Naked City

Medical marijuana supporters claimed a major legal victory on Dec. 16, when a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that the federal government has no constitutional right to raid or seize marijuana from patients using the drug on advice of a physician and in compliance with state law.

In the case Raich v. Ashcroft, the San Francisco-based court opined that agents with the Drug Enforcement Administration likely violated the constitutional rights of two seriously ill California patients when they seized the pot plants the patients use for medicinal purposes. Lawyers from the U.S. Department of Justice argued that marijuana is an illegal substance under the Controlled Substances Act, a law that they enforce under the Constitution's Commerce Clause, which gives the government the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

One of the Raich plaintiffs grows her own marijuana; the other has it grown for her by two caregivers. Neither of them pays money for the drug and neither cultivates the dope using any products acquired from outside California. Therefore, they argued, the federal government's seizure was an unconstitutional application of the Commerce Clause that violated the state's Compassionate Use Act. The two patients seek an injunction against the government, which would forbid them from future seizures.

A lower court denied that request: "[D]espite the gravity of the plaintiff's need for medical cannabis, and despite the concrete interest of California to provide it for individuals like them," the court ruled that the plaintiffs had not offered enough evidence that they would be likely to win a permanent injunction "on the merits" of their claim. The 9th Circuit disagreed, remanding the case to district court and granting the plaintiffs' injunction -- a move that also forbids federal law enforcers from similar seizures in any of the other six Western states covered by the 9th Circuit that have medical marijuana laws on the books.

In its ruling, the court found that the plaintiffs' marijuana use forms a distinct "class of activities" that "does not involve sale, exchange, or distribution" of marijuana. As such, the two-judge majority opined that "[l]acking sale, exchange or distribution," the plaintiffs activities do not "possess the essential elements of commerce" needed to allow the federal government to exercise power over them under the Commerce Clause. The judges agreed with the government that the personal cultivation of marijuana might have some effect on commerce, but not necessarily a negative one, as lawyers for Attorney General John Ashcroft had argued. In contrast, the justices wrote that personal cultivation might actually reduce "the demand for marijuana that is trafficked interstate."