Common Sense Meets Not Self-Evident
O'Connor writes that "common sense suggests that medical marijuana users may be limited in number and that California’s Compassionate Use Act and similar state legislation may well isolate activities relating to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self-evidently substantial." Stevens writes: "The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients’ medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious."
What Stevens sees as obvious, and O'Connor calls not self-evident, is a question of fact on which the Court has no record, evidence or findings, other than the district court's wholesale adoption of the Congressional findings in the CSA. Those findings were rejected by the Ninth Circuit, not because the evidence proved otherwise, but because "Common sense indicates that the findings related to this specific class of activities would be significantly different from the findings relating to the effect of drug trafficking, generally, on interstate commerce."
The Ninth Circuit emphasized that "Morrison counsels courts to take congressional findings with a grain of salt," and that "'whether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question,' and can be settled finally only by this Court." That sounds as fundamental as Marbury v. Madison, but doesn't it presuppose that while Congress might rely on common sense, courts should require evidence?
The dissent finds that "there is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market –- or otherwise to threaten the CSA regime." The dissent distinguishes Wickard because the Court in that case was able to consider "actual effects" on interstate commerce "after reviewing in detail the picture of the industry" provided by the record. In Raich, according to the dissent, "The Government has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime."
I'd have thought that the burden on a motion for a preliminary injunction would be on the plaintiff; that the failure to consider actual effects based on a detailed record would be no less glaring if O'Connor was writing for the majority; and if "empirical doubt" isn't an oxymoron, it's surely a novel standard for the grant of extraordinary injunctive relief barring the enforcement of a federal law.
If the dissenters can be criticized for rejecting a Congressional finding because it's "not self-evident[ ]," the majority might have kept in mind that it was reviewing the grant of a preliminary injunction. What "seems obvious" is that the plaintiffs did not meet their burden of establishing a likelihood of success on the merits. But the distance between what seems obvious and what is not self-evident is what trial lawyers like to call a genuine issue of material fact. The Supreme Court should have reversed the Ninth Circuit because the plaintiffs' evidence did not establish a likelihood of success on the merits; but "seemingly obvious" isn't the standard for granting summary judgment -- not even in the Supreme Court.
Why don't we try this case. According to Plantiffs' counsel: "Here there are NO commercial activities of any kind involved, along with ZERO connection to an interstate market." I'd rather be on his side, but even the bad guys deserve a lawyer.
The plaintiffs in Raich were well-chosen. Their illnesses are real and their suffering is severe, and they might well be able to prove that their possession of marijuana involves "no commercial activities of any kind" and "zero connection to an interstate market." However, the constitutional rule plaintiffs advocate would sweep far more broadly. It would effectively allow the state-by-state reclassification of marijuana as a Schedule II drug, allowing in-state cultivation and distribution of marijuana by prescription, under any number of conceivable regulatory regimes. However, if there is any one feature that might be common to 50 different medical marijuana programs, it is the requirement of a doctor's "prescription" (more about that later). We have some experience with the effects of making recreational drugs available by prescription under Schedule II.
Prescription drugs are widely abused. According to the Council of State Governments, more than 6 million people aged 12 or older were current illicit users of prescription drugs in 2002. In 2001, prescription drug abuse and misuse were estimated to impose approximately $100 billion annually in health care costs. According to a 1999 DEA report, "about 2.4 billion prescriptions were written [in 1998], of which approximately 254 million were for controlled substances. Although the quantity which is diverted into the illicit traffic is unknown, these drugs account for over 30 percent of all reported deaths and injuries associated with drug abuse."
Unlike marijuana, prescription pharmaceutical production is centralized and controlled; the supply-chain is heavily regulated -- right up to the point-of-sale. Where's the supply that feeds the demand? Let's focus on one of the Schedule II favorites -– stimulants (Ritalin, Adderall, Concerta).
