The Cannabis War

Supreme Court decides one battle, but activists vow to fight on

Steven Wishnia

Last dance with Mary Jane? (

Homegrown medical marijuana qualifies as interstate commerce, the Supreme Court ruled June 6, in the second major setback it has delivered to pot patients.

By a 6 to 3 margin, the Court refused to grant an injunction protecting California medical-marijuana users Angel McClary Raich and Diane Monson from federal prosecution. As Monson grows her own and Raich gets hers donated by another California resident, the two women had argued that their supply is neither interstate nor commerce, so the federal government does not have the right to supersede California’s law allowing medical use.

Justice John Paul Stevens, who wrote the majority opinion, acknowledged that Raich and Monson had strong arguments” for medical marijuana; Monson suffers severe back spasms, and Raich, who suffers from a host of afflictions, says she would be dead without marijuana. But the main issue in this case, he wrote, was 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.”

Personal medical-cannabis cultivation could increase the overall pot supply to the point where it would affect interstate commerce, Stevens argued, and allowing it would undermine the regulations needed to control illegal drugs and ensure the safety of legal medicines.

That logic, Justice Sandra Day O’Connor responded in dissent, would extend Commerce Clause authority to something as modest as the home cook’s herb garden.” The Court’s definition of economic activity, she wrote, is so broad that it threatens to sweep all of productive human activity into federal regulatory reach.”

In a separate dissent, Justice Clarence Thomas wrote that the federal government has the right to suppress local marijuana cultivation or use, but California could legitimately exempt medical growers and users from prosecution. The Bush administration, he added, had failed to offer any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking.”

Ironically, Thomas wrote the majority opinion in the Court’s 2001 decision, which held that since Congress has ordained that marijuana has no legitimate medical use, clinics could not claim medical necessity” as a defense against pot-selling charges.

The interstate-commerce argument, several advocates say, was a weaker case than the medical-necessity defense. I did not think that was the best argument,” says Rep. Barney Frank (D-Mass.), who has introduced a bill to bar the federal government from prosecuting medical-marijuana users in states where it is legal. It would have had very negative implications for federal power.” The Commerce Clause is the basis for numerous federal laws, from occupational-safety regulations to banning racial discrimination in hotels.

It was the liberals who did it in,” notes Allen St. Pierre of the National Organization for the Reform of Marijuana Laws. The Court’s liberal justices, he explains, were clearly sympathetic to the patients’ plight, but uncomfortable with weakening the Commerce Clause’s use.

The ruling does not invalidate medical-marijuana laws in the 11 states that have them, and most pot prosecutions are state-level. Instead, it leaves the status quo intact: Under federal law, anyone who grows or distributes pot is a felon – even if they’re giving it to a migraine sufferer who’s going to vomit if he can’t get a couple of tokes quickly.

Medical-marijuana providers have simply been defying the law with the sanction of local governments. Under John Ashcroft, the Bush administration made medical pot a top priority, going after even small-scale growers; federal agents destroyed Diane Monson’s six-plant garden in 2002. But it was embarrassed when several high-profile cases backfired. After a 2002 raid on the Wo/​Men’s Alliance for Medical Marijuana (WAMM) collective outside Santa Cruz, Calif., resulted in a confrontation between armed DEA agents and patients in wheelchairs, Santa Cruz County won a temporary injunction halting future raids. We plan to go on. People are dying. We can’t stop,” says a WAMM volunteer.

Immediately after the Raich decision, Oregon officials announced that the state would temporarily stop issuing new ID cards for pot patients, and Alaska is considering a similar move. In California, which has over 150 medical-marijuana providers, local governments have been more supportive. It really doesn’t affect us,” says Jane Weirick of the Compassion and Care Center in San Francisco, which will absolutely” keep operating.

State efforts will continue. Rhode Island’s state senate approved a medical-marijuana bill on June 7, and New York’s legislature may enact one this year. Nationally, Reps. Maurice Hinchey (D-N.Y.) and Dana Rohrabacher (R-Calif.) have introduced a budget amendment that would bar the use of federal funds to arrest, raid or prosecute patients in states where medical marijuana is legal.

I’m kind of encouraged,” says Frank. This is one issue where the more public it becomes, the better we do, though obviously we’re far from our goal.”

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