canorml.org

San Francisco, Sept. 17- The 9th Circuit Court of Appeals heard arguments on a key constitutional challenge by the Oakland Cannabis Buyers' Cooperative and Wo/Men's Alliance for Medical Marijuana against the federal government's efforts to suppress medical marijuana.

Attorney Randy Barnett argued that the federal government was exceeding its constitutional powers under the interstate commerce clause. Much discussion was spent on the precedent of Wickard v. Filburn, which authorized the federal government to regulate intra-state commerce, provided the activity involved was a "relevant class" affecting interstate commerce. Barnett argued that the "relevant class" here was different than in preceding cases involving general sales and distribution of marijuana, since it involved medical marijuana users. The Justices sharply questioned this line of argument, Justice Fletcher asking why homegrown marijuana was different from homegrown wheat (the issue in Wickard v Filburn), and Justice Silverman noting that the Congress specifically addressed the class of medical use by putting marijuana in Schedule I.

Attorney Gerald Uelmen addressed the issue of patients' fundamental right to relief from pain and suffering, asking "If a dying cancer patient gets relief, what interest does the federal government have in stopping him."

"We did that one," joked Justice Reinhardt, referring to the panel's previous decision in the OCBC case, which was overturned by the Supreme Court. He went on to note that the 9th Circuit had supported the right to relief from pain in suffering in an assisted suicide case, which was likewise overturned by the Supreme Court. "You want us to try again?," Reinhardt joked.

Regarding Congress' authority to regulate drugs, Justice Silverman asked the poignant question, 'Does Congress have the right to be wrong about this? That's what bothers me."

On the government's side, attorney Mark Quinlivan stressed that the Controlled Substances Act was a lawful exercise of Congress' authority. "Could Congress put insulin in Schedule One?" asked Justice Silverman. Yes, said Quinlivan, but it would be subject to regulatory protocols regarding petitions for rescheduling.

Justice Reinhardt sharply questioned Quinlivan's assertion that the court had no right to look at the class of medical marijuana users, but could only consider the class of all marijuana commerce as defined by Congress in the CSA. "Here you have a carefully regulated category," said Reinhardt, "What's wrong with looking at it?"

Quinlivan objected that states had no authority to define categories in federal law. "Well, states are winning more these days," said Reinhardt. Quinlivan went on to try to link WAMM to "commercial activity" by saying it accepted monetary contributions and sold some goods at its website. Reinhardt skeptically noted that everything involves money. Reinhardt bore in on the crucial question of whether there was a fundamental right to relief from pain and suffering. Quinlivan evaded the question by saying that this issue didn't apply,
since there was "no relevant class."

The Ninth Circuit is expected to make its decision known in its own good time (the last OCBC decision took 6 months). In the meantime, another panel is expected to hear a related appeal by Angel Raich and Diane Monson, involving the right to possess and cultivate for personal medical use, exclusive of any distribution.

- D. Gieringer, Cal NORML