No.: 00-151
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In the Supreme Court of the United States
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United States of America, petitioner
vs.
Oakland Cannabis Buyers' Cooperative
et al., respondents
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On writ of certiorari to
the United States Court of Appeals
for the Ninth Circuit
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MOTION TO ALLOW FILING OF AMICUS BRIEF
and
AMICUS CURIAE BRIEF FOR AFFIRMANCE
IN SUPPORT OF RESPONDENTS
---------------------
Sudi Pebbles Trippet
P. O. Box 338
Albion CA 95410
(415) 469-2000
In propria persona
TABLE OF CONTENTS:
TABLE OF CONTENTS: p. i
TABLE OF AUTHORITIES: p. iii
REQUEST FOR LEAVE TO FILE AMICUS BRIEF:
p. 1
Amicus Trippet argues that the exemption
of medically-necessary cannabis from the
injunction should be not just affirmed
but broadened to apply to all cannabis
for bona-fide medical purposes when
recommended by a physician.
THE CSA AS APPLIED IS UNCONSTITUTIONAL:
p. 3
Unless the government has a compelling
federal interest in prohibiting medical
use of cannabis, then it violates
patients' and states' rights as construed
by this Court.
COMMERCE CLAUSE AND STATES' RIGHTS: p. 5
Congress has no constitutional power to
impose federal prohibition of a drug in
states that want to allow it, unless an
amendment (like the 18th) is enacted
authorizing that.
PATIENT'S RIGHT TO NEEDED MEDICINE: p. 20
The right to a medically-necessary
abortion even after fetal viability
implies that the right to medically-
necessary treatment is even broader than
the right to abortion.
CRUEL AND UNUSUAL PUNISHMENT: p. 24
Any punishment for supplying cannabis
for medical needs is unconstitutionally
excessive and disproportionate, since
there is no wrong done nor intended.
EQUAL PROTECTION WITH OTHER MEDICINES: p.
25
Congress cannot have intended that the
Attorney General be free to refuse to
recognize medical use of cannabis when
physicians recommend it and states
legalize it.
-i-
TABLE OF CONTENTS (CONTINUED):
APPENDIX:
ACTING SOLICITOR GENERAL'S WRITTEN
CONSENT TO FILING OF AMICUS BRIEF: p. A-1
TEXT OF CALIFORNIA PROPOSITION 215
(HEALTH AND SAFETY CODE SECTION 11362.5):
p. A-2
-ii-
TABLE OF AUTHORITIES:
U.S. v. Bass (1971) 404 US 336: p. 15
U. S. v. Carolene (1938) 304 US 144: p.
4, 27
The Child Labor Tax Case (1922) 259 US
20: p. 11
Coe v. Errol (1886) 116 US 517: p. 8
Colautti v. Franklin (1979) 439 US 379:
p. 2, 3, 21-22
Cruzan v. Director (1990) 497 US 261: p.
23
U. S. v. Darby (1941) 312 US 100: p. 13
U. S. v. Dewitt (1870) 9 Wall. 41: p. 7
Doe v. Bolton (1973) 410 US 179: p. 21-22
U. S. v. Doremus (1919) 249 US 86: p. 12
The Employers' Liability Cases (1908) 207
US 463: p. 10
Enmund v. Florida (1982) 458 US 782: p.
3, 25
Gibbons v. Ogden (1824) 9 Wheat. 1: p. 6
Washington v. Glucksberg (1997) 521 US
702:
p. 23-24, 29
Gregory v. Ashford (1991) 501 US 452: p.
16
Hammer v. Dagenhart (1917) 247 US 251: p.
11, 13
Hoke v. U. S. (1912) 227 US 308: p. 10
Jacobson v. Massachusetts (1905) 197 US
11: p. 9-10, 24
NLRB v. Jones & Laughlin Steel (1937) 301
US 1: p. 13
Kidd v. Pearson (1888) 128 US 1: p. 8-9
Lambert v. Yellowley (1926) 272 US 581:
p. 12
The License Tax Cases (1866) 5 Wall. 462
-iii-
TABLE OF AUTHORITIES (CONTINUED):
Linder v. U. S. (1925) 268 US 5: p. 2, 3, 5-6, 19, 30
U. S. v. Lopez (1995) 514 US 549: p. 2, 3, 6, 17-18
The Lottery Case (1903) 188 US 321: p. 9
County of Mobile (1880) 102 US 691: p. 7-8
U. S. v. Morrison (5/15/2000) ____ US ____:
p. 2, 14, 18-19
Mugler v. Kansas (1887) 123 US 623: p. 26-27
Nigro v. U. S. (1927) 276 US 332: P. 12
Perez v. U. S. (1970) 402 US 146: p. 15
Roe v. Wade (1973) 410 US 113: p. 3, 20-23, 29
U. S. v. Rutherford (1979) 442 US 544: p. 16, 29
Santa Cruz Fruit v. NLRB (1938) 303 US 453: p. 13
Schechter v. U. S. (1935) 295 US 495: p. 12
School of Magnetic Healing v. McAnnulty (1902)
187 US 94: p. 4, 28-29
Veazie v. Moor (1853) 14 How. 568: p. 7, 8
U. S. v. Vuitch (1971) 402 US 62: p. 21
Weems v. U. S. (1910) 217 US 349: p. 3, 25
Whalen v. Roe (1977) 429 US 589: p. 15
Wickard v. Filburn (1942) 317 US 111: p. 14
Maryland v. Wirtz (1968) 392 US 183: p. 14
Yick Wo v. Hopkins (1886) 118 US 356: p. 4, 25-26
-iv-
REQUEST FOR LEAVE TO FILE AMICUS BRIEF:
Sudi Pebbles Trippet hereby requests
leave to file the attached Amicus Curiae
brief in support of affirmance.
Consent has been requested from the
parties. The Acting Solicitor General has
consented in writing on behalf of the
United States (see Appendix at A-1) but
counsel for Respondents has withheld
consent, giving no reasons.
Amicus Trippet believes that unless the
government has a compelling federal
interest in banning medical cannabis,
constitutional caselaw protects its use
and furnishing for bona-fide medical
purposes; and that the Controlled Substances Act (CSA) must be construed so as
not to conflict
with those rights (or be voided insofar
as it conflicts).
Amicus is one of many patients who have
the right to use cannabis under
California's Prop. 215 (see A-2), but do
not, or might not, qualify under the
necessity defense.
She uses cannabis to prevent and relieve
migraine headaches, and has her
physician's written recommendation for
this, which is all she needs under
current state law.
Amicus chooses cannabis in part because
it is significantly safer than any other
migraine drug; but this is not sufficient
under the necessity defense as it usually
is understood (and has been understood in
this case) since she can't prove all
other migraine drugs are unreasonably
dangerous, ineffective or otherwise
unavailable.
Amicus is also a member of Respondent
Oakland Cannabis Buyers' Cooperative
(OCBC), but like the vast majority of
members she is effectively unrepresented
in this case.
The case now pending in this Court is
that of a few patients who are
Intervenors in the underlying case, each
of whom is qualified to use cannabis
under both state law and the common-law
necessity defense.
Their counsel argue that the CSA was not
intended to exclude a necessity defense
in exceptional cases like theirs.
Perhaps thinking the smallest victory is
the easiest to win, they have presented
arguments, mainly on statutory
construction, that are calculated to
benefit only the few patients with a
medical "necessity" for cannabis; and
they have essentially ignored all
arguments that would benefit more
patients, including most constitutional
arguments.
