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Court: Federal Government Cannot Prohibit
Patients’ Use of Medical Marijuana

Yesterday (Dec. 16, 2003), a federal appeals court ruled that federal drug laws prohibiting the use or cultivation of marijuana are unconstitutional when applied to medical patients in California who are using marijuana with their doctor’s approval. The momentous decision by the United States Court of Appeals for the Ninth Circuit has far reaching implications and can potentially apply to similarly situated patients in the six other states that allow the use of medical marijuana within the Ninth Circuit (Alaska, Arizona, Hawaii, Nevada, Oregon and Washington).

The court held that the cultivation, possession, or use of marijuana for personal medical purposes cannot be prohibited under federal law so long as it:

          · Occurs entirely intrastate (within one state),         

          · Is non-commercial, and

          · Is on the advice of a physician in accordance with state law.

The decision turns on the limits of Congress’s power to legislate under the Commerce Clause of the Constitution. Traditionally, the power to police crimes is reserved to the states. The federal government may regulate only those activities that have an effect on interstate commerce. Thus, federal laws that prohibit marijuana and other drugs have been justified on the ground that these drugs commonly move across state lines and are therefore in “interstate commerce.”

The Ninth Circuit found the patients’ medical use of marijuana did not touch on interstate commerce because the marijuana in question was: locally grown; never sold nor intended for sale; and used on the advice of a doctor in accordance with California law.

In an earlier decision, the United States Supreme Court ruled that Congress can properly regulate conduct occurring entirely within a state if it bears a substantial relationship to interstate commerce. But the Supreme Court explicitly left open the question of whether personal use of medical marijuana bears such a relationship to interstate commerce when it decided the Oakland Cannabis Buyers Club case two years ago.

Legal observers expect the case (Raich v. Ashcroft) will be appealed to the Supreme Court, finally allowing the high court to decide the issue.

The CCLE will seek to join the case as an amicus party before the Supreme Court.

The opinion in Raich v. Ashcroft is available online.