The Durk Pearson & Sandy Shaw®
Life Extension NewsTM
Volume 7 No.
3 • June 2004
Good News for Medical Marijuana Patients and Constitutional Strict Constructionists
The Ninth Circuit Court of Appeals has ruled that the federal government does not have the constitutional authority to regulate or prohibit medical marijuana activities that are purely intrastate in nature. The ruling by a three-judge panel was based upon the limits of the Commerce Clause and the Fifth, Ninth, and Tenth Amendments, as well as arguments that medical necessity is a valid defense for patients facing federal prosecution. The U.S. “Justice” Department, which lost the case, then appealed for an en banc (the entire court) hearing to reconsider the ruling, but was denied unanimously.
This is a very exciting federalism decision coming unexpectedly from the liberal Ninth Circuit, where we didn’t expect much sympathy for limits on federal government powers, no matter what the Constitution says. The Justice Department may, of course, appeal to the U.S. Supreme Court, where, for good or bad (if they accept the case), the Supremes will have to consider the constitutional limits of federal powers when they apply to an outcome they may not particularly care for. If they follow the precedent of U.S. v. Lopez and a few others, federalism may become a serious hindrance to federal prosecution of the war on drugs, at least as it applies to purely intrastate activities. In the meantime, medical marijuana users in states where medical marijuana is legal and which are included within the jurisdiction of the Ninth Circuit, including California, Nevada, Alaska, Hawaii, Oregon, and Washington, are protected from federal prosecution.
We ourselves filed a medical marijuana suit in 1997 (with Jonathan Emord as our attorney) against the federal government (Case No. 1:97CV00462) in the Federal District Court of the District of Columbia, based upon the limits of the Commerce Clause and the First, Ninth, and Tenth Amendments. We lost at the district court level with a stupid decision, but we did not have and could not raise the $60,000 that we needed to appeal to the court of appeals. Our brief was an excellent one, though, and we are happy to see that some of our arguments were used by the later case that won.
- Raich v. Ashcroft, Ninth Circuit Court of Appeals, December 2003.