"It is only a favor thing with friends," Alice said. "I sell pills based on milligrams: $5 for two 17.5 mg. pills or $5 for three 7.5 mg. pills." You can google <Ritalin adderall campus> and get dozens of stories in school papers quoting people like Alice and her friends describing the trade in amphetamines on campus; or you can poll a classroom of college students on the illicit use of Schedule II amphetamines during exam week; or you can wade through a dense, fact-packed, footnote-flooded, cautious and understated article by a Harvard Law student who has assembled a lot of evidence in support of her conclusion: "Overprescription of stimulant drugs contributes to third-party abuse by unnecessarily inflating the number of patients with valid prescriptions available for diversion. Overprescription is the problem. Patient diversion and third-party abuse are the consequences." Through the Correct Lens: Understanding Overprescription of Stimulant Drugs, Their Abuse, and Where the Remedies Lie, Marguerite R. Lombardo (Harvard Law School, April 2004).
DEA's numbers paint the same picture: "Most experts claim that the true prevalence of ADHD in the U.S. is about three to five percent. However, ... prescription data and epidemiological studies have identified areas with almost no use of methylphenidate and communities with 10 to 20 percent or more of the student population receiving stimulants for ADHD treatment." According to the DEA, "the increased use of this substance for the treatment of ADHD has paralleled an increase in its abuse among adolescents and young adults who crush these tablets and snort the powder to get high. Abusers have little difficulty obtaining methylphenidate from classmates or friends who have been prescribed it."
Over-prescription of stimulants is enough of a problem to create a vibrant black market even though they have only very limited accepted therapeutic use -- treatment of ADD/ADHD and narcolepsy. The problem, in the words of one student, is that "all you have to do is read a book on ADHD and you know what to tell a doctor.... Now a lot of kids get it by saying they have a problem studying." Or you can run down the 27 symptoms of Adult ADD. If you're a lawyer, you can probably bank one of them -- "Tendency toward being argumentative" -- before you have to start fudging.
There is no reason to believe that marijuana would be less susceptible to overprescription, and at least three very good reasons to reach the opposite conclusion. (Overprescription is not the only cause of diversion, but marijuana is no less likely to be diverted by fraudulent prescriptions, truck heists, and robbery or burglary of pharmacies.)
First, the amphetamines, sedatives and opiates that are available by prescription are by all accounts much more dangerous than marijuana. There is every reason to believe that conscientious doctors are careful about prescribing them, not least because of their exposure to malpractice liability. Many if not all Schedule II drugs cannot be refilled. You need another prescription. But not for medical marijuana in California.
Second, the plaintiffs in Raich base their claim on marijuana's therapeutic applications for relief from nausea and appetite loss; reduction of muscle spasms; and relief from chronic pain; but those conditions do not begin to exhaust marijuana's claimed therapeutic uses, which far outnumber the therapeutic uses of prescription stimulants.
Marijuana's claimed pharmacological benefits might make it almost impossible to find someone whose health and well-being would not benefit from a reliable supply of high-quality marijuana. The anti-emitic and pain relief properties relied upon by plaintiffs suggest applications ranging from morning sickness to carpal tunnel syndrome. The American Alliance for Medical Cannabis includes anxiety disorders, depression, migraines, arthritis, inflammation, and "aversive memories" among the "common medical uses" for marijuana. According to one researcher, "physicians who routinely prescribe Vicodin, Tylox, Prozac, Paxil, Wellbutrin, Ativan, Valium, Ambien, and similar drugs ... might reasonably recommend a trial of [marijuana] instead." Other clinical studies and case reports suggest that it may be useful in treating alcoholism, menopause, bladder dysfunction, asthma, Tourette syndrome, cystic fibrosis, ulcerative colitis, sleep-related apnea, and Alzheimer's disease. There are too many claimed therapeutic uses of marijuana to list them all, but if the diversion of Ritalin and Adderall is our benchmark, we can't overlook the view of the former Director of Marijuana Research for the National Institute of Mental Health, Tod Mikuriya, MD, who claims that its potential applications include Attention Deficit Disorder.