-1-
Since counsel for Respondents have been
unwilling to provide Amicus an advance
draft of their brief or inform her of
what they plan to put in it, she does not
know what their brief will include; but
based on the litigation so far, she
believes they plan to continue to exclude
all arguments that would tend to benefit
any large number of patients.
They have, in fact, gambled everything
on the opposite strategy; they argue that
so few patients would qualify under a
necessity defense as to be insignificant
and thereby
not in significant conflict with the
spirit of the CSA.
That is, Respondents' counsel (who
actually are Intervenors' counsel) have
chosen to sacrifice the interests of
perhaps 99% of OCBC's membership, in hope
of improving the chances of the tiny
minority they actually represent.
What is most ironic about this is that
by refusing to make any arguments that
could benefit the entire membership of
OCBC, Respondents' counsel have left out
the arguments most likely to succeed at all.
For instance, although the new President
is on record as believing a state should
have the right to legalize medical
cannabis, and it is clear from U.S. v.
Lopez (1995) 514 US 549 and U.S. v.
Morrison (5/15/2000) ___ US ___ that a
majority of this Court believe that the
Commerce Clause does not allow federal
"police" powers over local activities,
Respondents' counsel have barely
mentioned states' rights and have not
argued a single case in support.
Most notably, they have ignored Linder
v. U.S. (1925) 268 US 5, the controlling
case on the limits of federal power to
control practice of medicine within a
state, which construed the forerunner of
the CSA as inapplicable to intrastate
supplying of a patient with a small
quantity of a
drug for bona-fide medical purposes.
They also ignore the controlling case on
a patient's right to medically-necessary
treatment, Colautti v. Franklin (1979)
439 US 379, which held that the right to
choose such a treatment is even broader
than the right to choose abortion; and
that physicians must be given broad discretion to decide what is best for their
patients' health.
Amicus therefore seeks to argue that the
exemption to the injunction should be not
just upheld but broadened.
-2-
Unless the government has a compelling
federal interest in prohibiting medical
use of cannabis, then insofar as the CSA
is construed to have this effect, it
violates patients' and states'
constitutional rights as construed by
this Court in numerous cases over the
past two centuries.
Intervenors deserve to prevail in this
case, and would deserve to prevail even
if they had something less than a medical
"necessity" for cannabis; it should be
sufficient to have any bona-fide medical
purpose, such as to avoid the need to use
more hazardous alternatives (even if the
alternatives are not unreasonably hazardous).
(1) Linder v. U.S. (1925) 268 US 5 found
that the forerunner of the CSA could not
bar doctors from supplying small
quantities of drugs to patients for bona-
fide medical purposes, because Congress
lacks the constitutional authority to
control the practice of medicine within a
state.
U.S. v. Lopez (1995) 514 US 549 held
that the cases that expanded Congress'
Commerce Clause powers did not alter the
rule that Congress has no police power
over local acts
without a substantial involvement of
interstate commerce.
(2) Roe v. Wade (1973) 410 US 113 found
constitutional protection for the right
to choose one medical treatment,
abortion, with no need to claim medical-
necessity and with no suggestion that the
constitution gave abortion any more
protection than it gives other medical
choices.
Colautti v. Franklin (1979) 439 US 379
extended Roe by
ruling that even after fetal viability,
although there is no longer a general
right to choose abortion, physicians must
still be allowed broad discretion to
provide abortions when
they find it to be in the best interest
of a patient's health.
(3) Weems v. U.S. (1910) 217 US 349
requires dismissal of a charge if the
minimum penalty would be excessive and
disproportionate to the offense; but
supplying cannabis for medical use does
no offense to anyone, so any penalty will
by definition be excessive and
disproportionate.
The Enmund v. Florida (1982) 458 US 782
majority held that penalties are
unconstitutionally cruel unless based on
wrongful intent, while the dissent argued
that harm to victims also matters; but
those who supply cannabis for medical use
neither intend nor cause any harm to
anyone.
-3-
(4) Yick Wo v. Hopkins (1886) 118 US 356
held equal protection includes equal laws
without unjust discrimination between
those in similar circumstances; but the
CSA lets the Attorney General ban natural
cannabis yet allow synthetic cannabis and
many more dangerous drugs.
School of Magnetic Healing v. McAnnulty
(1902) 187 US 94 found that Congress
could not have intended such an absurd
result as placing an administrative
official in charge of deciding the
efficacy of medical treatments on which
the medical community has divided
opinions.
U.S. v. Carolene (1938) 304 US 144
requires voiding a statute that has
become irrational due to changes in facts
since its enactment; but the CSA was
based on there being no significant
current medical use of cannabis, and that
fact has been reversed since 1970.
There will be no need to decide these
issues if the CSA is construed to be
inapplicable in the absence of a
significant involvement of interstate
commerce; or inapplicable if and when
there is a significant medical usage of
cannabis.
But insofar as the CSA is construed as
taking away the right of California to
allow medical use of cannabis, it
violates states' rights as much as a
federal law regulating
the practice of medicine within a state.
Also, insofar as the CSA was intended to
take away a patient's right to obtain the
safest or otherwise best drug for her
medical condition, it is as
unconstitutional as a law
that takes away her right to obtain an
abortion.
Further, insofar as the CSA is held to
penalize medically necessary acts, or any
victimless acts done for bona-fide
medical purposes, it is as
unconstitutionally cruel as a law
that punishes people who have done
nothing wrong
And insofar as the CSA authorizes the
Attorney General to discriminate against
natural cannabis and in favor of
synthetic cannabis, it is as
unconstitutional as a law that authorizes
him to discriminate against small
businesses.
The Court should therefore remand the
question to the district court to
determine what compelling federal
interest the government has to balance
the patient's and state's.
-4-
(1) If Congress could not prohibit intrastate supplying of alcohol until a
constitutional amendment was enacted to
authorize this, then Congress cannot
impose prohibition of a medicine in
states that want to allow it, until and
unless a constitutional amendment is
enacted authorizing that.
Medical cannabis was legal by
prescription under state and federal law
until the 1970 enactment of the
Controlled Substances Act and its state
equivalents.
Before 1970 it was well understood that
the states had the exclusive right to
regulate local medical practice and that
federal jurisdiction over medicine only
existed if there was an involvement of
interstate commerce.
Since 1970 the federal government has
taken the position that the CSA
authorizes it to imprison any
distributors or growers of any quantity
of cannabis even for bona-fide medical
purposes, no matter how local the
activity and no matter how extreme or
well-verified the need.
One reason to doubt that Congress
intended that result is that such
penalties would appear worse than just
excessive; they would seem to be simply purposeless.
Another reason is that it makes more
sense to assume Congress only intended to
control acts having a significant impact
on interstate commerce, since it had so
long been understood that the federal
government could not control intrastate
medical practices and could not bar
doctors from supplying drugs to patients
in small amounts for bona-fide medical
purposes.
The case most directly on point, Linder
v. U.S. 268 US 5, which has never been
overturned, construed the 1914 Harrison
Narcotic Law as not intended to apply to
such intrastate activities since the
constitutionality of a federal
law against such activities would at best
be very doubtful:
"Congress cannot, under the pretext
of executing delegated power, pass
laws for the accomplishment
of objects not entrusted to the
Federal Government.
"And we accept as established
doctrine that any provision of an act
of Congress ostensibly enacted under
power granted by the Constitution, not
-5-
naturally and reasonably adapted to
the effective
exercise of such power but solely to
the achievement of something plainly within
power reserved
to the States, is invalid and cannot
be enforced."
