LAW PROF TO SUPREME COURT - FEDERAL GOVERNMENT, BUTT OUT OF MEDICAL MARIJUANA

Randy Barnett last week stood before a panel of "justices" inside a replica of the U.S.  Supreme Court.  The simulation was staged at Georgetown University's moot courtroom, which is designed to help lawyers acclimate to the intimate setting of the Supreme Court while honing their arguments in preparation for a real hearing.  The justices, a panel of Georgetown professors and lawyers, peppered Barnett with questions about the Constitution as it applies to medical marijuana. 

Barnett, Austin B.  Fletcher Professor of Law at the School of Law, has two more moot courts before November 29, when the Supreme Court will hear his argument that it is unconstitutional for the federal government to prosecute patients who grow and use marijuana for medical purposes in California. 

The high-profile case centers on whether the federal government has the power to prosecute these patients in a state with a law permitting the cultivation and use of cannabis with a physician's consent. 

During the past three years the federal Drug Enforcement Agency ( DEA ) has been cracking down on marijuana use in California, raiding the homes and gardens of medical marijuana patients, destroying homegrown cannabis, and prosecuting individual patients. 

The DEA cites the federal Controlled Substances Act ( CSA ) of 1970, a statute based on the commerce clause of the Constitution, which grants the federal government authority to intervene in activities involving or affecting commerce between states. 

All "illicit drug traffic" affects interstate commerce, according to the Justice Department, because it increases demand for drugs and because drugs sold across state lines are difficult to trace to their origins. 

In 2002, Barnett and two attorneys brought a lawsuit in the Ninth Circuit Court in San Francisco on behalf of two patients, Angel McClary Raich and Diane Monson.  Monson had had her medical cannabis destroyed by DEA officials. 

Raich, who uses cannabis to treat pain, nausea, and seizures associated with a brain tumor and a wasting syndrome, obtained her marijuana locally and without charge from anonymous caregivers, and Monson, who takes marijuana to relieve severe back pain and spasms caused by degenerative spine disease, grew her own cannabis. 

They asked for an injunction against U.S.  Attorney General John Ashcroft and the DEA, claiming that their homegrown marijuana neither comes from nor enters the commercial market, does not cross state lines, and does not substantially affect interstate commerce. 

In a historic ruling last December, the Ninth Circuit Court held that the noncommercial use, possession, and cultivation of medical cannabis is fundamentally different from "drug trafficking."

In Ashcroft v.  Raich, the Bush administration is appealing the Ninth Circuit Court ruling to the Supreme Court.  The case, Barnett says, is fundamentally about federalism versus state sovereignty.  "This case illustrates that having competing state and federal governments can serve to protect liberty," he says.  "These patients could not get congress to change the Controlled Substance Act, but they could get their state to permit their activity. 

States ought to be able to do that within the purview of their authority. 

Legally, that's what this case is about."

A Call To Action

Four years ago Barnett didn't expect his legal career would lead him into a courtroom, much less the Supreme Court.  Nor did he anticipate becoming a pivotal player in the medical marijuana movement. 

He had been a criminal prosecutor in the Cook County State Attorney's office in Chicago in the late 1970s, but since then has pursued a career in academic law. 

As an expert in constitutional law, and particularly the Ninth Amendment, Barnett became involved in a medical marijuana case in the late 1990s.  When California legalized marijuana for medical purposes in 1996, the Clinton administration began prosecuting so-called cannabis cooperatives, which supply the drug to their members. 

The Oakland Cannabis Buyers' Cooperative was ordered to shut down, and the trial judge asked the attorneys in the case to include in their brief a discussion of the Ninth Amendment, which states that the rights enumerated in the Constitution are not the only rights retained by the public.  The lawyers for the cooperative asked Barnett to write a few pages for the brief, and his role in the case gradually expanded. 

When he heard about Raich's and Monson's situation, he and two other lawyers filed Raich v.  Ashcroft in 2002, partly out of sympathy for medical marijuana patients, but also because of his concern for the Constitution."I think that what the federal government is trying to do to these patients is unconscionable," he says, "and I'm also very committed to the Supreme Court's cases that since 1995 have restricted congress' commerce clause power. 

That doctrine can be used here to protect these patients, and I believe in that doctrine."

Conservatives For Marijuana?

The case has become an unusual test for the conservative and liberal justices on the court, Barnett says.  Will conservative judges support something as progressive as medical marijuana in order to limit federal power? Conversely, will liberal justices uphold federal power, even when it means depriving patients of a potentially life-saving, or at least uniquely beneficial, medication? "If we win in this case," Barnett says, "it's going to be because the conservatives stick to their principles of limiting federal power. 

It's going to be a test for the liberals on the court, too.  Are they going to put their pro-federal power position over the health of these patients?

Or will they finally say, well, maybe the federal government has a limit to its power?"

Barnett foresees three possible decisions from the Supreme Court.  The justices could rule against the defendants, holding that the CSA is constitutional as applied to medical marijuana, thus allowing federal agents to resume marijuana raids in the 10 states that permit doctors to prescribe medical cannabis. 

The high court could also rule in favor of Barnett's clients, supporting their claim that it is unconstitutional for the federal government to use the CSA in the case of homegrown medical marijuana. 

Or the justices could sidestep the constitutionality debate, and rule that the statute's wording simply does not apply to medical marijuana, thus protecting medical marijuana users.  "If they take the position that the statute does apply to us," Barnett says, "then I think that will represent a constitutional counterrevolution.  It will represent the end of the effort by the court to put limits on federal power."

But Barnett is optimistic that the high court will support his argument, and rule that the CSA is unconstitutional as applied to medical marijuana.  "The odds are always against winning a case like this," he says, "because we're asking the court to hold a long-standing federal statute unconstitutional, in whole or in part, which is always an unusual event. 

But I think our chances are really good.  We not only have sympathetic plaintiffs on our side -- we have the basic first principles of the Constitution on our side.  We really have a lot going for us."