Marijuana for Medical Purposes: The Supreme Court's Decision in United States v. Oakland Cannabis Buyers' Cooperative and Related Legal Issues

CRS Report for Congress
Marijuana for Medical Purposes:
The Supreme Court’s Decision in
United States v. Oakland Cannabis Buyers’
Cooperative and Related Legal Issues
Updated June 14, 2005
Charles Doyle
Senior Specialist
American Law Division

Congressional Research Service ˜ The Library of Congress

Marijuana for Medical Purposes: The Supreme Court’s
Decision in United States v. Oakland Cannabis Buyers’
Cooperative and Related Legal Issues
In United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S.483
(2001), the United States Supreme Court held, without dissent, that there is no
medical necessity defense to the federal law prohibiting cultivation and distribution
of marijuana — even in states which have created a medical marijuana exception to
a comparable ban under state law.
Congress classified marijuana as a Schedule I controlled substance, a
classification it reserved for those substances which have no currently accepted
medical use in the United States. Therefore, the Court concluded, Congress could
hardly have intended to recognize a medical necessity defense for marijuana and
recognition of any such defense would be contrary to Congress’ clear intentions.
The Coop raised three constitutional issues in its brief before the Court. It
suggested that a federal medical marijuana ban would exceed the reach of Congress’
authority to regulate interstate commerce; that such a ban would be contrary to the
constitutional reservation of powers to the people; and that such a ban would be
contrary to the substantive due process rights of patients who use marijuana for
medical reasons. The Court did not address the constitutional issues suggested in the
Coop’s brief because the lower court decision under review did not rule upon them.
Other courts have disagreed over whether enforcement of the ban against physicians
is contrary to their First Amendment right to free speech.
The Court’s description of matters within Congress’ legislative authority under
the commerce clause in United States v. Lopez and United States v. Morrison
indicates that the federal ban on the cultivation, distribution or possession of
marijuana lies within Congress’ prerogatives. The Court confirmed that Congress’
commerce power permits it to ban in-state cultivation and possession of marijuana
for medical purposes in Gonzales v. Raich. Its characterization of the limitations on
the enacting clause in Prinz v. United States and of the circumstances warranting
expanded substantive due process recognition in Washington v. Glucksberg
encumber the Coop’s contentions on those counts.
Related legislative activity in this Congress includes a proposal for an exception
to the federal prohibitions in those states whose laws allow use of marijuana for
medicinal purposes (H.R. 2087).

In troduction ..................................................1
Background ..................................................1
Supreme Court’s Coop Decision..................................2
Constitutional Issues...........................................4
Raich & the Commerce Clause...................................5
Enactment clause..............................................8
Due Process Clause............................................9
Free Speech.................................................11
Related Legislative Activity.....................................12

Marijuana for Medical Purposes: The
Supreme Court’s Decision in United States
v. Oakland Cannabis Buyers’ Cooperative
and Related Legal Issues
There is no medical necessity defense to the federal crimes of cultivating or
distributing marijuana. So said the Supreme Court in United States v. Oakland
Cannabis Buyers’ Cooperative, 532 U.S. 483, 486 (2001). The Court left undecided
questions over whether a necessity defense might be available for possession and
over possible enactment clause, and due process clause challenges. In Gonzales v.
Raich, 125 S.Ct. 2195 (2005), it rejected the suggestion that purely local cultivation
or possession of marijuana for medical purposes rested beyond Congress’s reach
under the commerce clause.
The federal Controlled Substances Act (CSA) outlaws the cultivation,
distribution, or possession of marijuana, 21 U.S.C. 841, 844.1 The ban is a
component of federal and state schemes which regulate the sale and possession of
drugs and other controlled substances. The State of California has created a medical