"Obviously, direct control of
medical practice
in the States is beyond the power of
the Federal
Government." (Linder 268 US at 17-8)
Linder was typical of two centuries of
caselaw; from Gibbons v. Ogden (1824) 9
Wheat. 1 to U.S. v. Lopez (1995) 514 US
549, this court has consistently agreed
that Congress' power to regulate commerce
"among" the states does not include the
power to regulate drug (or any other)
commerce occurring entirely within a
single state.
Gibbons said Congress has no power over
commerce:
"which is completely internal, which
is carried
on between man and man in a State, or
between different parts of the same
State, and which does
not extend to or affect other
States."
"Comprehensive as the word 'among'
is, it
may very properly be restricted to
that commerce which concerns more
States than one....
"The enumeration presupposes
something not enumerated; and that
something, if we regard the language
or the subject of the sentence, must
be
the exclusively internal commerce of
a State."
"...inspection laws....form a
portion of that immense mass of
legislation, which embraces every
thing within...a State, not
surrendered to the general
government: all which can be most
advantageously exercised by the
States themselves.
"Inspection laws, quarantine laws,
health laws of every description, as
well as laws for regulating the
internal commerce of a State...are
component parts
of this mass."
"...quarantine and health laws...are
considered as flowing from the
acknowledged power of a State, to
provide for the health of its
citizens." (Gibbons at 9 Wheat. 194-
5, 203, 205)
-6-
Gibbons voided a New York law that
granted a monopoly of steamboat traffic
in New York waters used for interstate
and foreign shipping. By contrast, Veazie
v. Moor (1853) 14 How. 568 upheld a
similar Maine law, because it
applied to a river accessible only to
intrastate shipping:
"...the power vested in Congress by
article 1st, section 8th of the
Constitution, was not designed to
operate upon matters...which are
essentially local in their nature and
extent." (Veazie 14 How. at 574)
The License Tax Cases (1866) 5 Wall. 462
upheld a federal tax on sales of liquor
and lottery tickets on the ground that it
was a tax (and hence was authorized by
the Revenue Clause), and not a regulation
or prohibition under
the Commerce Clause, which would not have
been valid:
"...very different considerations
apply to the
internal commerce or domestic trade
of the States.
"Over this commerce and trade
Congress has no
power of regulation nor any direct
control.
"This power belongs exclusively to
the States."
(5 Wall. at 470-1)
By contrast, U.S. v. Dewitt (1870) 9
Wall. 41 voided a federal law restricting
(but not taxing) sale of naphtha and
illuminating oils as beyond the
constitutional authority over interstate
commerce, holding that Congress has no
power "to prohibit trade within the
limits of a State"; and
that the Commerce Clause has always been
understood:
"...as a virtual denial of any power
to interfere
with the internal trade and business
of the separate states..." (Dewitt 9
Wall. at 44)
The reason for giving Congress power
over interstate commerce was once well-
understood, not to create a police power
nor a national planned economy, but to
prevent the trade barriers that generally
existed across national boundaries and
that would exist across state boundaries
if the states were free to create them:
"...the object of vesting in
Congress the power
to regulate commerce...among the
States was to
-7-
insure uniformity of regulation
against conflicting and
discriminating State legislation.
(County of
Mobile v. Kimball (1880) 102 US 691
at 697)
"The design and object of that
power, as evinced in the history of
the Constitution, was to establish a
perfect equality amongst the several
States as to commercial rights, and
to prevent unjust and invidious
distinctions, which local jealousies
or local and partial interests might
be disposed to introduce and
maintain." (Veazie 14 How. at 574)
Coe v. Errol (1886) 116 US 517
considered the question
of when goods first come under the Commerce Clause:
"There must be a point of time when
they cease to be governed exclusively
by the domestic law and begin to be
governed and protected by the
national law of commercial
regulation, and that moment seems to
us to be a legitimate one for this
purpose, in which they commence their
final movement for transportation
from the State of their origin to
that of their destination."
"It is true, it was said in the case
of The Daniel Ball, 10 Wall. 557,
565: 'Whenever a commodity has begun
to move as an article of trade from
one State to another, commerce in
that commodity between the States has
commenced.'
"But this movement does not begin
until the articles have been shipped
or started for transportation from
the one State to the other."
(116 US at 525, 528)
Kidd v. Pearson (1888) 128 US 1 ruled
that a state has a right to decide
whether sale and manufacture of alcohol
were to be prohibited within it, because
the federal power to regulate commerce:
"...does not comprehend the purely
domestic commerce of a State which is
carried on between man and man within
a State or between different
parts of the same state..."
"If it be held that the [Commerce
Clause] includes the regulation of
all such manufactures as are in-
-8-
tended to be the subject of
commercial transactions in the
future, it is impossible to deny that
it would also include all productive
industries that contemplate the same
thing.
"The result would be that Congress
would be invested, to the exclusion
of the States, with the power to
regulate, not only manufactures, but
also agriculture, horticulture, stock
raising, domestic fisheries, mining -
in short, every branch of
human industry." (128 US at 17, 21)
As of 1888, such a conclusion still
seemed an absurdity.
The Lottery Case (1903) 188 US 321
expanded Congress' Commerce Clause
authority to include police powers over
perceived threats to public morals, but
upheld a federal law against interstate
trafficking in lotteries only because it
did not attempt to suppress lotteries
within a single state:
"...[it] does not assume to
interfere with traffic or commerce in
lottery tickets carried on
exclusively within the limits of any
State, but has in view only commerce
of that kind among the several
States.
"It has not assumed to interfere
with the completely internal affairs
of any State, and has only legislated
in respect of a matter which concerns
the people of the United States."
(188 US at 357)
Jacobson v. Massachusetts (1905) 197 US
11 upheld the
state's right to decide whether to
require vaccination:
"The authority of the State to enact
this statute
is to be referred to what is commonly
called the police power - a power
which the State did not surrender
when becoming a member of the Union
under the Constitution.
"...this court...has distinctly
recognized the authority of a state
to enact quarantine laws and 'health
laws of every description;' indeed,
all laws that relate to matters
completely within its territory and
which do not by their necessary
operation
affect the people of other States."
"The safety and health of the people
of Mass-
-9-
achusetts are, in the first instance,
for that Commonwealth to guard and
protect.
"They are matters that do not
ordinarily concern the National
Government." (197 US at 25, 38)
The Employers' Liability Cases (1908)
207 US 463 was one of many about federal
laws protecting workers from extreme
exploitation - laws that could be
authorized by the 13th Amendment as much
as by the Commerce Clause.
As the Court described it at 496, the
challenged law involved "regulation of
the relation of master and servant"
(i.e., employer and employee), and it
plainly had a purpose in spirit closer to
stopping "involuntary servitude" than to
protecting interstate freedom of trade.
However, the government did not invoke the 13th
Amendment.
Two Justices opined in dictum that the
Commerce Clause did not authorize such
interference in employment matters; they
also found the statute invalid because it
applied to intra- as well as interstate
commerce, with which three other Justices
concurred, making a majority.
Four dissenting Justices wanted to
uphold the statute, but only because they
construed it as inapplicable to intrastate activities. All nine Justices
agreed that Congress had
no power over a state's internal
commerce. As one put it,
"...I agree that the Congress has
not the power directly to regulate
the purely internal commerce of the
States, and...I understand that to be
the opinion of every member of the
court." (207 US at 505, Moody, J.,
dissenting)
Another case with 13th-Amendment
implications, Hoke v. U.S. (1912) 227 US
308, upheld the White Slave Act ban on
interstate transporting of women for
immoral purposes as a measure against "enslavement
in prostitution".