According to Justice Thomas the California Act limits the availability of medical marijuana to “seriously ill Californians," those that "have an illness that cannabis can relieve, such as cancer, AIDS, or arthritis." But the law defines "serious medical condition" to include "any other chronic or persistent medical symptom that either ... substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 ... [or] if not alleviated, may cause serious harm to the patient's safety or physical or mental health." It took the Supreme Court to decide that carpal tunnel syndrome might or might not be covered by the ADA because its "symptoms vary widely from person to person." Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002) The availability of medical marijuana to alleviate a condition that may cause serious harm to the patient's safety or physical or mental health" provides even less guidance unless it leaves the decision, like third-term abortions, to the doctor's "best clinical judgment." Doe v. Bolton, 410 U.S. 179 (1973).
Third, the California Compassionate Use Act makes the diversion of marijuana even easier than other Schedule II drugs. A "qualified patient" need only have a doctor's "written or oral recommendation or approval." A written recommendation is much like a prescription, except you don't have to show it to anyone to buy marijuana. An oral approval might be nothing more than an unrecorded non-objection to the patient's own suggestion that he might benefit from trying marijuana for his condition. At least one California case suggests that a "qualified patient" can obtain the approval after he obtains the marijuana.
Thomas emphasizes the availability of a voluntary identification card system that immunizes legitimate users of medical marijuana from arrest and indictment, contending that it facilitates the segregation of the licit and illicit markets. However much the identity card facilitates the purchase and transportation of marijuana, it only facilitates diversion. It doesn't prevent the qualified patient from selling his supply of medical marijuana to recreational users, and going back for more. Plus, you have to prove you're entitled to an identification card, and renew it annually, to avoid arrest and indictment. After an arrest and indictment, you only need to raise a reasonable doubt as to whether you're a "qualified patient."
The basic flaw in the dissent's analysis is the assumption that medical marijuana users represent a distinguishable subset of marijuana users that can be mostly cordoned off from the larger market for recreational marijuana users; and that whatever "seepage" occurs cannot have a substantial affect on the multi-billion dollar interstate market for marijuana. However, the only differences between medical marijuana and recreational marijuana is easier access to the former and criminal liability for the latter.
Anyone caught in possession has every reason to claim that their marijuana is medical marijuana. And all they need for a complete defense is a doctor who won't disagree. O'Connor acknowledges that it is "plausible" that the California statute "might be vulnerable to exploitation by unscrupulous physicians." However, if you're charged with possession all you need is a scrupulous physician who believes that medical marijuana is a plausible treatment for depression; a sympathetic physician whose compassion trumps his scruples; a busy physician who concedes he might not remember; or a recently deceased physician who can't testify. Check the web for Medical Marijuana Doctors.
All of this would make no difference if the diversion of medical marijuana did not have a substantial affect on interstate commerce. Thomas can't see any commerce at all, emphasizing that plaintiffs "neither buy nor sell the marijuana that they consume," and that the Founders could not have contemplated "that 'commerce' included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value." The problem with that premise is that if these plaintiffs did not buy their marijuana, there are thousands of other users of medical marijuana who do. You would have to be wearing blinders, or ruling without a record, to overlook the "commerce" that is not just "substantially affected" but created by the California Compassionate Use Act.
One website, devoted to "Everything you always wanted to know about medical marijuana," lists over 100 "cannabis clubs" in California. Those cannabis clubs are shy about their prices, but they don't give away marijuana. According to an article in the San Diego City Beat, "the cost of an ounce of pot from a cannabis dispensary ($400 on average) is close to its street value." The website devoted to medical marijuana doesn't give away its ad space either. They promise "Over 1.2 Million Patient Hits Every Month" and offer "The Best Rates on the Web" starting at "Only $55." There is plenty of room for a lot of $55 ads on a 900-page website that includes, along with an article touting marijuana's curative properties for herpes, some practical advice: "Cash and Money Laundering - A Primer" ("Ok, so you’ve sold a bunch of weed. What do you do with the money?").
