Pot Luck


It turns out Randy Barnett was right in predicting that the U.S. Court of Appeals for the 9th Circuit would be receptive to his argument that the medical use of marijuana is outside the scope of Congress's authority to regulate interstate commerce. Yesterday the court ruled that the Controlled Substances Act "is likely unconstitutional" as applied to Barnett's clients, two patients who use marijuana to relieve their symptoms.

One of the plaintiffs grows her own marijuana, while the other relies on friends who grow it for her. The 9th Circuit concluded that "the cultivation, possession and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity." It also noted that any impact on interstate commerce would be "attenuated." Hence it ruled that a district court judge should have granted the plaintiffs' request for a preliminary injunction barring the Justice Department from raiding or prosecuting them, since "the appellants have made a strong showing of the likelihood of success on the merits of their case."

This is the third time this year that the 9th Circuit has built upon the 1995 Supreme Court decision in United States v. Lopez to set limits on federal power under the Commerce Clause. Each ruling has been quite modest. The first involved child pornography that was never bought, sold, or exchanged; the second dealt with possession of a homemade machine gun; and yesterday's ruling is limited to noncommercial cultivation of marijuana for medical use (legal under California's Proposition 215). But taken together, these decisions help revive the idea that the Commerce Clause is not a blank check. And as Barnett notes, they show that "federalism is not just for political conservatives."

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  1. Jennifer,
    Its actually a good question. There is a federal program that administers MJ cigerettes to a handful of patients. However, its highly controlled and just a couple of patients are involved. I have always been a bit confused as to why they will do this but not allow for wider usage. Anyone else have any ideas?

  2. JSM: I worked for many years in the development of medication. During clinical trials if someone is benefiting from a drug that does not have widespread FDA approval and the drug is taken out of testing due to bad results in general, the company or governemtn are required to continue giving that drug to the study members who benefitted.

  3. Jennifer – your question is soundly based in the 9th and 10th Amendments, which were intended to make liberty the default rule and require the government to bear the burden of proof in placing limits on that liberty. These amendments were naturally too troublesome to be permitted to stand, and are (almost) universally ignored by the courts.

    The default rule now, incredibly enough, is that legislation is presumed to be Constitutional, and that anyone challenging government control of some aspect of our lives has to bear the burden of showing that the Consitution prohibits it. This is an inversion of the intention of the Founders, but there it is.

  4. “taken together, these decisions help revive the idea that the Commerce Clause is not a blank check. And as Barnett notes, they show that “federalism is not just for political conservatives.”

    That’s what we thought about free speech.

    I remain pessimistic.

  5. Jennifer A,
    I think your argument is too weak to go anywhere. (Seeing as how it hasn’t.)
    Why not this?:
    Acknowledge the First Amendment affirms that we own our minds. Why shouldn’t we agitate that the Second Amendment SHOULD HAVE BEEN that we own our bodies?
    It should be stuck in there and all the other Amendments take a one higher number.

  6. Ruthless-
    I don’t know if it’s a case of the argument being too weak to go anywhere, or just not having been tried. But I do know that a lot of well-meaning people who support the War on Drugs would be less gung-ho about a War on Pain Reduction.

    Most people who oppose drug legalization believe they are making a stand against magic, evil substances that turn people into immoral zombies, helpless to avoid killing or maiming others. In the anti-drug people’s minds, saying a person has a “right” to take marijuana is like saying they have a “right” to build and deploy nuclear weapons against their neighbors. It never occurs to most drug warriors that in many cases they are just making it harder for sick people to take medicine. Imagine the reaction if the government had to actually come out and say, “We have the right to forbid you to cure yourselves!” That would get a lot of people off the fence.

  7. So does this really mean that the 9th circuit is the most “liberal” and demon-filled in the US? 🙂

  8. Jennifer,
    I see the thinking–lack thereof–being the majority doesn’t want the minority having fun. So it’s a fine line between that and the minority feeling better.
    Do you own your own body? Notice the redundancy for emphasis?

  9. Jennifer, the rulings from the past 5-6 years state that ‘blocking access to MMJ’ would NOT create a real hindrance, as there are so many legal (read – FDA approved and sold by pharm companies) alternatives to MMJ.

    Testimony from patients who insist that MMJ is far and away where they get their best relief compared to said alternatives has been insufficient to sway the judges on that point so far.

