A).
The Compassionate Use Act is also intended "[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction." Id. at � 11362.5(b)(1)(B). To these ends, the Compassionate Use Act exempts "a patient, or [ ] a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician" from certain other California code sections that make possession or cultivation of marijuana illegal. Id. at � 11362.5(d).
Angel McClary Raich and Diane Monson are California citizens who have used marijuana as a medication for several years for severe chronic medical conditions. Raich v. Ashcroft, 352 F.3d 1222, 1225 (9th Cir. 2003). Doctors of both petitioners contend that alternative medications have been tried and are either ineffective or produce intolerable side effects. Id. Monson cultivates her own marijuana, while Raich has two caregivers provide her marijuana free of charge. Id. In growing marijuana for Raich, the caregivers allegedly use only soil, water, nutrients, growing equipment, supplies and lumber originating from or manufactured within California. Id. Although these caregivers cultivate marijuana for Raich, she processes some of the marijuana into cannabis oils, balm, and foods. Id.
On August 15, 2002, deputies from the Butte County Sheriff's Department and agents from the Drug Enforcement Agency ("DEA") came to Monson's home. Id. at 1225-26. The sheriff's deputies concluded that Monson's use of marijuana was legal under the Compassionate Use Act, Id. at 1226; however, after a three-hour standoff involving the Butte County District Attorney and the United States Attorney for the Eastern District of California, the DEA agents seized and destroyed Monson's six cannabis plants. Id.
Raich and Monson sued United States Attorney General John Ashcroft and Administrator of the DEA Asa Hutchison on October 9, 2002, seeking declaratory relief and preliminary and permanent injunctive relief. Id. They sought a declaration that the CSA is unconstitutional to the extent that it purports to prevent them from possessing, obtaining, manufacturing, or providing cannabis for medical use. Id. Raich and Monson also sought a declaration that the doctrine of medical necessity precludes enforcement of the CSA to prevent them from possessing, obtaining, or manufacturing cannabis for personal medical use. Id.
On March 5, 2003, the Northern District Court of California denied the motion for a preliminary injunction, finding that, "despite the gravity of plaintiffs' need for medical cannabis, and despite the concrete interest of California to provide it for individuals like them," they had not established the required likelihood of success on the merits. Id. at 1226. Raich et al. filed a timely notice of appeal on March 12, 2003 and the Ninth Circuit Court of Appeals held that it had jurisdiction to hear the interlocutory appeal pursuant to 28 U.S.C. � 1292(a)(1). Raich, 352 F.3d at 1226.
The Ninth Circuit held that the appellants had demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress' Commerce Clause authority. Id. at 1227. The Ninth Circuit found that none of the cases in which it had upheld the CSA on Commerce Clause grounds involved the use, possession, or cultivation of marijuana for medical purposes. Id. Although U.S. v. Visman upheld the application of the CSA to the intrastate criminal cultivation of marijuana plants found rooted in soil but intended for sale, "where the class of activities is regulated and that class is within the reach of federal power," see U.S. v. Visman, 919 F.2d 1390, 1392-93 (9th Cir. 1990), Raich et al.'s conduct constituted "a separate and distinct class of activities: the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law." Raich, 352 F.3d at 1228. Applying the Morrison four-factor "substantial effect," see U.S. v. Morrison, 529 U.S. 598 (2000), the Ninth Circuit found that the CSA is unconstitutional as applied to the instant facts.
The U.S. Solicitor General sought certiorari believing the Ninth Circuit erred in declaring that Congress cannot regulate distribution/manufacture of marijuana.
Should the United States Supreme Court find that the Commerce Clause does allow for the continuance of this prosecution, the decision would confirm the federal government's ability to control all aspects of drug production, cultivation, and distribution. The fact that the drug was prescribed for a medicinal purpose will not make a difference if the drug is classified as a schedule I controlled substance. If the Supreme Court were to find the Controlled Substances Act constitutional under the Commerce Clause, then patients suffering from a variety of ailments, from Acquired Immune Deficiency Syndrome ("AIDS") to cancer to multiple sclerosis ("MS") would be unable to cultivate marijuana at home or procure marijuana from caregivers. In the late 1990s, thirteen users had secured legal use of medical marijuana under the FDA's "Compassionate Investigational New Drug Program." Alex Kreit, The Future of Medical Marijuana: Should the States Grow Their Own? 151 U. Pa. L. Rev. 1787, 1795 (2003). While this FDA program was continued in 1992, seven of the thirteen users continue use today whereas the other six have since died. Id. The Controlled Substances Act would eliminate FDA-approved, investigational uses of marijuana for doctor-prescribed or medicinal purposes.