But again, transportation across state
lines was involved:
"Let an article be debased by
adulteration, let it be
misrepresented by false branding, and
Congress may exercise its prohibitive
power.
"It may be that Congress could not
prohibit the manufacture of the
article in a State.
"It may be that Congress could not
prohibit in
-10-
all of its conditions its sale
within a State.
"But Congress may prohibit its
transportation between the States,
and by that means defeat the
motive...of its manufacture." (227
US at 322)
Hammer v. Dagenhart (1917) 247 US 251
went to the extreme of holding that
Congress couldn't even control the
manufacture of goods intended for
interstate commerce:
"Over interstate transportation, or
its incidents, the regulatory power
of Congress is ample, but
the production of articles, intended
for interstate commerce, is a matter
of local regulation.
"When the commerce begins is
determined...
by its actual delivery to a common
carrier for transportation, or the
actual commencement
of its transfer to another state."
"The grant of power to Congress over
the subject of interstate commerce
was to enable it to regulate such
commerce, and not to give it
authority to control the States in
their exercise of the police power
over local trade and manufacture.
"The grant of authority over a
purely federal matter was not
intended to destroy the local power
always existing and carefully
reserved to the States
in the Tenth Amendment to the
Constitution."
"...the commerce power....is one to
control the means by which commerce
is carried on, which is directly the
contrary of the assumed right to
forbid commerce from moving and thus
destroy it as to
particular commodities." (247 US at
272-3, 269)
The Court therefore voided a federal law
banning interstate commerce in products
of companies that employ child
labor below a stated age or in excess of
stated hours.
Congress responded by enacting a stiff
tax on companies that violate child-labor
standards. In the Child Labor Tax Case
(1922) 259 US 20, the Court voided it,
holding that the Revenue Clause, like the
Commerce Clause, couldn't be
used to give power to Congress over intrastate affairs:
"To give such magic to the word
'tax' would be
to break down all constitutional
limitation of the
-11-
powers of Congress and completely
wipe out the
sovereignty of the States." (259 US
at 38)
Since child labor comes about as close
as you can get to "involuntary
servitude", and the 13th Amendment
clearly overrides state autonomy, it is
not clear why the government didn't
claim authority under that provision; if
they had, later caselaw might have gone
very differently.
Lambert v. Yellowley (1926) 272 US 581
upheld a federal law that limited (but
didn't prohibit) prescriptions of alcohol for medical use. A four-justice
dissent argued:
"Congress...cannot directly restrict
the professional judgment of the
physician or interfere with
its free exercise in the treatment of
disease.
"Whatever power exists in that
respect belongs to
the states exclusively." (Lambert 272
US at 598)
The Lambert majority at 593, citing
Everard's Breweries v. Day 265 US 545,
acknowledged that Congress generally
can't enact such laws, but ruled that the
18th Amendment gave Congress the power to
limit prescriptions of alcoholic
beverages "although affecting subjects
which, but for the Amendment, would be
entirely within state control".
The CSA's predecessor was upheld in U.S.
v. Doremus (1919) 249 US 86 and in Nigro
v. U.S. (1927) 276 US 332
on the theory that it was a tax, not a
prohibition:
"In interpreting the Act, we must
assume
that it is a taxing measure, for
otherwise it
would be no law at all.
"If it is a mere act for the purpose
of regulating and restraining the
purchase of the opiate and other
drugs, it is beyond the power of
Congress and must be regarded as
invalid..." (276 US at 341)
Schechter v. U.S. (1935) 295 US 495
unanimously rejected the theory that
Congress has authority over everything
that affects interstate commerce, since
in effect this would
mean that Congress had authority over
everything, period:
"If the commerce clause were
construed to reach all enterprises
and transactions which could be said
-12-
to have an indirect effect upon
interstate commerce, the federal
authority would embrace
practically all the activities
of the people and the authority
of the State over its domestic
concerns would exist only
by sufferance of the federal
government.
"...the authority of the federal
government may not be pushed to such
an extreme as to destroy
the distinction, which the commerce
clause itself establishes, between
commerce 'among the several States'
and the internal concerns of a
State." (295 US at 546, 550)
Even NLRB v. Jones & Laughlin Steel
(1937) 301 US 1, which gave an expansive
reading to the Commerce Clause,
still warned that the limits of Congress'
powers:
"...must be considered in the light
of our dual system of government and
may not be extended so as to embrace
effects upon interstate commerce so
indirect and remote that to embrace
them...would effectually obliterate
the distinction between what is
national and what is local and create
a completely centralized government."
(301 US at 37)
Santa Cruz Fruit v. NLRB (1938) 303 US
453 also gave the Commerce Clause an
expanded reading, but still denied
Congress any powers over intrastate
commerce with only
a remote or insignificant effect on
interstate commerce:
"...where federal control is sought
to be exercised over activities which
separately considered are intrastate,
it must appear that there is a close
and substantial relation to
interstate commerce in order to
justify the federal intervention...
"However difficult in application,
this principle is essential to the
maintenance of our constitutional
system. The subject of federal power
is still 'commerce,' and not all
commerce, but commerce with foreign
nations and among the several
States." (303 US at 466)
U.S. v. Darby (1941) 312 US 100 further
expanded the Commerce Clause,
overturning Hammer v. Dagenhart and
-13-
upholding a federal minimum-wage and
maximum-hours law, applied not only to
goods shipped interstate but also to the
production of a commodity all or part of
which is intended for interstate
commerce; but Darby expanded the Clause
only where there is a "substantial effect
on interstate commerce", 312 US at 119,
with no suggestion that this could also
apply to purely local, small-scale
activities.
Wickard v. Filburn (1942) 317 US 111
gave an even more expansive reading to
the Commerce Clause, allowing Congress
to limit the size of wheat crops.
But the expansiveness of Wickard has
often been greatly exaggerated,
including by Justice Souter's lead
dissent in U.S. v. Morrison (2000) ___ US
___, ___, which claims it
applied to "ostensibly domestic,
noncommercial farming."
Filburn, a commercial farmer, had grown
23 acres of wheat, which was 12 acres
more than his allotment under the
Agricultural Adjustment Act of 1938. Some
of this was for sale and some for feeding
his own livestock but almost all of it
was grown for purely commercial purposes.
The court held that farms of such size,
collectively, had sufficient effect on
the national market that Congress could
impose a maximum number of acres of wheat
per farm.
Thus Wickard, one of few rulings
allowing Congress so much power over
local activities, only concerns crops
that are many times larger than a
family's annual consumption (even though
not large in comparison to other farms).
The
Court made clear that the Act didn't
affect small farms:
"Exemption from the applicability of
quotas
was made in favor of small
producers....on which the acreage
planted to wheat is not in excess of
fifteen acres." (317 US at 92).
Wickard did not consider and therefore
does not control the case of a patient
who grows (or a doctor who supplies) a
small quantity sufficient for her own
personal needs.
Justice Douglas' dissent in Maryland v.
Wirtz (1968) 392 US 183 at 204 argued
that Wickard meant "All activities
affecting commerce, even in the minutest
degree...may be
regulated and controlled by Congress..."
