Oregon State Bar Bulletin — JANUARY 2005

The Supreme Court on Dope
A balancing act between two doctrines
By Jeff Bleich & Michelle Friedland

On Nov. 29, the Supreme Court heard its second case in four years about the medical use of marijuana. In the last case, United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001), the Court unanimously found that the federal Controlled Substances Act does not have an implied exception for marijuana that is manufactured or distributed solely for medical reasons. This term’s case, however, raises a more fundamental constitutional question about how far the federal government may go in regulating drug activity at all. After decades of deferring to the federal government in regulating drug use, Ashcroft v. Raich asks the Court to choose between two hallmarks of the Rehnquist Court’s federalist jurisprudence: the principle that there are enforceable limits to Congress’s authority under the Commerce Clause, and the Court’s consistent deference to the legislative branch in waging the "war on drugs."

Ashcroft v. Raich was brought by two women who use marijuana on their physicians’ recommendation and by two anonymous caregivers who administer medicinal marijuana. The first plaintiff, Angel Raich, depends on medical marijuana to help treat her numerous medical conditions, including an inoperable brain tumor, severe nausea that leads to a wasting disorder, seizures, chronic pain, joint dysfunction syndrome and a fibroid tumor. Because Raich cannot grow her own marijuana plants, her two caregivers, who are the anonymous plaintiffs in the case, cultivate the marijuana for her. They allegedly use only soil, water, nutrients, growing equipment, supplies and lumber originating from or manufactured within California to grow the marijuana, and they provide it to Raich, who also resides in California, free of charge. Diane Monson, the fourth plaintiff, grew marijuana herself to help treat her chronic back pain and constant muscle spasms, but on Aug. 15, 2002, federal agents raided her home in Butte County, California, and seized and destroyed the six cannabis plants growing in her garden. The medical use of marijuana is legal under the California Compassionate Use Act, which, like the Oregon Medical Marijuana Act, was passed by voters as a ballot proposition.1 Despite such state laws, however, the medical use of marijuana is illegal under the federal Controlled Substances Act, which lists marijuana as a schedule I controlled substance, meaning that it has "no currently accepted medical use in treatment in the United States."

In October 2002, the plaintiffs filed suit against Attorney General John Ashcroft and former DEA Administrator Asa Hutchinson, seeking a preliminary injunction and a declaration that the Controlled Substances Act is unconstitutional to the extent it prevents them from possessing, obtaining, manufacturing or providing marijuana for medical use. They argued that growing marijuana for personal use is a wholly intrastate activity that is beyond the power of Congress to regulate under the Commerce Clause, and thus the federal drug laws are unconstitutional as applied to purely in-state medical marijuana users/providers. The district court denied their motion, but the 9th Circuit – drawing on the Supreme Court’s recent Commerce Clause cases – reversed. The 9th Circuit majority relied heavily on the Court’s four-year-old decision in U.S. v. Morrison, in which the Court found the Violence Against Women Act was an invalid exercise of federal power under the Commerce Clause. In Morrison, the Supreme Court found that the Violence Against Women Act did not regulate interstate commerce because the violence regulated by the Act was not an "economic" activity. The Ninth Circuit majority in Raich likewise held that "the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician in accordance with state law" is not "economic," that the link between the activity and any substantial effect on interstate commerce is "attenuated," and that therefore, under Morrison, the activity could not be regulated under the Commerce Clause. The Ninth Circuit dissenter, Judge C. Arlen Beam, who was sitting by designation from the Eighth Circuit, argued that the case was indistinguishable from a 1942 case, Wickard v. Filburn. In Wickard the Supreme Court upheld the federal regulation of a local wheat farmer, who cultivated his wheat solely for personal use. Wickard had reasoned that the cultivation of wheat for personal use, in the aggregate, substantially affected interstate commerce – because if we all grew our own wheat, less wheat would be purchased interstate. Judge Beam argued that like the wheat in Wickard, marijuana grown even for personal medical use is a fungible crop that could be sold in the marketplace and that would have to be purchased if not grown oneself. Accordingly, although one case involved wheat and the other case involved "weed," Judge Beam found the Ninth Circuit bound by Wickard, unless and until the Supreme Court overrules that decision.

