Arbor Update

Ann Arbor Area Community News

Supreme Court upholds seizing of Cali. medical marijuana

6. June 2005 • Murph
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The US Supreme Court yesterday upheld the constitutionality of using the Controlled Substances Act to seize medical marijuana, even if it were grown and used locally. The case, Gonzalez v. Raich was an appeal from a circuit court ruling that had held the CSA had no validity if the marijuana was not part of “interstate commerce”.

The ruling does not strike down any of the state laws in existance legalizing medical marijuana – the CSA was in question, not the state laws – and California and other states have declared their intent to continue not prosecuting medical marijuana users. Win the War, the group raffling a pound of pot as part of a legalization campaign in Michigan, has not yet responded to a request for comment on what effect this would have on their efforts.

Some interesting quotes from the Court’s opinions – this seems to have been a more heated issue than some of the (primarily land use oriented) cases I’ve read:

Justice Stevens, writing for the majority, sounds as if he’s unhappy with the choice presented,

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.

but sticks with precedent, a 1942 case regarding wheat farming, that stated wholly intrastate sales of wheat to be part of interstate commerce by merit of being part of the same market for wheat. Personal and local growth and medical use of marijuana, similarly, is part of the same pot market as all the rest of the pot out there. Stevens states that there is a “rational basis” for holding local pot sales to have an impact on interstate pot sales, due to the general difficulty of drawing bright lines between one and the other.

Justice Scalia writes a concurring opinion that goes several steps more extreme. Not only may Congress regulate interstate commerce and intrastate commerce that might rationally be considered to possible have a substantial impact on interstate commerce, as Stevens was dealing with, but,

Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

Justice O’Conner writes the dissenting opinion, playing the calm states’ rights advocate:

We enforce the “outer limits” of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government . . . One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility 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.”

And, on the fourth hand, Justice Thomas blasts the majority:

By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents’ conduct, however, is not “necessary and proper for carrying into Execution” Congress’ restrictions on the interstate drug trade.

Any actual lawyers reading this should feel free to correct my impressions of the important points.



  1. “Personal and local growth and medical use of marijuana, similarly, is part of the same pot market as all the rest of the pot out there.”

    So there’s no difference between the legal market and the illegal market that would bear on this?
       —Steve Bean    Jun. 6 '05 - 11:14PM    #
  2. I expected a 5-4 on this, with one of the liberals coming around to state’s rights. (Maybe Kennedy or Stevens). But, in total, this ruling does reflect the deference to federal power that has characterized the more liberal members of the bench. If Ginsburg ruled that the states can effectively make their own drug policy, it’s a simple argument that the states have further latitude to make their own abortion policy.
       —js    Jun. 7 '05 - 08:16AM    #
  3. wait…i havne’t had time to check. Did Scalia write ONLY for himself or others as well? That line is huge…it may well signal an abandonment of the federalism revolution. That be nice.
       —David    Jun. 7 '05 - 12:35PM    #
  4. Scalia wrote only for himself, so his opinion is not “real” precedent; Stevens’ is. O’Conner wrote for herself, with Rehnquist and Thomas joining for “all but Part III” of her dissent, and Thomas writing his own supplementary dissent.
       —Murph    Jun. 7 '05 - 01:53PM    #
  5. Murph, don’t hold your breath for a response from Win The War (aka Bruce Ritchie aka “Z. Harris,” the sole organizer behind the campaign). He won’t even respond to attempts to contact him on behalf of Michigan NORML, the marijuana policy reform group in Michigan that, unlike Win The War, actually has dedicated, active dues-paying members (over 200), a record of success (medical marijuana initiatives passing with 60% in Detroit and 74% in Ann Arbor last year), a realistic roadmap (medical marijuana initiatives in Flint, Ferndale, and Traverse City this year), and, incidentally, whose Board of Directors I am on.

    In addition to being uncooperative and unresponsive whenever it is convenient for him, Bruce is hopelessly underfunded and probably in violation of campaign finance laws. What I find even more frustrating is that his website and tasteless “win a pound of pot” fundraiser reinforce harmful negative stereotypes, and when his campaign is ultimately unsuccessful once again (he tried last year, too, with far less fanfare and media attention), those unfortunate and naive enough to gather signatures for the effort will, in their frustration, probably be less likely to volunteer for future marijuana policy reform campaigns that actually have a shot at success.

    Regardless, this ruling will have little to no effect either on Bruce’s campaign (which will still fail) or on the Michigan NORML-sponsored campaigns in Flint, Ferndale, and Traverse City. The only time the Feds get involved is in cases of very large scale growing operations (generally, 50 plants or more), and even then, rarely. Local initiatives don’t do much to protect growers anyway, since such cases are generally referred to the state, so nothing will change in regards to the initiatives that have already passed. And with public support for medical marijuana hovering around 80%, it is unlikely that the ruling will have much effect on our ability to pass more initiatives in the future.

    The only real effect of this ruling is that Gonzalez now has the legal authority to resume prosecuting sick people who are following their state law. Whether or not he will actually do so remains to be seen, especially in light of all of the negative publicity it has brought in the past.

    More importantly, the Supreme Court ruling basically just passes the ball to Congress and all but calls on them to act, which they will have the opportunity to do in the form of the Hinchey-Rohrabacher amendment that is scheduled to come up for debate in one week (tentatively June 13-15).
       —Josh    Jun. 7 '05 - 05:28PM    #
  6. Josh, thanks for the info – I initially thought of e-mailing Michigan NORML for comment, but then figured that Win the War’s was the active campaign I knew about, and didn’t realize there was a gap between the two.
       —Murph    Jun. 7 '05 - 07:58PM    #