-14-
The Wirtz majority rejected that
interpretation:
"Neither here nor in Wickard has the
Court declared that Congress may use
a relatively
trivial impact on commerce as an
excuse for
broad general regulation of state or
private activities..." (392 US at 197
fn 27)
Perez v. U.S. (1970) 402 US 146 gave
perhaps the most expansive reading to the
Commerce Clause, upholding a federal law
against loan-sharking that applied to
even the smallest transactions; Perez
didn't give Congress power over local
crime in general but rather only found
that Congressional findings justified the
conclusion that loan-sharking was controlled by interstate
organized crime:
"It appears...that loan sharking in
its national setting is one way
organized interstate crime holds its
guns to the heads of the poor and the
rich alike and syphons funds from
numerous localities to finance its
national operations." (402 US at 146)
In U.S. v. Bass (1971) 404 US 336, the
Court construed a federal law against
felons possessing guns as requiring a
showing of connection to interstate
commerce:
"Because its sanctions are criminal
and because, under the Government's
broader reading, the statute would
mark a major inroad into a domain
traditionally left to the States, we
refuse to adopt the broad reading in
the absence of a clearer
direction from Congress."
"...unless Congress conveys its
purpose clearly,
it will not be deemed to have
significantly changed the federal-
state balance.
"Congress has traditionally been
reluctant to
define as a federal crime conduct
readily denounced as criminal by the
States." (404 US at 339, 349)
Even after the CSA was enacted, the
States have still been understood to be
in charge of regulating health within
their borders; as Whalen v. Roe (1977)
429 US 589 put it:
"It is...well-settled that the State
has broad police
-15-
powers in regulating the
administration of drugs by the health
professions." (429 US at 603, fn. 30)
U.S. v. Rutherford (1979) 442 US 544
upheld a ban on interstate commerce in an
unproved cancer drug, Laetrile, rejecting
a statutory-construction argument that it
was unreasonable if applied to
terminally ill patients.
The Court did not consider any
constitutional arguments, but still made
clear why there was no Commerce Clause or
states' rights issue, the ban being only
on interstate trade:
"Seventeen States have legalized the
prescription and use of Laetrile for
cancer treatment within their
borders, and similar statutes have
been defeated in
14 other States." (442 US at 554, fn.
10)
This Court has not forgotten the reasons
for not having a centralized government;
it explained them at length just a
decade ago in Gregory v. Ashcroft (1991)
501 US 452:
"This federalist structure of joint
sovereigns preserves to the people
numerous advantages. It assures a
decentralized government that will be
more sensitive to the diverse needs
of a heterogenous society; it
increases opportunity for citizen
involvement in democratic processes;
it allows for more innovation and
experimentation in government; and it
makes government more responsive by
putting
the States in competition for a
mobile citizenry."
"Perhaps the principal benefit of
the federalist
system is a check on abuses of
government power."
"Just as the separation and
independence of the coordinate
branches of the Federal Government
serve to prevent the accumulation of
excessive power in any one branch, a
healthy balance of power between the
States and the Federal Government
will reduce the risk of tyranny and
abuse from either front." (501 US at
458)
Since there is no issue here of failure
to pay some tax, nor any issue of
importing from outside the country, nor
any other apparent basis for federal
jurisdiction, it would appear that the
government must claim that every time a
-16-
patient grows one cannabis plant or even
one dose is supplied to her, it has
enough indirect effect on interstate
commerce that the federal government has
jurisdiction.
U.S. v. Lopez went to great lengths to
reject that theory.
Lopez voided a federal law penalizing
possession of a gun in a school zone. The
dissenters argued that the perceived
harmful effects of gun possession in
school zones were so severe as to make
the question a federal issue, Congress
having jurisdiction under the Commerce
Clause on the theory that anything so
harmful to society as a whole must
by definition have some effect on
interstate commerce.
The majority denied that the
constitutional power to "regulate
Commerce...among the several States"
(Art. 1, 8, cl. 3) included power over
intrastate activities (which, in Lopez'
case, weren't even "commerce").
The lead opinion by Chief Justice
Rehnquist summarized the history of
Supreme Court Commerce Clause jurisprudence and concluded that it has never
agreed to such an expansive reading of
that clause as would give Congress
authority over activities with a very
indirect and insubstantial effect on
interstate commerce.
The majority's main reasoning was that
such a reading would give the federal
government police powers over even the
most localized (and non-commercial) of
activities, which would be redundant to
or supersede the state's jurisdiction,
and which would mean the Commerce Clause
had created a centralized national
government with general
police powers - which it plainly wasn't
meant to do.
"The Government admits, under its
'costs of crime' reasoning, that
Congress could regulate not only all
violent crime, but all activities
that might lead to violent crime,
regardless of how tenuously they
relate to interstate commerce....
"Similarly, under the Government's
'national productivity' reasoning,
Congress could regulate any activity
that it found was related to the
economic productivity of individual
citizens....
"Under the theories that the
Government presents ...it is
difficult to perceive any limitation
on federal power, even in areas such
as criminal law enforcement or
education where States historically
have been sovereign.
-17-
"Thus, if we were to accept the
Government's arguments, we are hard
pressed to posit any activity by an
individual that Congress is without
power to regulate." (514 US at 564)
Justice Thomas' concurrence in Lopez
traces the history of the court's
Commerce Clause jurisprudence from the
1700s to 1936, showing that for the first
150 years the clause was understood to
differentiate between interstate and
intrastate commerce, creating federal
jurisdiction over the one but reserving
the other to the states.
Justice Thomas believes that even a
"substantial effect" on interstate
commerce is not sufficient to provide
federal
jurisdiction, since there are many crimes
that indirectly have such an effect but
which the Commerce Clause plainly
was not intended to create federal
jurisdiction over.
"We have said that Congress may
regulate not only 'Commerce...among
the several States'...but also
anything that has a 'substantial
effect' on
such commerce.
"This test, if taken to its logical
extreme,
would give Congress a 'police power'
over all
aspects of American life."
"Although we have supposedly applied
the substantial effects test for the
past 60 years, we always have
rejected readings of the Commerce
Clause and the scope of federal power
that would permit Congress to
exercise a police power; our cases
are quite clear that there are real
limits to federal power." (514 US at
584, Thomas, concurring; emphasis in
original)
An even more recent case, U.S. v.
Morrison (5/15/2000) ___ US ____,
rejected the theory that Congress has
power
over violent crime based on its
aggregated effects:
"Given...petitioners' arguments, the
concern that we expressed in Lopez
that Congress might use
the Commerce Clause to completely
obliterate the Constitution's
distinction between national and
local authority seems well founded."
-18-
"If accepted, petitioners' reasoning
would allow Congress to regulate any
crime as long as the nationwide,
aggregated impact of that crime has
substantial effects on employment,
production,
transit, or consumption."
"We accordingly reject the argument
that Congress may regulate
noneconomic, violent criminal conduct
based solely on that conduct's
aggregate effect on interstate
commerce.
"The Constitution requires a
distinction between what is truly
national and what is truly local....
"In recognizing this fact we
preserve one of the few principles
that has been consistent since the
Clause was adopted." (Morrison ____
US at ____)
But if Congress has no power to prohibit
violent local acts such as rape, what
power can they have to prohibit non-violent
local acts such as the practice
of medicine?
-
So much of the expansion of the Commerce
Clause has been for purposes of
preventing economic exploitation of those
in powerless positions (child-labor,
"white slave" traffic, unorganized labor,
etc.), that 13th-Amendment "involuntary
servitude" issues seem at least as
relevant as any theory that interstate
commerce is affected.
Morrison, too, can be seen as a 13th-
Amendment-related
case; it is no stretch to say that rape
is a kind of slavery.
