June 28, 2004

The medical marijuana case.

The Supreme Court took cert. in Raich v. Ashcroft, the 9th Circuit medical marijuana case. Can Congress use the commerce power to criminalize the noncommercial cultivation and possession of marijuana? Many persons have gone to prison for violating the Controlled Substances Act. It is hard to believe that, in general, the Court is going to say that only the states can regulate homegrown, home-consumed marijuana. But what about this more limited category of homegrowers: those who use marijuana pursuant to California's Compassionate Use Act?

Is there a way to segment off this group of homegrowers and place them outside of Congress's reach, while still leaving recreational homegrowers subject to the federal law? To some extent the commerce power depends on whether the regulated activity is commercial, but if anything, medical marijuana is more commercial than recreational marijuana: doctors have a key role under California's Compassionate Use Act in creating the state law entitlement to use marijuana and certainly the practice of medicine is a commercial enterprise. So how can you set medical marijuana outside of Congress's reach without having also to leave recreational homegrown marijuana to the states?

The 9th Circuit solved that problem by characterizing the homegrown medical use as separate from the commercial market in marijuana, both "the broader illicit drug market -- as well as any broader commercial market for medicinal marijuana." The idea is that a home-growing, recreational user could quite easily turn to selling his crop, and the need to control the market justifies reaching him, but the home-growing medical user does not pose a similar risk, so Congress cannot similarly justify looping the medical patient into the large federal scheme to control the sale of marijuana. A key precedent involves a farmer who grew more than his allotment of wheat, but planned to use the wheat on his farm and not sell it. The Court saw the wheat as "overhang[ing] the market": the farmer might change his plan and sell the wheat. Thus, Congress, pursuant to a plan to control supply in the wheat market, could also regulate the home-consumed wheat. Similarly, the Controlled Substances Act means to control the market in marijuana, and people who claim their crop is for home use might turn around and sell it, so controlling their production is a legitimate part of controlling the market. Will the Court say the medical users' supply does not overhang the market? Arguably, these users are off in a different sphere of life where they are not tempted to become dealers.

Surely, we feel much more sympathetic to the seriously ill person who wants to use marijuana for medicinal person that for the ordinary person who simply wants to enjoy himself, but why should that difference affect the relative power of Congress and the states? We might say that the Compassionate Use Act is a particularly worthy or useful policy experiment taking place at the state level, but do we want the scope of Congress's power to depend on a judicial assessment of the value of the state's policy? I'm inclined to think that if the recreational home-growing home-user is subject to the Controlled Substances Act, so is the home-growing home-user with a medicinal purpose. As a matter of pragmatism, it is too late to say the recreational user cannot be reached, so the challenge will be to find a way to distinguish between these two motivations for using marijuana in terms that somehow express something about commerce. That should be hard to do, but the 9th Circuit has put a theory in writing that the majority of the Justices may decide to adopt.

A similar case that may makes its way to the Court is Oregon v. Ashcroft, another 9th Circuit case about the Controlled Substances Act and federalism, dealing specifically with Oregon's Death With Dignity Act. I describe and discuss that case here and here.

ADDITIONAL POINT: I do realize that in the wheat farmer precedent linked above (Wickard) that the Court also noted that the home-grown wheat supplied a need that the farmer would have otherwise needed to enter the market to meet, but the point I've noted plays an equally important role in the Court's reasoning. This additional point is also relevant to the medical marijuana problem, though I omitted it in my original discussion for the sake of brevity. A person who uses home-grown marijuana for medicinal purposes is serving a need that he or she would otherwise have enter the market to meet. Either this person would buy marijuana (the fact that the market is illegal is irrelevant constitutionally) or would buy the synthetic marijuana substitute Marinol or would buy some other product for pain relief. So home-grown, home-consumed marijuana has a substantial effect on interstate commerce just like the home-grown, home-consumed wheat in Wickard. The key difference is the commercial/noncommercial distinction developed in the recent commerce clause cases (Lopez and Morrison). The farm in Wickard was a commercial enterprise and the medical marijuana patient is not engaged in a commercial enterprise. But if that is the reason for denying Congress power, than the home-growing recreational consumer must also be free of federal regulation. My point is: how do you distinguish Wickard for the medical purpose and not for the recreational purpose? The only answer I've seen is the one given by the 9th Circuit.

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