1 Strictly speaking, sections 841 and 844 proscribe the unlawful manufacture, distribution,
dispensing, or possession of controlled substances. Marijuana is classified as a Schedule
I controlled substance, 21 U.S.C. 812(c), Sch.I(c)(10). “Manufacturing” means “production,
preparation, propagation, compounding or processing,” 21 U.S.C. 802(15), and “production”
includes “planting, cultivation, growing, or harvesting of a controlled substance,” 21 U.S.C.
802(22). Schedule I is reserved for those controlled substances which (A) have “a high
potential for abuse,” (B) have “no currently accepted medical use in treatment in the United
States,” and (C) for which “[t]here is a lack of accepted safety for use . . . under medical
supervision,” 21 U.S.C. 812(b)(1). Consequently, physicians may not ordinarily prescribe
Schedule I controlled substances, 21 U.S.C. 829 (prescriptions for Schedule II, III, IV and
V controlled substances), and manufacturing and distributing Schedule I controlled
substances for research purposes is tightly regulated, 21 U.S.C. 822, 823. The Attorney
General, acting with the benefit of the recommendations of the Secretary of Health and
Human Services, is authorized to assign and reassign substances to the appropriate
schedules, 21 U.S.C. 811. An abbreviated form of this report is available as CRS Report
RS20998, Marijuana for Medical Purposes: A Glimpse of the Supreme Court’s Decision
in United States v. Oakland Cannabis Buyers’ Cooperative and Related Legal Issues.
Penalties authorized for CSA violations discussed in CRS Report 97-141, Drug Smuggling,
Drug Dealing and Drug Abuse: Background and Overview of the Sanctions Under the
Federal Controlled Substances Act and Related Statutes.

necessity exception to its marijuana prohibitions, CAL.HEALTH & SAFETY CODE
ANN. §11362.5.2 The Oakland Cannabis Buyers Cooperative (the Coop) was one of
the entities which dispensed marijuana to patients qualified to receive it under state
Federal authorities sued to enjoin cultivation and distribution of marijuana in
violation of federal law by the Coop and its suppliers. The federal district court
granted a preliminary injunction, United States v. Cannabis Cultivators Club, 5
F.Supp. 2d 1086 (N.D.Cal. 1998), which the Court of Appeals overturned for failure
to consider an implicit medical necessity defense, United States v. Oakland Cannabis
Buyers Cooperative, 190 F.3d 1109 (9th Cir. 1999).
The necessity or “choice of evils” defense has been recognized by a number of
other lower federal appellate courts.3 The Supreme Court seemed to verify its
vitality, at least indirectly, when it described the prerequisites for the defense to an
escape charge: “where a criminal defendant is charged with escape and claims that
he is entitled to an instruction on the theory of duress or necessity, he must proffer
evidence of a bona fide effort to surrender or return to custody as soon as the claimed
. . . necessity has lost its coercive force,” United States v. Bailey, 444 U.S. 394, 415
Supreme Court’s Coop Decision
The Coop argued that necessity, as a common law defense, was an implicit
exception to the CSA’s prohibitions. No member of the Supreme Court agreed, 532
U.S. at 490.4 In fact, a majority questioned the very existence of a federal necessity
defense,5 although as the concurring opinion points out, the case holds no more than
that there is no necessity defense to the federal proscription on the cultivation or
distribution of marijuana.6

2 Several other states have “medical marijuana” laws, ALASKA STAT. §11.71.090;
§§329-121 to 329-128; MD. CRIM.CODE ANN. §5-601; ME.REV.STAT.ANN. tit.22 §1102 or
2382-B(5); NEV.REV.STAT.ANN. §§453A.010 to 453A.400; ORE.REV.STAT. §§475.300 to

475.346; WASH.REV.CODE ANN. §§69.51A.005 to 69.51A.902.

3 E.g., United States v. Duclos, 214 F.3d 27, 33 (1st Cir. 2000); United States v. Unser, 165
F.3d 755, 764 (10th Cir. 1999); United States v. Milligan, 17 F.3d 177, 181 (6th Cir. 1994).
4 Justice Thomas wrote the opinion for the Court; Justice Stevens submitted a concurrence
in which Justices Souter and Ginsburg joined; Justice Breyer took no part in consideration
of the case.
5 “As an initial matter we note that it is an open question whether federal courts ever have
authority to recognize a necessity defense not provided by statute . . . .We need not decide,
however, whether necessity can ever be a defense when the federal statute does not
expressly provide for it. In this case, we need only recognize that a medical necessity
exception for marijuana is at odds with the terms of the Controlled Substances Act. The
statute, to be sure, does not explicitly abrogate the defense. But its provisions leave no
doubt that the defense is unavailable,” 532 U.S. at 490-91.
6 “Lest the Court’s narrow holding be lost in its broad dicta, let me restate it here: ‘[W] e
hold that medical necessity is not a defense to manufacturing and distributing marijuana’

