SUPREME COURT ON MEDICAL MARIJUANA

So many news stories didn't get the recent Supreme Court decision on
medical marijuana quite right that it is worth emphasizing the point.

The court's decision to issue a temporary stay of U.S. District Court
Judge Charles Breyer's amended injunction that would have allowed the
Oakland Cannabis Buyers' Cooperative to distribute medical marijuana to
patients who meet a tough "medical necessity" test does not invalidate
California's Proposition 215, which allows the medical use of
marijuana.

Nor does it signal that the high court is likely to invalidate the
California law or the similar laws passed by voters in other states.

The reason is simple.

Despite all the rhetoric tossed around about those laws conflicting
with federal law and federal law being supreme, none of those laws have
been challenged in court, on any grounds.

The U.S. Supreme Court cannot invalidate a state law unless it has a
case before it. California's law remains on the books as Section
11362.5 of the Health and Safety Code. It is still the law in this
state, as similar laws are still the law in other states.

The case the Supreme Court was asked to consider was brought under
federal law. The Supreme Court might eventually have to decide the
rather narrow issue of whether, under federal anti-marijuana laws, a
medical-necessity defense would allow not only the possession and use
but also the distribution of marijuana to people with serious
illnesses.

But until a court challenge against state medical marijuana laws is
filed which is unlikely because despite some talk about their having
been written sloppily they were carefully crafted not to conflict with
federal law, the Supreme Court will not have any opportunity to
invalidate those laws. And it is far from a certainty that it would do
so if given the opportunity.

Meanwhile, as Robert Raich, attorney for the Oakland cooperative, told
me, this Supreme Court decision is "a bump in the road, not the end of
the road."

It certainly highlights the cruelty of the Clinton-Gore
administration's approach to medical marijuana, suggests that the
Supreme Court rather thoughtlessly acceded to the federal government
rather than examining whether it had even a scintilla of a case and is
likely to have a chilling effect on the 35 other cooperatives in the
state.

But it doesn't stop them, nor does it affect California law in any way.

The only justice to dissent from the decision to stay the amended
injunction was Justice Stevens, who showed evidence of actually having
thought about it. "Because the applicant (the federal government) in
this case has failed to demonstrate that the denial of necessary
medicine to seriously ill and dying patients will advance the public
interest," he wrote, "or that the failure to enjoin the distribution of
such medicine will impair the orderly enforcement of federal criminal
statutes, whereas respondents have demonstrated that the entry of a
stay will cause them irreparable harm, I am persuaded that a fair
assessment of that balance favors a denial of the extraordinary relief
that the government seeks."

The government had stated without offering any proof that allowing
distribution of cannabis to patients who met a medical-necessity test
would undermine enforcement of federal drug laws. Attorneys for the
patients not only noted the harm they would suffer if denied effective
medicine, but offered statistics showing that arrests for recreational
marijuana use, at both the state and federal level, had risen since the
passage of Prop. 215, despite numerous distribution cooperatives being
in operation.

But the other seven justices -- Stephen Breyer, who is Charles Breyer's
brother, recused himself -- simply let the government have what it
wanted.

A Federal History

The Supreme Court decision arises from a civil suit
filed by federal authorities under federal law in 1998 against the
Oakland cooperative and six other northern California cannabis
cooperatives. Judge Breyer, a federal judge, in that case enjoined the
clubs against distributing cannabis as being inconsistent with federal
law, though he was careful to note that "The Court has not declared
Proposition 215 unconstitutional."

The Oakland club complied and appealed to the federal Ninth Circuit
appeals court.

That court directed Judge Breyer that under federal law medical
necessity is a "legally cognizable defense" and ordered him to rehear
the case with that in mind. He did so and modified his injunction
accordingly in July, setting forth a tough four-part test of medical
necessity that is much stricter than California law requires.

The federal government appealed, and asked the U.S. Supreme Court to
stay his injunction until the Ninth Circuit decides the appeal.

The decision to grant the stay was procedural in nature and did not
deal with the merits of the case. As both Mr. Raich and California
Attorney General Lockyer -- who was in our offices for an editorial
board meeting recently at the Orange Country Register -- agreed, it
would have been not unprecedented but still rather unusual for the
Supreme Court not to grant the request.

Lockyer did write to U.S. Attorney General Janet Reno urging the
federal government not to contest the Ninth Circuit's medical-necessity
decision.

He told me his office is conferring with attorneys general in other
Western states to see if a cooperative effort to influence the case --
whether an amicus curiae brief or some other intervention -- can be
developed.

He told me that he prefers to organize a united front among state AGs
but says his office will file in the case whether other states do so or
not.