O'Connor insists that "everyone agrees that the marijuana at issue in this case was never in the stream of commerce, and neither were the supplies for growing it." Maybe these plaintiffs aren't very picky about their pot, but if you want a reliable supply of potent marijuana, you'll want to check out the website's listings of vendors selling indoor cultivation systems from all across the country, and marijuana seeds from all around the world ("you always have to remember that you get what you pay for. If you want $25 dollar seeds, you get $25 dollar seeds, But if your looking for good high quality genetics to grow with, you need to start looking at $100 & up on prices").
Even if the commerce at issue is wholly intrastate, that can't end the inquiry into its effect on interstate commerce. O'Connor claims that "marijuana is highly unusual among the substances subject to the CSA in that it can be cultivated without any materials that have traveled in interstate commerce." In her words, that's not self-evident. Without some evidence to the contrary, I'm willing to bet that a resourceful Californian could produce or cultivate methamphetamine, LSD, psylocibin mushrooms, or peyote, without any materials from out-of-state. In a State as large as California, with all of its natural resources, established industries, diverse climates and substantial wealth, I'm not sure that there is much at all that couldn't be produced or cultivated in California without materials that traveled in interstate commerce. Indeed, the very fact that California might support a wholly intrastate market for marijuana, almost any pharmaceutical, and even the health insurance that pays for them, only underscores the effect on interstate commerce of any wholly intrastate market of any consequence at all.
There is plainly "commerce" here. Whether it has a substantial effect on interstate commerce is open to debate. This case called for a holding that was limited to the issue before the Court, and a remand that allowed for the development of a record. That would enable the Court, as in Wickard, to consider the "actual effects" on interstate commerce "after reviewing in detail the picture of the industry" –- or industries in this case, including contraband marijuana import and distribution, pharmaceutical production and distribution, and health insurance underwriting. I'd lay money that the effects on interstate commerce would prove to be substantially beneficial, but substantial nonetheless.
What Stevens sees as obvious, and O'Connor calls not self-evident, is a question of fact on which the Court has no record, evidence or findings, other than the district court's wholesale adoption of the Congressional findings in the CSA. Those findings were rejected by the Ninth Circuit, not because the evidence proved otherwise, but because "Common sense indicates that the findings related to this specific class of activities would be significantly different from the findings relating to the effect of drug trafficking, generally, on interstate commerce."
The Ninth Circuit emphasized that "Morrison counsels courts to take congressional findings with a grain of salt," and that "'whether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question,' and can be settled finally only by this Court." That sounds as fundamental as Marbury v. Madison, but doesn't it presuppose that while Congress might rely on common sense, courts should require evidence?
The dissent finds that "there is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market –- or otherwise to threaten the CSA regime." The dissent distinguishes Wickard because the Court in that case was able to consider "actual effects" on interstate commerce "after reviewing in detail the picture of the industry" provided by the record. In Raich, according to the dissent, "The Government has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime."
I'd have thought that the burden on a motion for a preliminary injunction would be on the plaintiff; that the failure to consider actual effects based on a detailed record would be no less glaring if O'Connor was writing for the majority; and if "empirical doubt" isn't an oxymoron, it's surely a novel standard for the grant of extraordinary injunctive relief barring the enforcement of a federal law.
If the dissenters can be criticized for rejecting a Congressional finding because it's "not self-evident[ ]," the majority might have kept in mind that it was reviewing the grant of a preliminary injunction. What "seems obvious" is that the plaintiffs did not meet their burden of establishing a likelihood of success on the merits. But the distance between what seems obvious and what is not self-evident is what trial lawyers like to call a genuine issue of material fact. The Supreme Court should have reversed the Ninth Circuit because the plaintiffs' evidence did not establish a likelihood of success on the merits; but "seemingly obvious" isn't the standard for granting summary judgment -- not even in the Supreme Court.