Ten states currently allow medicinal use of marijuana: Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon, Washington, and after this November's elections, Montana. Charisse Jones, Voters in 10 States OK Bans on Same-sex Marriage, USA Today, Nov. 3, 2004, FINAL EDITION, at 18A, available at LEXIS, News Library, USA Today. However, in 1985, the Supreme Court began to chip away at powers reserved to the states under the Constitution's Tenth Amendment. In Garcia v. San Antonio Transit Authority, the Court held that the Tenth Amendment did not shield states from valid acts of Congress under the Commerce Clause. 469 U.S. 528 (1985). Moreover, the Rehnquist Court has not been reluctant in reawakening the Commerce Clause doctrine, given its decisions in Lopez and Morrison. United States v. Lopez, 514 U.S. 549, 557 (1995); United States v. Morrison, 529 U.S. 598, 637 (2000). Should the Supreme Court find the Controlled Substances Act constitutional under the Commerce Clause, it will not be pertinent that drugs are entirely grown, processed, and distributed within one state. Notably, a decision validating the Controlled Substances Act would affect the current federal-state balance of power.
Alternatively, if the Court finds that Congress cannot proscribe the conduct under the Commerce Clause, it will limit the government's ability to enforce their drug policy. Such a decision would be a significant curtailment on federal power to regulate intrastate activities that has a potentially substantial effect on interstate commerce. Drug traffickers could strategically use the decision to evade arrest. The decision could also lead to the creation of local drug operations to attempt to avoid federal prosecution under the CSA. Several reform agendas that respond to problems of drug trafficking are currently being debated by legal scholars, such as the Constitutional Alternative, which would create a state monopoly in drug policy, and the Competitive Alternative, which would decentralize drug control policy and focus on local units of government.
To determine whether the CSA exceeds the power of Congress, the Court must determine whether the activities described in the Compassionate Use Act have an effect on interstate commerce sufficient to subject them to regulation under the Commerce Clause. This analysis is governed by two recent decisions: United States v. Lopez, 514 U.S. 549, 557 (1995), which described the categories of activity that may be regulated under the Commerce Clause, and United States v. Morrison, 529 U.S. 598, 637 (2000), which established a four-factor test governing when a regulated activity substantially affects interstate commerce.
I. Statutes Regulating Commerce or Any Sort of Economic Enterprise
The first of the Lopez-Morrison factors asks whether the statute regulates commerce or any sort of economic enterprise. The Ninth Circuit found that "the limited class of activities" presented by this case -- the "cultivation, possession, and use of marijuana for medicinal purposes" -- could not be characterized as commercial or economic activity. See Raich v. Ashcroft, 352 F.3d 1222, 1229 (9th Cir. 2003).However, at least one activity could definitely be called commerce: the sale of marijuana to caregivers. Furthermore, the Ninth Circuit erroneously analogized the use of medicinal marijuana to the use of "homegrown" child pornography discussed in United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003). Thus while the activity in question is not directly commercial or economic, this factor still supports the ability of Congress to regulate the activity.
In McCoy, the court found that a picture taken and maintained for personal use had no connection to the national, multi-million dollar commercial pornography industry. See id. at 1131. Congress could therefore not regulate the possession of child pornography that had not been mailed, shipped, or transported interstate, or that was not intended for interstate distribution or economic use. See id. at 1115. Unlike the child pornography at issue in McCoy, however, it is uncertain whether all caregivers have obtained their marijuana from within state borders. Moreover, in McCoy, the court avoided the aggregation principle by finding that a "homegrown" piece of child pornography intended for personal use was a nonfungible product. See id. at 1131. The aggregation principle states that a product intended for intrastate use nonetheless affects interstate commerce where the aggregation of "many others similarly situated" might have an inadvertent, interstate effect. See Wickard v. Filburn, 317 U.S. 111 (1942) (finding that wheat produced on a single farm, for consumption on the farm on which it was produced, can have an effect on interstate commerce when aggregated with other similarly situated producers). Here, the Ninth Circuit argued that the aggregation principle was not applicable because, like the child pornography in McCoy, the intended use of the product was intrastate and by an individual. See Raich v. Ashcroft, 352 F.3d 1222, 1231 (9th Cir. 2003). This connection is tenuous at best -- the production of marijuana much more closely resembles the production of fungible products like wheat, than it resembles the production of child pornography. The Court has a long history of finding that activity, when aggregated with the activities of other's similarly situated, affects interstate commerce. See Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264 (1981) (coal mining); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964) (motel operation); Perez v. United States, 402 U.S. 146, 150 (1971) (loan sharking).