But however analysed, the expanded-
Commerce-Clause cases mostly involved
laws intended to protect someone from
crime or exploitation; they are not very
relevant precedents regarding whether a
state still has the right to
control the practice of medicine within
its borders.
Other expansions of the Commerce Clause
have resulted from cheap transport
causing the economy as a whole to become
more national; but even if 23-acre farms
and loan-sharks of all sizes can be
presumed to have an interstate impact,
Linder has never been overturned as to
supplying
small amounts of drugs to patients for
medical purposes.
-19-
There is not just a Commerce Clause
issue but also a very strong states'
rights issue here, since California has
decided it wants medical use of cannabis
to be legal here.
States have sometimes been denied the
right to prohibit medical treatments, but
Amicus knows of no case where a state has
been denied the right to allow a
treatment.
States were free to allow abortion even
before Roe v. Wade; states are now free
to allow Laetrile or assisted suicide.
Why can't a state allow medical use of
cannabis?
There is not just a Commerce Clause
issue but also a very strong states'
rights issue here, since California has
decided it wants medical use of cannabis
to be legal here.
States have sometimes been denied the
right to prohibit medical treatments, but
Amicus knows of no case where a state has
been denied the right to allow a
treatment.
States were free to allow abortion even
before Roe v. Wade; states are now free
to allow Laetrile or assisted suicide.
Why can't a state allow medical use of
cannabis?
- - -
(2) If the constitution protects a
woman's right to abort a pregnancy
despite the loss of a nascent life, a
thing of undisputedly great value, then
it must at least equally protect her
right to take cannabis to abort a
migraine headache attack, a thing of
indisputably negative value.
Medically-necessary abortion was already
generally if not universally legal, long
before Roe; Roe recognized not just
the rights of a few exceptional patients,
but of all.
If Roe is taken as giving abortion
greater protection than most other
medical treatments, it would be fair to
say that the enacters of the Constitution
never intended that.
But it would be more fair to understand
Roe as holding that the general standards
of medical freedom also apply to
abortion (despite the valid state
interest in the fetus' life).
The right not to be deprived of life,
liberty or property without due process,
is enough textual support for medical
freedom to justify requiring the
government to show that it has a
compelling interest in banning a medical
treatment
and that its law is narrowly tailored to
serve that interest.
Roe at 410 US 153 gave as one argument
for the right to abortion, that it can be
safer than full-term pregnancy.
Full-term pregnancy is not unreasonably
hazardous for most women, but even a
small risk is enough under Roe that all
women have a right to refuse to bear it.
Amicus has a similar right to choose the
safest drug for her condition, even if
the other drugs are not unreasonably
-20-
hazardous, unless the government can
show what compelling interest it has in denying her
this choice.
If the Roe court had considered that
child-bearing is also notoriously
painful, it might have added that it
would be unconstitutionally cruel to
punish a woman for refusing to undergo
such pain. Likewise, migraines are
painful enough
that refusal to suffer them can hardly be
punishable.
Textual support for a constitutional
right to abortion can also be found in
the 13th Amendment ban on involuntary
servitude. To be forced to bear a child
against one's will is a kind of slavery,
but it is in principle little different
from being forced to bear headache pain
or other illness because of an
unjustified prohibition of the best
available medicine.
The Roe court itself held that a woman's
right to choose a medical treatment
necessary to her life or health is even
broader than her general right to choose
abortion; that is, even after the fetus
is viable (when there is no longer a
general right to choose abortion under
Roe), she still has a
right to choose abortion if her health
requires it:
"...subsequent to viability, the
State in promoting its interest in
the potentiality of human life may,
if it chooses, regulate, and even
proscribe, abortion except where it
is necessary, in appropriate medical
judgment, for the preservation of the
life or health
of the mother." (Roe v. Wade 410 US
at 164-5)
In U.S. v. Vuitch (1971) 402 US 62 and
again in Doe v. Bolton (1973) 410 US 179,
this Court upheld the adequacy of medical-
necessity exemptions to abortion
restrictions; but in Colautti v. Franklin
(1979) 439 US 379, this Court
found such an exemption to be inadequate,
explaining:
"The contested provisions [in Vuitch
and Doe]
had been interpreted to allow the
physician to
make his determination in the light
of all attendant circumstances -
psychological and emotional as
well as physical - that might be
relevant to the
well-being of the patient.
"The present statute does not afford
broad discretion to the physician." (Colautti
439 US at 394)
-21-
Thus this Court has not only found a
right to choose a medically-needed
treatment that is broader than the right
to choose abortion, this Court has also
found that this must not be a narrow
exemption (as in the common-law necessity
defense), but rather must allow the
physician to have "broad discretion" to
consider all factors revelant to the
patient's "emotional as well as
physical...well-being".
Roe held that, even where there was no
significant health hazard to the mother,
her right to choose this particular
medical treatment was so fundamental that
even the state's
interest in the fetus' life wasn't enough
to outweigh it.
Two justices dissented in Roe, as in
Doe, its companion case; but both
dissenters made clear that they would see
it
differently if the mother's health were
at risk:
"If the Texas statute were to
prohibit an abortion even where the
mother's life is in jeopardy, I have
little doubt that such a statute
would lack a rational relation to a
valid state objective..." (Roe, 410
US
at 173, Rehnquist, dissenting)
"It is my view...that the Texas
statute is not constitutionally
infirm because it denies abortions
to those who seek to serve only their
convenience rather than to protect
their life or health." (Doe,
419 US at 222, White, dissenting)
Thus it appears that all nine Justices
agreed abortion is constitutionally-
protected when medically necessary; why
should medically-necessary cannabis be
less protected?
There are only two possible inferences:
Either: the Constitution gives abortion
such preferred status that a woman has a
right to choose it, even after fetal
viability, even for mere
"emotional...well-being", yet
no right to choose cannabis even if her
life depends on it.
Or: patients always have a right to
choose what's best for their health, and
no law may take away this right unless
narrowly-tailored to serve a compelling
interest.
Roe applied the general "strict
scrutiny" standard:
-22-
"Where certain 'fundamental rights'
are involved, the Court has held that
regulation limiting these rights may
be justified only by a 'compelling
state interest.'" (410 US at 155)
This case involves "life" as well as
"liberty", but either would be enough to
require strict-scrutiny review.
"Liberty" is sometimes taken as meaning
the freedoms considered fundamental by
Anglo-American common law tradition when
the Constitution was enacted.
By this standard, medical use of
cannabis is protected, since medical use
of all herbs was always legal under the
common law. And medically-necessary
cannabis is even more protected, since
the very existence of a "common-law
necessity defense" shows there was a well-
established
right to disobey laws when needed to
avoid a greater evil.
"Liberty" is also sometimes construed in
autonomy terms ("...our notions of
liberty are inextricably entwined with
our idea of physical freedom and self-
determination...", Cruzan v. Director
(1990) 497 US 261 at 287, O'Connor,
concurring), by which Respondents should
likewise prevail.
Neither common law nor the logic of
autonomy justifies giving the right to
choose to refuse a treatment any more
protection than the right to choose to
have it.
Specifically as to medically-necessary
treatment, the right to refuse lifesaving
treatment has been almost universally
recognized, while the right to have
lifesaving treatment has
inexplicably not been so well recognized.
Washington v. Glucksberg (1997) 521 US
702 found no right to choose life-ending
treatment, based on a long-standing Anglo-
American tradition of treating assisted
suicide as murder rather than as a
"liberty".
But even if "life, liberty and property"
don't include a right to death, they at
least include a right to "life"!