Implementation Spotty At Best

Mr. Lockyer could have done a good deal more. He says he has told local law enforcement officials that once he
came into office the restrictive guidelines for complying with
Proposition 215 promulgated by his predecessor Dan Lungren -- which
amounted to make arrests if you have any doubts and let the courts sort
things out regardless of the inconvenience and cost imposed on patients
-- would be done away with. But he has not formally rescinded those
guidelines or put together guidelines of his own. He told me Wednesday
that he believes in local control with minimal interference from the
AG's office.

That's fine in most cases, but in practice it means patients don't know
if they can carry their medicine across county lines.

A practice recognized or even encouraged in one county can lead to
arrest and prosecution in another county.

With all due respect for localism, local law enforcement officials
might have benefited from some guidance by the attorney general when
confronted by the necessity to implement a new law most of them had
opposed and few of them understood.

Mr. Lockyer has also declined to throw his weight behind certain
efforts to get the federal law changed.

John Gettmann of Virginia has filed a petition with the feds to take
marijuana off Schedule I of the Controlled Substances Act, reserved
under the law for substances with no known medical value, a high
potential for abuse and no ability to be administered safely under
medical supervision. Obviously marijuana doesn't fit that category.

It should be taken off the schedule altogether or transferred to a
schedule that allows physicians to prescribe it.

When I mentioned Mr. Gettmann's petition to Mr. Lockyer Wednesday and
asked if he would file a brief or send a letter urging constructive
action, he said he hadn't been aware of it. I have discussed it with
his medical marijuana "point man" on several occasions.

Why wasn't Lockyer made aware that federal rescheduling which he has
said he favors was under active consideration and that a nudge from him
might help the cause?

A Supreme Decision

Besides predicting that the Supreme Court's decision
to grant the feds' request presaged an invalidation of medical
marijuana laws in California and other states -- an impossibility given
the current condition of litigation, as we have seen any number of news
stories -- suggested that it presaged a Supreme Court decision to take
the case directly rather than let the Ninth Circuit handle it and wait
for an appeal before taking it on its own.

Neither Robert Raich -- who as the Oakland cooperative's attorney might
have a somewhat biased view -- nor Bill Lockyer thought that was
likely.

Lockyer told me that the high court doesn't yet face a situation of
disagreement among federal circuits, which is what usually leads it to
expedited review.

The Ninth Circuit has made a decision and is scheduled to revisit it.
No other circuit has considered the issue.

In addition, the Supreme Court is unlikely to be eager to jump with
both feet into this controversial and politically charged issue unless
it has little choice.

Given the petition for rescheduling, for example, the entire issue of
medical necessity could become moot in the next year or so if marijuana
is rescheduled so it can be treated like other (many of them much more
dangerous) prescription drugs.

Furthermore, as I and a few others have noted, the Supreme Court seems
to be in the throes of a large-scale reconsideration of federal
government power.

A couple of years ago, in the process of invalidating the ill-
considered Gun-Free Schools Act in the Lopez case, Chief Justice
Rehnquist began his opinion thus: "We start with first principles: this
is a government of enumerated and therefore of limited powers." In that
case and in several others, the court has declared that the
Constitution's commerce clause -- the rationale since the New Deal for
massive growth in federal power -- gives Congress great power but not
unlimited power.

If and when the Oakland Cannabis case gets to the Supreme Court,
lawyers will be able to cite Mr. Rehnquist's opinion about enumerated
powers.

Article I, Section 8, of the Constitution, which enumerates the federal
government's powers, does not include authority to prohibit or even to
regulate drugs or plants.

A constitutional amendment was considered necessary to allow the
federal government to prohibit beverage alcohol.

Where is the enumerated power to prohibit marijuana?

The Supreme Court -- life tenure or no -- is not likely to want to have
to face the possible contradictions. Is it serious about trimming
federal power and reaffirming states' rights?

Or will it affirm federal supremacy in an area not included among the
enumerated powers?

Will it be consistent with its current proclivities at the price of
being accused of being "soft on drugs?" It's hard to believe it is
eager to confront such questions directly if it can avoid it.

A number of drug policy reformers have been disheartened by this
decision and most news media have read into it more than is there.

But it's not as disastrous as it seems at first blush.

The bottom line is that California's medical marijuana law remains in
place and unchallenged. Attorney General Lockyer, while he hasn't done
as much as I might like to implement it, acknowledges that his duty is
to defend what the voters enacted.

Federal law might or might not eventually acknowledge a medical-
necessity defense -- or change the way marijuana is "scheduled" under
the Controlled Substances Act. Final resolution of any of these matters
is a long way off. And the politicians might eventually notice that the
American people, every time they are polled or have an opportunity to
vote, have made it clear that they want marijuana to be available to
sick people as a medicine.