II. Statutes Containing a Jurisdictional Hook
The second Lopez-Morrison factor protects statutes that contain an "express jurisdictional element that might limit its reach to a discrete set of cases that substantially affect interstate commerce" -- I.E., a "jurisdictional hook." See generally United States v. Lopez, 514 U.S. 549, 562 (1995). No section of the CSA supplies the jurisdictional element contemplated by Lopez. See id. Like the statute in Lopez, there is no requirement that the product in question ever entered into interstate commerce. With that said, it should be noted that the CSA is not like the statute in Morrison, where Congress "elected to cast [the statute's] remedy over a wider, and more purely intrastate, body of violent crime." See United States v. Morrison, 529 U.S. 598, 613 (2000).Here, the intent is not to regulate purely intrastate activities; instead, the statute simply fails to provide the jurisdictional hook that would prevent it from applying to both intrastate and interstate activities.
III. Statutes Containing Express Congressional Findings
The third Lopez-Morrison factor asks whether the statute or its legislative history contains express congressional findings regarding the effects of the regulated activity upon interstate commerce. Several subsections of �801 of the CSA state specific congressional findings on the effect of controlled substances on interstate commerce:
- (3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because --
- (A) after manufacture, many controlled substances are transported in interstate commerce,
- (B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and
- (C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.
- (4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.
- (5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.
- (6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.
However, as the Ninth Circuit notes, none of these findings contemplate the specific activity in question -- the use of medicinal marijuana. Raich v. Ashcroft, 352 F.3d 1222, 1232 (9th Cir. 2003).Moreover, according to Morrison, "the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation." See United States v. Morrison, 529 U.S. 598, 614 (2000). Thus, while this factor supports upholding the CSA, it does not provide strong support.
IV. Where the Link is Attenuated
The final Lopez-Morrison factor "examines whether the link between the regulated activity and a substantial effect on interstate commerce is ‘attenuated.'" See Raich v. Ashcroft, 352 F.3d 1222, 1225 (9th Cir. 2003). While the link may not be attenuated, neither is it particularly strong.
On the one hand, in 1998, Americans spent approximately $11 billion on marijuana. Executive Office of the President, Office of National Drug Control Policy, What America's Users Spend on Illegal Drugs, 1988-1998, at 1 (2000). Furthermore, marijuana is the most widely used illegal drug in the United States; of the nearly 20 million current drug users in this country, approximately 14.6 million (75 percent) are using marijuana. Substance Abuse & Mental Health Servs. Admin., 2002 National Survey on Drug Use and Health (2003). Finally, marijuana is a fungible, transferable, and therefore fundamentally economic product -- even if a particular amount of marijuana has not actually been exchanged for cash. Raich v. Ashcroft, 352 F.3d 1222, 1242 (9th Cir. 2003) ("While it is clear that plaintiffs did not propose to sell or share their marijuana with others similarly situated (or even not similarly situated), they could.") Thus marijuana is an inherently economic product, used by millions of Americans, constituting a multi-billion dollar industry -- it would be impossible to say that any industry of this size is not inherently interstate in nature.
On the other hand, it is unclear how the activities of the particular plaintiffs, or similarly situated plaintiffs, have an effect on interstate commerce. Assuming that the number of users of medical marijuana is relatively low compared to the total number of marijuana users, and that their marijuana is cultivated locally, the activities made legal by the Compassionate Use Act should have a minimal effect on interstate commerce. Several California courts have already supported this idea. See, e.g., Conant v. Walters, 309 F.3d 629, 647 (9th Cir. 2002) (Kozinski, J., concurring) ("Medical marijuana, when grown locally for personal consumption, does not have any direct or obvious effect on interstate commerce. Federal efforts to regulate it considerably blur the distinction between what is national and what is local."); County of Santa Cruz v. Ashcroft, 279 F.Supp.2d 1192, 1209 (N.D. Cal. 2003).
While none of the factors here are dispositive, or even particularly probative, the balance of their weight supports finding that the CSA is constitutional. First, the activity in question has at least one economic component and involves an aggregatable product. Second, while the statute does not contain a jurisdictional hook, its language does not grant jurisdiction to an inherently intrastate activity. Third, there are clear findings of fact, even if these must be taken with "a grain of salt." Finally, the link between the regulated activity and its effect on commerce is not attenuated, even if it is not particularly strong. Thus three of the four Lopez-Morrison factors favor a finding that the statute is constitutional.
Furthermore, the Court already provided some indication of how it would rule on the issue in United States v. Oakland Cannabis Buyers' Co-op, 532 U.S. 483 (2001). In that case, Justice Thomas noted that the CSA "reflects a determination that marijuana has no medical benefits worthy of a[ medical necessity] exception." Moreover, Congress and the DEA have found that the use of marijuana is accompanied by a high probability for abuse. David G. Evans, Drug Testing Law, Technology and Practice, � 1:9 (2004). These factors suggest that the Court would have strong ancillary reasons for finding the CSA constitutional.