So if patients have a right to refuse
medically-necessary treatment even to the
point of committing (unassisted) suicide,
how can their right to have medically-
necessary treatment - i.e., to choose to
live - be any less?
-23
Patients must also have a right to
choose medication to avoid pain, nausea,
blindness or other suffering.
Glucksberg did not decide that issue
since Washington's law allowed palliative
care (see 521 US at 737, O'Connor,
concurring, and 791, Breyer, concurring);
but common law decides it, since the
medical use of drugs to relieve suffering
was never a crime under the common law.
Amicus does not claim that common law or
autonomy principles give her absolute
freedom of choice over her body or
health; only that she has the right to
have her medical interests balanced
against whatever legitimate counter-
interests the government may have.
Jacobson v. Massachusetts (1905) 197 US
11 upheld a compulsory-vaccination law,
but agreed that people have a
right to challenge the justification for
such a law:
"There is, of course, a sphere
within which the individual may
assert the supremacy of his own will
and rightfully dispute the authority
of any human government, especially
of any free government existing under
a written constitution, to interfere
with the exercise of that will." (197
US at 29)
If the CSA really was intended to
criminalize cannabis even for bona-fide
medical use and even when medically
necessary, it is as unconstitutional as a
law criminalizing medically necessary
abortion - unless the government has some
legitimate interest, compelling enough to
justify the avoidable pain, avoidable
nausea and avoidable deaths.
The Court should therefore either
construe the CSA as inapplicable to bona-
fide medical use of cannabis, or else
remand the case for determination of
whether the government has a legitimate
(federal) interest sufficiently
compelling as to outweigh the interests
of the patient.
- - -
(3) If the government cannot show a
compelling interest in prohibiting
medical use of cannabis, then any penalty
for supplying it to a patient for bona-
fide medical purposes is excessive and
disproportionate, and therefore would be
unconstitutionally cruel and unusual
punishment.
-24-
Weems v. U.S. 217 US at 349 held that
"punishment for crime should
be...proportioned to the offense".
But medical use of cannabis does no
apparent offense to any known interest,
so any penalty for supplying it for
medical use is necessarily
disproportionate and excessive.
In Enmund v. California 458 US at 800
the majority held "criminal penalties to
be unconstitutionally excessive in the
absence of intentional wrongdoing" or
"moral guilt".
The dissent argued that in addition to
intent, punishment
should also be proportionate to the harm
done:
"...the magnitude of the punishment
imposed
must be related to the degree of the
harm inflicted
on the victim, as well as to the
degree of the defendant's
blameworthiness." (Enmund 458
US at 800, O'Connor dissent)
But there is zero "harm inflicted on the
victim" when someone grows or supplies
cannabis for medical use.
And as to "intentional wrongdoing",
those who supply cannabis for medical
purposes have zero "moral guilt".
Therefore, if the government cannot show
a legitimate purpose for prohibiting
medical use of cannabis, then insofar as
the CSA is construed to apply to
supplying it for medically-necessary or
other bona-fide medical purposes
(including self-supply by growing it),
any penalty it imposes is excessive and
disproportionate, and thus
unconstitutionally cruel punishment; and
the resulting and intended deprivation of
medicine is no less cruel.
_ _ _
(4) Even if Congress enacted the CSA
based on evidence that there was no
significant medical use of cannabis in
1970, it did not authorize the Attorney
General to ignore any revival of medical
use of cannabis as has occurred, nor to
substitute his judgment for that of
physicians, nor to unreasonably allow
synthetic but not natural cannabis.
To the extent Congress meant to
authorize the Attorney General to
discriminate among medicines, the result
is reminiscent of the San Francisco
ordinance struck down in
Yick Wo v. Hopkins 118 US 356, whose:
-25-
"tendency...if not...purpose...is to
drive out of business all the
numerous small laundries, especially
those owned by Chinese, and give a
monopoly...to
the large institutions
established...by...large associated Caucasian capital" (Yick Wo 118
US at 362)
The CSA as it has been applied has had
the similar "tendency...if not...purpose"
of driving out of business the many small
producers of natural cannabis, including
many non-whites, while giving a monopoly
to the "large associated Caucasian
capital" corporations that sell the
patented competing drugs including the
synthetic form of cannabis known as
Marinol (= Marijuanaoil) or dronabinol.
Another way the old San Francisco
ordinance resembles the CSA as it has
been applied, is that both are uncompromising prohibitions rather than
reasonable regulations:
"It does not profess to prescribe
regulations
...nor require...precautions and
safeguards...
nor in any other way attempt to
promote their safety and security
without destroying their
usefulness" Yick Wo at 372
And insofar as the CSA empowers the
Attorney General
to discriminate among medicines, as Yick
Wo put it:
"Though the law be fair on its face
and impartial in appearance, yet, if
it is applied...with...an unequal
hand, so as practically to make
unjust... discriminations between
persons in similar circumstances...the denial is still within
the prohibition
of the Constitution." Yick Wo at 373
Mugler v. Kansas (1887) 123 US 623
upheld a state's right to pursue
interests such as "public health" by
prohibiting sale of alcohol (the law allowed
it for medical use).
But at 660 the Court wrote that the
"power does not exist with the whole
people to control rights that are purely
and exclusively private"; and that courts
must judge
whether privacy rights are violated by a
law:
"It does not at all follow that
every statute enacted ostensibly for
the promotion of those
[public] ends, is to be accepted as a
legitimate
exertion of the police power of the
state....
-26-
"If, therefore, a statute purporting
to have been enacted to protect the
public health, the public morals or
the public safety, has no real or
substantial relation to those
objects...it is the duty of the
courts to so adjudge..." Mugler 123
US at 661
Whether there was no significant medical
usage of cannabis in 1970 may be debated
but is now moot.
Since Congress authorized the Attorney
General to re-schedule cannabis to allow
prescriptions if a medical use developed,
it plainly did not consider this
impossible.
However reasonable the CSA may have been
in 1970, the situation regarding medical
use of cannabis has changed; this case is
now in this Court only because there has
been such an enormous increase in the
medical use of cannabis,
that California voters felt the need to
make it a "right".
"the constitutionality of a statute
predicated upon the existence of a
particular state of facts may be
challenged by showing to the court
that those facts
have ceased to exist." (Carolene 304
US at 153)
This is not changed by Congress having
delegated to the Attorney General the
decision whether to recognize that the
facts have changed. While it is not clear
that Congress even has the power to
delegate to the executive branch the
decision of what the legal status of a
thing shall be, it certainly cannot delegate any power it
doesn't have.
Nothing in the CSA justifies the
conclusion that Congress intended that
the Attorney General have the power to
tell physicians whether there is a
medical use for cannabis; if that were
the purpose, it would have made more
sense to
give this power to the Surgeon General
instead.
Rather, Congress may be assumed to have
meant it to work the other way around:
the physicians would tell the Attorney
General if a medical use for cannabis
existed, and the Attorney General would
just accept their opinion, acting as a
mere clerk, not as National Health
Commissar.
But insofar as the CSA empowers the
Attorney General to decide whether
medical use of cannabis is desirable (and
-27-
not just whether it is bona-fide medical
use), it puts a medical decision in the
hands of someone with no medical
credentials who, as chief prosecutor,
can't be impartial.
And insofar as the CSA gives a
Washington bureaucrat with no medical
credentials the power to make medication
decisions overriding the patient's and
her doctor's choices, it is structurally
irrational; that is, there is no possible
rational basis for thinking the Attorney
General is the right person to be making
Amicus' medical decisions.
