The opinions in Ashcroft v. Raich

[JFN]

At 11:44 AM -0500 6/6/05, David Cruz wrote:
>Could someone please remind me of the substantive due process claim not
>reached by the Court of Appeals?
>
>-David B. Cruz, Prof. of Law, USC Law School (Calif.)

The memorandum in support of a preliminary 
injunction in the district court argued:

"Unless the Due Process Clause guarantees the 
unfettered communication and the freedom to act 
on physician advice concerning the treatment of 
serious illness, the related fundamental rights 
of bodily integrity, freedom from pain and 
suffering and prolonging life will be rendered 
nugatory."
http://news.findlaw.com/hdocs/docs/drugs/raichashcrft102902mem.pdf.

But the interesting substantive due process claim 
is a lot simpler -- that the Schedule I 
classification of marijuana is utterly 
irrational. The majority opinion reads like an 
engraved invitation.

>"Respondents Angel Raich and Diane Monson are 
>California residents who suffer from a variety 
>of serious medical conditions and have sought to 
>avail themselves of medical marijuana pursuant 
>to the terms of the Compassionate Use Act. They 
>are being treated by licensed, board-certified 
>family practitioners, who have concluded, after 
>prescribing a host of conventional medicines to 
>treat respondents' conditions and to alleviate 
>their associated symptoms, that marijuana is the 
>only drug available that provides effective 
>treatment. Both women have been using marijuana 
>as a medication for several years pursuant to 
>their doctors' recommendation, and both rely 
>heavily on cannabis to function on a daily 
>basis. Indeed, Raich's physician believes that 
>forgoing cannabis treatments would certainly 
>cause Raich excruciating pain and could very 
>well prove fatal.
>
>			*       *       *
>
>The case is made difficult by respondents' 
>strong arguments that they will suffer 
>irreparable harm because, despite a 
>congressional finding to the contrary, marijuana 
>does have valid therapeutic purposes. The 
>question before us, however, is not whether it 
>is wise to enforce the statute in these 
>circumstances; rather, it is whether Congress' 
>power to regulate interstate markets for 
>medicinal substances encompasses the portions of 
>those markets that are supplied with drugs 
>produced and consumed locally.
>
>			*       *       *
>
>In enacting the CSA [in 1970], Congress 
>classified marijuana as a Schedule I drug.  21 
>U.S.C. § 812(c). This preliminary classification 
>was based, in part, on the recommendation of the 
>Assistant Secretary of HEW "that marihuana be 
>retained within schedule I at least until the 
>completion of certain studies now underway."22 
>Schedule I drugs are categorized as such because 
>of their high potential for abuse, lack of any 
>accepted medical use, and absence of any 
>accepted safety for use in medically supervised 
>treatment. §812(b)(1)."
>
>			*       *        *
>
>"We do note, however, the presence of another 
>avenue of relief. As the Solicitor General 
>confirmed during oral argument, the statute 
>authorizes procedures for the reclassification 
>of Schedule I drugs."
>

It strikes me that if "wait, we're not sure yet" 
was a rational basis for concluding in 1970 that 
marijuana has a "high potential for abuse" and 
"no currently accepted medical use," that 
rational basis has evaporated in the last 35 
years. Whether marijuana returns to the Supreme 
Court on review of another DEA order denying 
reclassification, or on appeal of a federal 
conviction for possession or distribution, my 
reading of Raich is that the Court went out of 
its way to draw a road-map and to acknowledge 
that marijuana's currently accepted medical use 
is virtually indisputable. The APA case is easy, 
but what if the decision below vacated a sentence 
that was based on the statutory classification; 
and it was written by Circuit Court Judge Janice 
Rogers Brown, who spotted the opportunity to show 
that the evils of Lochner, like the evils of 
marijuana, have been so wildly exaggerated that 
their benefits are irrationally discounted.

John Noble