Why don't we try this case. According to Plantiffs' counsel: "Here there are NO commercial activities of any kind involved, along with ZERO connection to an interstate market." I'd rather be on his side, but even the bad guys deserve a lawyer.
The plaintiffs in Raich were well-chosen. Their illnesses are real and their suffering is severe, and they might well be able to prove that their possession of marijuana involves "no commercial activities of any kind" and "zero connection to an interstate market." However, the constitutional rule plaintiffs advocate would sweep far more broadly. It would effectively allow the state-by-state reclassification of marijuana as a Schedule II drug, allowing in-state cultivation and distribution of marijuana by prescription, under any number of conceivable regulatory regimes. However, if there is any one feature that might be common to 50 different medical marijuana programs, it is the requirement of a doctor's "prescription" (more about that later). We have some experience with the effects of making recreational drugs available by prescription under Schedule II.
Prescription drugs are widely abused. According to the Council of State Governments, more than 6 million people aged 12 or older were current illicit users of prescription drugs in 2002. In 2001, prescription drug abuse and misuse were estimated to impose approximately $100 billion annually in health care costs. According to a 1999 DEA report, "about 2.4 billion prescriptions were written [in 1998], of which approximately 254 million were for controlled substances. Although the quantity which is diverted into the illicit traffic is unknown, these drugs account for over 30 percent of all reported deaths and injuries associated with drug abuse."
Unlike marijuana, prescription pharmaceutical production is centralized and controlled; the supply-chain is heavily regulated -- right up to the point-of-sale. Where's the supply that feeds the demand? Let's focus on one of the Schedule II favorites -– stimulants (Ritalin, Adderall, Concerta).
"It is only a favor thing with friends," Alice said. "I sell pills based on milligrams: $5 for two 17.5 mg. pills or $5 for three 7.5 mg. pills." You can google <Ritalin adderall campus> and get dozens of stories in school papers quoting people like Alice and her friends describing the trade in amphetamines on campus; or you can poll a classroom of college students on the illicit use of Schedule II amphetamines during exam week; or you can wade through a dense, fact-packed, footnote-flooded, cautious and understated article by a Harvard Law student who has assembled a lot of evidence in support of her conclusion: "Overprescription of stimulant drugs contributes to third-party abuse by unnecessarily inflating the number of patients with valid prescriptions available for diversion. Overprescription is the problem. Patient diversion and third-party abuse are the consequences." Through the Correct Lens: Understanding Overprescription of Stimulant Drugs, Their Abuse, and Where the Remedies Lie, Marguerite R. Lombardo (Harvard Law School, April 2004).
DEA's numbers paint the same picture: "Most experts claim that the true prevalence of ADHD in the U.S. is about three to five percent. However, ... prescription data and epidemiological studies have identified areas with almost no use of methylphenidate and communities with 10 to 20 percent or more of the student population receiving stimulants for ADHD treatment." According to the DEA, "the increased use of this substance for the treatment of ADHD has paralleled an increase in its abuse among adolescents and young adults who crush these tablets and snort the powder to get high. Abusers have little difficulty obtaining methylphenidate from classmates or friends who have been prescribed it."
Over-prescription of stimulants is enough of a problem to create a vibrant black market even though they have only very limited accepted therapeutic use -- treatment of ADD/ADHD and narcolepsy. The problem, in the words of one student, is that "all you have to do is read a book on ADHD and you know what to tell a doctor.... Now a lot of kids get it by saying they have a problem studying." Or you can run down the 27 symptoms of Adult ADD. If you're a lawyer, you can probably bank one of them -- "Tendency toward being argumentative" -- before you have to start fudging.
There is no reason to believe that marijuana would be less susceptible to overprescription, and at least three very good reasons to reach the opposite conclusion. (Overprescription is not the only cause of diversion, but marijuana is no less likely to be diverted by fraudulent prescriptions, truck heists, and robbery or burglary of pharmacies.)