The current Supreme Court may now have to choose between two of its distinguishing federalist principles. The first principle, reflected in Morrison, is the Rehnquist Court’s view that it must enforce limits on any effort by Congress to use its authority to regulate interstate commerce to regulate non-economic activity. Prior to the Rehnquist Court’s decision in United States v. Lopez in 1995, which found the Gun-Free School Zones Act of 1990 to be unconstitutional, the Supreme Court had not found any statute to exceed the limits of Congressional commerce power since 1937. Yet the Rehnquist Court struck down the popular Gun-Free School Zones Act in Lopez and then reinforced the limits on Congress’s interstate commerce authority by invalidating the Violence Against Women Act in Morrison. Some Court watchers believe that overruling Wickard is the natural extension of these decisions.

On the other hand, the Rehnquist Court has been extraordinarily generous to Congress (as well as any state or local government) when it comes to reviewing drug policies, rarely finding that any drug regulation, or method adopted to address drug use, is too broad or too harsh. The Supreme Court has often said that "drug abuse is one of the most serious problems confronting our society today,"2 and, in light of that, has allowed other branches of government wide authority to address the problem. The "war on drugs" has thus resulted in the explosion of drug-related incarcerations and the bloating of the American federal prison system. Prisoners sentenced for drug offenses constitute the largest group of federal inmates (55 percent in 2001). The deference to state drug laws has helped the United States to now incarcerate the highest proportion of its citizens of any nation in the world, with some 702 inmates per 100,000 U.S. residents in prison in 2002.

Indeed, sometimes the Court’s own members have ridiculed it for giving such great deference to legislative judgments about the need for drug regulations that it exercises no judicial oversight at all. For example, in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002) the Court upheld a local school district’s policy of requiring all high school students wishing to participate in extracurricular activities to submit to drug testing. Justice Ginsburg’s dissent poked fun at the majority for deferring to the school district’s claim that drug testing was necessary to ensure the safety of band members who carry heavy instruments, members of the Future Farmers of America who restrain large animals and members of the Future Homemakers of America who work with cutlery by taunting, "notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace..., the great majority of students... are engaged in activities that are not safety sensitive."

Similarly, in Chapman v. United States, 500 U.S. 453 (1991), the Court interpreted the federal statutory provision establishing sentences for the manufacture, distribution or possession of LSD to include the weight of the blotter paper or other LSD carrier, which commonly includes a large glass of orange juice, in the calculation of drug quantity. The Stevens dissent accused the majority of thereby reaching the absurd result that someone who sold one dose of LSD in a pitcher of orange juice would receive a substantially longer sentence than someone who sold one dose of LSD in a glass of orange juice. Id. at 475. At oral argument, it was suggested by the government that LSD users could still avoid more serious punishment by taking their LSD straight – such as by dropping acid directly into their eyes. In Employment Division, Department of Human Resources of Oregon v. Smith, 494 US 872 (1990), the Court held that the Free Exercise Clause did not prohibit application of Oregon drug laws to the ceremonial use of peyote and that the state therefore could deny claims for unemployment compensation to those who had been fired for work-related misconduct based on religious use of peyote. Sounding surprisingly familiar with peyote, Justice Blackmun noted in his dissent that the Court should not have been concerned that an exemption for the religious use of peyote would lead to widespread abuse because "the peyote plant is extremely bitter, and eating it is an unpleasant experience, which would tend to discourage casual or recreational use." Id. at 914.

Although it is never possible to predict what the Court will do, most Court watchers think that the Court will find that growing pot, like growing wheat, even if only for home use, is still an economic activity. Thus despite predictions that one of the current majority’s goals is to restore Commerce Clause jurisprudence to the pre-Wickard v. Filburn days, all bets are off when the Court’s jurisprudence is on dope.

Jeff Bleich is a litigation partner at Munger, Tolles & Olson in San Francisco. He clerked at the U.S. Supreme Court for Chief Justice Rehnquist in the 1990-91 term. Michelle Friedland is a litigation associate in the San Francisco office of Munger, Tolles & Olson LLP. She was a clerk to Justice Sandra Day O'Connor in 2001-02.


1. The scope of the Oregon Medical Marijuana Act would have been expanded by Measure 33 on the November 2004 ballot, but Measure 33 was defeated 58 percent to 42 percent.

2. See, e.g., Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 835 (2002); Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 904 (1990); Treasury Employees v. Von Raab, 489 U.S. 656, 674 (1989).

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