The Attorney General's interpretation of
the CSA has a remarkably similar historic
precedent.
School of Magnetic Healing v. McAnnulty
(1902) 187 US 94 concerned a fraud
statute that the Postmaster General
interpreted as allowing him to ban the
School of Magnetic Healing from receiving
mail.
The Court thought Congress mustn't have
intended this, since it would be absurd
to put an official with no relevant
credentials in charge of deciding the
value of a treatment:
"It is still in an empirical stage,
and enthusiastic believers in it may
regard it as entitled to a very high
position in therapeutics, while many
others may think it absolutely
without value or potency
in the cure of disease.
"Was this kind of question intended
to be submitted for decision to a
Postmaster General, and...that he
might decide the claim to be a
fraud...?
"As the effectiveness of almost any
particular method of treatment of
disease is, to a more or less extent,
a fruitful source of difference of
opinion, even though the great
majority may be
of one way of thinking, the efficacy
of any special method is certainly
not a matter for the decision
of the Postmaster General within
these statutes
relative to fraud." (187 US at 105)
If California physicians (and voters)
believe cannabis safe and effective for
various conditions, equal protection
with
magnetic healing requires the same
decision here.
"Was this kind of question intended to
be submitted for decision to [an
Attorney] General...?"
-28-
There could be no rational basis for
giving the Attorney General the power to
decide if the medical use of cannabis is
bona-fide, nor whether to exclude it from
interstate commerce as fraudulent; and
even less, to impose his view by
controlling the local practice of
medicine within a state
that has voted to declare medical use of
cannabis a "right".
Nor is there any possible rational basis
for giving the Attorney General the power
to decide that the physicians who
recommend cannabis are mistaken; "...the
efficacy of any special method is
certainly not a matter for the decision
of the [Attorney] General..."
While the government shouldn't be
allowed to prohibit a medicine without a
sufficient compelling interest, it
doesn't even have a rational basis for
prohibiting physicians from prescribing
natural cannabis while allowing
prescriptions of synthetic cannabis and
other more hazardous drugs.
It also has no rational basis for
discriminating against medical cannabis
compared with laetrile, which states are
free to legalize as many have done
(Rutherford 442 US at 554 fn. 10);
assisted suicide, which states can
legalize as Oregon has done (Glucksberg
521 US at 709 fn. 7); abortion, which
states could legalize even before Roe; or
alcohol, which states were free to
legalize before the 18th Amendment and
have been since it was repealed.
Such unequal protection demands
explanation.
_ _ _
CONCLUSION: The Attorney General's
interpretation of the CSA is irrational
and constitutionally dubious at best
since nothing in the record shows a
federal interest sufficient to outweigh
the interests of the state or patient.
Congress anticipated that there might be
significant medical usage of cannabis in
the future, and therefore authorized the
Attorney General to re-schedule it to
allow prescriptions if this occurred (as
it has).
But nothing in the CSA implies that the
Attorney General was authorized to
substitute his judgments for those of the
medical profession or his will for that
of the states.
-29-
As he has interpreted it, the CSA
authorizes him to control the local
practice of medicine in the states,
against their wishes; to deny physicians
the right to prescribe the medicine they
believe best; and to deny patients the
medicine that is best for them, even at the
cost of their lives.
One reason to doubt that interpretation
is that there is no apparent reason why
Congress would want to give the Attorney
General such power over the practice of
medicine
or over the internal affairs of a state.
Another reason is that Congress may be
assumed to have been aware of Linder and
other constitutional caselaw, and not to
have intended to give the Attorney
General powers that Congress itself had
already been denied.
If the CSA gives the Attorney General
such powers, this Court should remand for
consideration of whether there is a
sufficient federal interest to outweigh
the state's under the Commerce Clause;
whether there is a compelling interest to
outweigh the patient's under the Due
Process Clause; whether the CSA's
penalties are cruel and unusual
punishment as applied to cannabis for
medical use; and whether there is a
rational basis for discriminating against
medical cannabis compared to other
medical treatments.
But the constitutional issues need not
be decided if it is assumed that Congress
intended that the Attorney General re-
schedule cannabis if and when there was a
revival of its medical usage; and did not
intend to authorize him to substitute his
views for that of physicians or states.
In that event, the medical-necessity
exemption to the injunction should be
affirmed; and the case remanded with
instructions to enlarge the exemption to
include all physician-approved medical
purposes as per Linder.
Respectfully submitted February 19, 2001.
.........................................
....
Sudi
Pebbles Trippet
amicus in pro. per.
-30-
ACTING SOLICITOR GENERAL'S CONSENT TO
FILING:
U.S.
Department of Justice
Office of the Solicitor
General
Washington
D.C. 20530
February 15,
200l
Also via telefax 707-937-3160
Pebbles Trippet
Box 338
Albion Ca 95410
Re: United States v. Oakland
Cannabis Buyer's
Cooperative et al., No. 00-151
Dear Ms. Trippet,
As requested in your letter of
February 14, 2001, I hereby consent to
the filing of a brief amicus curiae on
behalf of Sudi Pebbles Trippet in the
above-styled case.
Sincerely,
Barbara
D. Underwood
Acting
Solicitor General
cc: William K. Suter, Esquire
Clerk
Supreme Court of the United States
Washington D.C. 20543
- A-l -
PROPOSITION 215 (HEALTH & SAFETY CODE
11362.5)
SECTION 1. Section 11362.5 is added to
the Health & Safety Code to read:
11362.5 (a) This section shall be known
and may be cited as the Compassionate Use
Act of 1996.
(b) (1) The people of the State of
California hereby find and declare that
the purposes of the Compassionate Use Act
of 1996 are as follows:
(A) To ensure that seriously ill
Californians have the right to obtain and
use marijuana for medical purposes where
that medical use is deemed appropriate
and has been recommended by a physician
who has determined that the person's
health would benefit from the use of
marijuana in the treatment of cancer,
anorexia, AIDS, chronic pain, spasticity,
glaucoma, arthritis, migraine, or any
other illness for which marijuana
provides relief.
(B) To ensure that patients and their
primary care-
givers who obtain and use marijuana for
medical purposes upon the recommendation
of a physician are not subject to
criminal prosecution or sanction.
(C) To encourage the federal and state
governments to implement a plan to
provide for the safe and affordable
distribution of marijuana to all patients
in medical need of marijuana.
(2) Nothing in this act shall be
construed to supersede legislation
prohibiting persons from engaging in
conduct that endangers others nor to
condone the diversion of marijuana for
nonmedical purposes.
(c) Notwithstanding any other provision
of law, no physician in this state shall
be punished, or be denied any right or
privilege, for having recommended
marijuana to a patient for medical
purposes.
- A-2 -
PROPOSITION 215 (CONTINUED):
(d) Section 11357, relating to the
possession of marijuana, and Section
11358, relating to the cultivation of
marijuana, shall not apply to a patient,
or to a patient's primary care-giver, who
possesses or cultivates marijuana for the
personal medical purposes of the patient
upon the written or oral recommendation
or approval of a physician.
(e) For the purposes of this section,
"primary care-giver" means the individual
designated by the person exempted under
this act who has consistently assumed
responsibility for the housing, health,
or safety of that person.
SECTION 2. If any provision of this
measure or the application thereof to any
person or circumstance is held invalid,
that invalidity shall not affect other
provisions or applications of the
measure which can be given effect without
the invalid provision or application, and
to this end, the provisions of this
measure are severable.
- A-3 -