First, the amphetamines, sedatives and opiates that are available by prescription are by all accounts much more dangerous than marijuana. There is every reason to believe that conscientious doctors are careful about prescribing them, not least because of their exposure to malpractice liability. Many if not all Schedule II drugs cannot be refilled. You need another prescription. But not for medical marijuana in California.
Second, the plaintiffs in Raich base their claim on marijuana's therapeutic applications for relief from nausea and appetite loss; reduction of muscle spasms; and relief from chronic pain; but those conditions do not begin to exhaust marijuana's claimed therapeutic uses, which far outnumber the therapeutic uses of prescription stimulants.
Marijuana's claimed pharmacological benefits might make it almost impossible to find someone whose health and well-being would not benefit from a reliable supply of high-quality marijuana. The anti-emitic and pain relief properties relied upon by plaintiffs suggest applications ranging from morning sickness to carpal tunnel syndrome. The American Alliance for Medical Cannabis includes anxiety disorders, depression, migraines, arthritis, inflammation, and "aversive memories" among the "common medical uses" for marijuana. According to one researcher, "physicians who routinely prescribe Vicodin, Tylox, Prozac, Paxil, Wellbutrin, Ativan, Valium, Ambien, and similar drugs ... might reasonably recommend a trial of [marijuana] instead." Other clinical studies and case reports suggest that it may be useful in treating alcoholism, menopause, bladder dysfunction, asthma, Tourette syndrome, cystic fibrosis, ulcerative colitis, sleep-related apnea, and Alzheimer's disease. There are too many claimed therapeutic uses of marijuana to list them all, but if the diversion of Ritalin and Adderall is our benchmark, we can't overlook the view of the former Director of Marijuana Research for the National Institute of Mental Health, Tod Mikuriya, MD, who claims that its potential applications include Attention Deficit Disorder.
According to Justice Thomas the California Act limits the availability of medical marijuana to “seriously ill Californians," those that "have an illness that cannabis can relieve, such as cancer, AIDS, or arthritis." But the law defines "serious medical condition" to include "any other chronic or persistent medical symptom that either ... substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 ... [or] if not alleviated, may cause serious harm to the patient's safety or physical or mental health." It took the Supreme Court to decide that carpal tunnel syndrome might or might not be covered by the ADA because its "symptoms vary widely from person to person." Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002) The availability of medical marijuana to alleviate a condition that may cause serious harm to the patient's safety or physical or mental health" provides even less guidance unless it leaves the decision, like third-term abortions, to the doctor's "best clinical judgment." Doe v. Bolton, 410 U.S. 179 (1973).
Third, the California Compassionate Use Act makes the diversion of marijuana even easier than other Schedule II drugs. A "qualified patient" need only have a doctor's "written or oral recommendation or approval." A written recommendation is much like a prescription, except you don't have to show it to anyone to buy marijuana. An oral approval might be nothing more than an unrecorded non-objection to the patient's own suggestion that he might benefit from trying marijuana for his condition. At least one California case suggests that a "qualified patient" can obtain the approval after he obtains the marijuana.
Thomas emphasizes the availability of a voluntary identification card system that immunizes legitimate users of medical marijuana from arrest and indictment, contending that it facilitates the segregation of the licit and illicit markets. However much the identity card facilitates the purchase and transportation of marijuana, it only facilitates diversion. It doesn't prevent the qualified patient from selling his supply of medical marijuana to recreational users, and going back for more. Plus, you have to prove you're entitled to an identification card, and renew it annually, to avoid arrest and indictment. After an arrest and indictment, you only need to raise a reasonable doubt as to whether you're a "qualified patient."
The basic flaw in the dissent's analysis is the assumption that medical marijuana users represent a distinguishable subset of marijuana users that can be mostly cordoned off from the larger market for recreational marijuana users; and that whatever "seepage" occurs cannot have a substantial affect on the multi-billion dollar interstate market for marijuana. However, the only differences between medical marijuana and recreational marijuana is easier access to the former and criminal liability for the latter.
