US v. Morrison

[JFN]

At 6:26 PM -0400 10/25/05, Bernard Bell wrote:
>Do you really think that Gonzalez goes so far as to discard Morrison 
>and Lopez?  Gonzales seems clearly distinguishable to me for reasons 
>that the majority identifies.  Production, transfer, and consumption 
>of a commodity that could be sold in an existing interstate market 
>is commercial activity in a way that engaging in a criminal assault 
>or merely possessing a gun is not.  Moreover, if Congress is to 
>effectively prohibit the sale and production of sale of marijuana 
>generally (which is unquestionably commercial in nature), it 
>certainly seems necessary to regulate even cultivation and 
>consumption of marijuana for personal use.  I would agree that the 
>reasoning of the majority in Gonzales does not incorporate a 
>generous reading of Lopez and Morrison.

Raich should have been an easy case, and if it had come up on a 
complete record, rather than on review of the denial of a preliminary 
injunction on no record at all, the most generous reading of Morrison 
and Lopez wouldn't have helped.

O'Connor's portrait of a sick old lady weeding her garden and 
gardening her weed blinks reality. Even while it remains a Schedule 1 
drug, medical marijuana is a multi-million dollar industry in 
California. One website, devoted to "Everything you always wanted to 
know about medical marijuana," lists over 100 "cannabis clubs" in 
California. These "clubs" are charging street prices of 
$350-450/ounce, and they are selling pot cultivated with expensive 
hydroponic systems manufactured and distributed in interstate 
commerce from seeds produced by potent varietals imported from Asia. 
The same website promises "Over 1.2 Million Patient Hits Every Month" 
and offers "The Best Rates on the Web" for advertising, which 
includes growing systems from across the country and seeds from 
around the world. The website's 900 webpages includes "Cash and Money 
Laundering - A Primer" ("Ok, so you've sold a bunch of weed. What do 
you do with the money?").

O'Connor's conclusion that the affect on interstate commerce is 
"not-self-evident" embraces the much less evident premise that 
"marijuana is highly unusual among the substances subject to the CSA 
in that it can be cultivated without any materials that have traveled 
in interstate commerce." Says who? California is a big state with a 
lot of resources. You could certainly find everything you need to 
produce LSD and methamphetamine in California; and you could probably 
grow psylocibin mushrooms or peyote, just as well as marijuana, in a 
controlled indoor environment in California. What would you need that 
you couldn't find in California to grow poppies or coca and produce 
heroin or cocaine? I'd be surprised to discover a single Schedule 1 
substance that couldn't theoretically be produced in California 
"without any materials that have traveled in interstate commerce."

Thomas' dissent minimized the impact on interstate commerce by 
emphasizing that medical marijuana would only be available to 
"seriously ill Californians" suffering from conditions "such as 
cancer, AIDS, or arthritis." But this too blinks reality. The 
California law allows the use of marijuana to treat any "serious 
medical condition," which is defined by reference to the ADA -- 
conditions that limit major life activities. The American Alliance 
for Medical Cannabis includes anxiety disorders, depression, 
migraines, arthritis, inflammation, and "aversive memories" among the 
"common medical uses" for marijuana. According to one researcher, 
"physicians who routinely prescribe Vicodin, Tylox, Prozac, Paxil, 
Wellbutrin, Ativan, Valium, Ambien, and similar drugs ... might 
reasonably recommend a trial of [marijuana] instead." Other clinical 
studies and case reports suggest that it may be useful in treating 
alcoholism, menopause, bladder dysfunction, asthma, Tourette 
syndrome, cystic fibrosis, ulcerative colitis, sleep-related apnea, 
and Alzheimer's disease.

Even if we were only talking about making it available in California, 
medical marijuana would have a substantial affect on the interstate 
pharmaceutical industry if it was routinely prescribed just for 
anxiety and depression in lieu of chemical SRIs manufactured and 
distributed in interstate commerce by the pharmaceutical industry 
under heavy federal regulation. Even if we were only talking about 
California, the interstate insurance companies would have to extend 
prescription drug coverage to medical marijuana or abandon 
market-share to competitors who did; and those that did would have to 
carve out a discrete market with different premiums for prescription 
drug coverage in California or spread the cost across state lines. 
But we aren't talking about just California. What we're talking about 
here is a constitutional rule that would permit the creation of 50 
different regulatory regimes for the intrastate production and 
distribution of pharmaceuticals. Think about "therapeutic 
thalidomide" instead of "medical marijuana." I'm an ardent fan of the 
"laboratory of federalism," but 51 FDA's deciding which herbs and 
potions are safe and effective for what medical conditions is lunacy.

There are three stakeholders who would be really harmed (unlike the 
more outspoken moralists) by the decriminalization of marijuana -- 
the pharmaceutical oligopoly that would be unable to centralize 
production and control distribution; the insurance industry that 
would have to compete or collude in price and coverage and tailor 
insurance coverage to different state laws; and the producers and 
distributors of contraband marijuana whose profits would be flattened 
by legal competition. If any of those stakeholders had made their 
case as amicus, the substantial effect on interstate and foreign 
commerce would have been more apparent, but so would the case for 
federal decriminalization. If Raich had won, it would have been fun 
to re-read O'Connor's opinion for the majority after Con-Agra's stock 
shot up 30% on the announcement that it was converting 500,000 acres 
in California from lettuce (.29/lb wholesale?) to marijuana ($1299/lb 
wholesale?).

John Noble