  10. Recognizing that individuals own and control their own bodies wouldn’t cut it here.

    There is no law whatsoever prohibiting the use of any substance. The CSA prohibits possession, production, trafficking, etc… You can still eat your cake, you just can’t have it.

  11. Russ,
    You must be a lawyer.
    I guess the Second Amendment should state, “You can ‘possess’ whatever you like INSIDE your body.”

  12. Wait…
    Not good enough either.
    Oh well.
    Would Jennifer’s argument work better?

  13. Jean Bart-

    The 9th Circuit remains the focus of all evil in this world. Why? Because they only used federalism (i.e. the notion that the commerce clause isn’t a blank check) to stop the feds from interfering with private decisions.

    If they REALLY cared about federalism they’d also use federalism to let the states meddle in the affairs of individuals. Until they hand down a ruling saying that a state government can meddle in the affairs of individuals they don’t REALLY care about federalism.

    Remember, REAL federalists believe in protecting the powers of state politicians from federal meddling, not in protecting individual citizens from federal meddling.

  14. Ruthless-
    I don’t deny that one owns one’s own body, but I don’t think that is the argument that will convince the majority to vote for legalization. Even if people stop thinking that drugs turn you into criminals, there are a lot of puritanical people who would, on some gut level, be opposed to letting folks who feel fine make themselves feel better. But it’s another thing to tell people in pain, or retching from chemotherapy, that they can’t make themselves feel normal. THAT is more likely to win people over to the side of legalization.

  15. there are just even more people who honestly seem to think those above them in the food chain know what’s right for everyone.

    above all else this is the hardest sell for libertarianism, really, even above the economic aspects (which are often believed to be so occult as to be impossible to understand without a few degrees). the notion that your body is yours to do with as you wish, and to do unto other consenting adults as you wish…that’s plain near fucking impossible to sell.

    shit, i know people who do drugs who don’t believe drugs should be legal because the wrong people might do drugs and that’d be bad. paternalistic assholes!

  16. You own your own body. As long as I get a little something out of it.

  17. Jennifer A,
    Sorry, but I prefer something more dramatic than having to distinguish between pleasure and pain. (S & M?) I’m looking for life and death.
    How about all this killin’ the war on drugs causes in my ‘hood?
    Sorry, but my brain is still addled by Russ saying I can eat my cake, except I can’t have it.

    To “A Federalist,” what exactly are you looking for out of my body? Specimen? Sex? Cake?

  18. About damn time someone read the Constitution…amazing how alcohol (mostly sold through interstate commerce even pre-Prohibition) required a Constitutional Amendment to be banned from commerce and other drugs did not, though they were banned at the same time…

    Wonder what the Supremes will do.

  19. Not so surprising since the white majority would never have let some congressional goofballs ban liquor without an amedment, but banning the wacky tobaccy only affected the seasonal mexican immigrants and allowed the south and western states to round them up and deport them legally when growing season was over.

  20. Just as a possibly interesting semi-aside, when I asked my 7th grade history teacher why a Constitutional Amendment was required for Prohibition rather than just passing a law, he had no idea! He mumbled something about maybe they thought that would give them more control over enforcement and then moved on, but it obvioulsy never occurred to him that the Constitution simply never gave Congress the right to pass any damn ol’ law they pleased, and I apparently hadn’t been taught that either. And I went to a decent school, I think! (And he was a decent enough teacher as well!) Oh well…

  21. Is Randy Barnett a great Libertarian Hero or what?

  22. Excellent! Monson was busted in the small town of Oroville, CA. Population of 12,000. This small town has been ravaged by meth production and abuse, yet the DEA had time to bust Monson and destroy her massive garden of 6 plants. Its a disgrace to witness the priorities of our government.

  23. I am certain the government will find some other reason to ban the stuff, but I do have one question: have any lawyers or legal groups tried presenting the case purely in the context of pain reduction? In other words, instead of asking whether or not a person has the right to possess marijuana or opium, could someone try asking whether the government has the right to tell people in pain that they are forbidden to alleviate it?

    I admit I have no legal training, so if this question is terribly ignorant I do apologize.

  24. Ruthless,

    Relax. It’s only Hit & Run.

  25. dhex,
    Aren’t you saying the fundamental problem of ending the war on drugs is religion?
    I’ve long said that, rather than separation of church and state, church is the good cop to state’s bad cop; both on the same side.

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