Anyone caught in possession has every reason to claim that their marijuana is medical marijuana. And all they need for a complete defense is a doctor who won't disagree. O'Connor acknowledges that it is "plausible" that the California statute "might be vulnerable to exploitation by unscrupulous physicians." However, if you're charged with possession all you need is a scrupulous physician who believes that medical marijuana is a plausible treatment for depression; a sympathetic physician whose compassion trumps his scruples; a busy physician who concedes he might not remember; or a recently deceased physician who can't testify. Check the web for Medical Marijuana Doctors.
All of this would make no difference if the diversion of medical marijuana did not have a substantial affect on interstate commerce. Thomas can't see any commerce at all, emphasizing that plaintiffs "neither buy nor sell the marijuana that they consume," and that the Founders could not have contemplated "that 'commerce' included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value." The problem with that premise is that if these plaintiffs did not buy their marijuana, there are thousands of other users of medical marijuana who do. You would have to be wearing blinders, or ruling without a record, to overlook the "commerce" that is not just "substantially affected" but created by the California Compassionate Use Act.
One website, devoted to "Everything you always wanted to know about medical marijuana," lists over 100 "cannabis clubs" in California. Those cannabis clubs are shy about their prices, but they don't give away marijuana. According to an article in the San Diego City Beat, "the cost of an ounce of pot from a cannabis dispensary ($400 on average) is close to its street value." The website devoted to medical marijuana doesn't give away its ad space either. They promise "Over 1.2 Million Patient Hits Every Month" and offer "The Best Rates on the Web" starting at "Only $55." There is plenty of room for a lot of $55 ads on a 900-page website that includes, along with an article touting marijuana's curative properties for herpes, some practical advice: "Cash and Money Laundering - A Primer" ("Ok, so you’ve sold a bunch of weed. What do you do with the money?").
O'Connor insists that "everyone agrees that the marijuana at issue in this case was never in the stream of commerce, and neither were the supplies for growing it." Maybe these plaintiffs aren't very picky about their pot, but if you want a reliable supply of potent marijuana, you'll want to check out the website's listings of vendors selling indoor cultivation systems from all across the country, and marijuana seeds from all around the world ("you always have to remember that you get what you pay for. If you want $25 dollar seeds, you get $25 dollar seeds, But if your looking for good high quality genetics to grow with, you need to start looking at $100 & up on prices").
Even if the commerce at issue is wholly intrastate, that can't end the inquiry into its effect on interstate commerce. O'Connor claims that "marijuana is highly unusual among the substances subject to the CSA in that it can be cultivated without any materials that have traveled in interstate commerce." In her words, that's not self-evident. Without some evidence to the contrary, I'm willing to bet that a resourceful Californian could produce or cultivate methamphetamine, LSD, psylocibin mushrooms, or peyote, without any materials from out-of-state. In a State as large as California, with all of its natural resources, established industries, diverse climates and substantial wealth, I'm not sure that there is much at all that couldn't be produced or cultivated in California without materials that traveled in interstate commerce. Indeed, the very fact that California might support a wholly intrastate market for marijuana, almost any pharmaceutical, and even the health insurance that pays for them, only underscores the effect on interstate commerce of any wholly intrastate market of any consequence at all.
There is plainly "commerce" here. Whether it has a substantial effect on interstate commerce is open to debate. This case called for a holding that was limited to the issue before the Court, and a remand that allowed for the development of a record. That would enable the Court, as in Wickard, to consider the "actual effects" on interstate commerce "after reviewing in detail the picture of the industry" –- or industries in this case, including contraband marijuana import and distribution, pharmaceutical production and distribution, and health insurance underwriting. I'd lay money that the effects on interstate commerce would prove to be substantially beneficial, but substantial nonetheless.
posted by John Noble at 2:47 PM
<< Home