On the basic point, the members of the Court were of one mind — Congress in
the CSA addressed and rejected the very exception for which the Coop sought
recognition. Congress outlawed manufacturing or distributing controlled substances
except as authorized in the Act, 21 U.S.C. 841(a)(1). The only authorized exception
for Schedule I controlled substances, such as marijuana, is government approved
research, 21 U.S.C. 823(f); the Coop did not argue that it was engaged in government
approved research; there is no other explicit exception for marijuana.
But the federal necessity defense is a creature of common law, frequently
assumed if rarely cited by name, and Congress did not reject it by name. Yet
Congress did limit Schedule I to those controlled substances with “no currently
accepted medical use,” 21 U.S.C. 812(b)(1)(B). It assigned marijuana to Schedule
I, 21 U.S.C. 812(c). Thus, “[i]t is clear from the text of the Act that Congress has
made a determination that marijuana has no medical benefits worthy of an exception.
The statute expressly contemplates that many drugs ‘have a useful and legitimate
medical purpose and are necessary to maintain the health and general welfare of the
American people,’ §801(a), but it includes no exception at all for any medical use of
marijuana. Unwilling to view this omission as an accident, and unable in any event
to override a legislative determination manifest in a statute, [the Court] reject[ed] the
Cooperative’s argument,” 532 U. S. at 493.
The clarity of Congress’s rejection of a medical necessary defense doomed the
Coop’s invocation of the constitutional avoidance doctrine, a canon of statutory
construction available only in cases of ambiguity, Id.7 The Court declined to consider
the constitutional issues which might have called for avoidance in the face of an
ambiguity because the lower court had not raised them, 532 U.S. at 493.

Ante, at 494 (emphasis added). . . . Apart from its limited holding, the Court takes two
unwarranted and unfortunate excursions that prevent me from joining its opinion. First, the
Court reaches beyond its holding . . . by suggesting that the defense of necessity is
unavailable for anyone under the Controlled Substances Act. . . . [W]hether the defense
might be available to a seriously ill patient for whom there is no alternative means of
avoiding starvation or extraordinary suffering is a difficult issue that is not presented here.
“Second, the Court gratuitously casts doubt on <whether necessity can ever be a
defense’ to any federal statute that does not explicitly provide for it, calling such a defense
into question by a misleading reference to its existence as an <open question.’ By contrast
our precedent has expressed no doubt about the viability of the common-law defense, even
in the context of federal criminal statutes that do not provide for it in so many words. See,
e.g., United States v. Bailey,” 532 U.S. at 499-501 (Stevens, J., concurring in the
7 Under constitutional avoidance, “where a statute is susceptible of two constructions, by
one of which grave and doubtful constitutional questions arise and by the other of which
such questions are avoided, [the Court will] adopt the latter,” Jones v. United States, 526
U.S. 227, 239 (1999).

Constitutional Issues
Although the Court set them aside, the Coop’s brief presented commerce clause,
enactment clause and due process clause issues.8 The commerce clause, in
conjunction with the enactment or necessary and proper clause, empowers Congress
to enact legislation regulating interstate and foreign commerce.9 Congress passed the
Act, at least in part, as an exercise of its powers under the common clause.10

8 Brief for Respondents at 37-49, United States v. Oakland Cannabis Buyers’ Cooperative,

532 U.S. 483 (2001) (No. 00-151) (Brief).

9 U.S.Const. Art.I, §8, cls.3, 18 (“The Congress shall have Power . . . To regulate
Commerce with foreign Nations, and among the several States, and with the Indian Tribes
. . . And To make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers and all other Powers vested by this Constitution in the Government
of the United States, or in any Department or Officer thereof”).
10 21 U.S.C. 801(“The Congress makes the following findings and declarations . . . (3) A
major portion of the traffic in controlled substances flows through interstate and foreign
commerce. Incidents of the traffic which are not an integral part of the interstate or foreign
flow, such as manufacture, local distribution, and possession, nonetheless have a substantial
and direct effect upon interstate commerce because — (A) after manufacture, many
controlled substances are transported in interstate commerce, (B) controlled substances
distributed locally usually have been transported in interstate commerce immediately before
their distribution, and (C) controlled substances possessed commonly flow through interstate
commerce immediately prior to such possession. (4) Local distribution and possession of
controlled substances contribute to swelling the interstate traffic in such substances. (5)
Controlled substances manufactured and distributed intrastate cannot be differentiated from
controlled substances manufactured and distributed interstate. Thus, it is not feasible to
distinguish, in terms of controls, between controlled substances manufactured and
distributed interstate and controlled substances manufactured and distributed intrastate. (6)
Federal control of the intrastate incidents of the traffic in controlled substances is essential
to the effective control of the interstate incidents of such traffic. . .”).
Other findings and declarations indicate Congress called upon its legislative powers
to tax and spend for the general welfare of the United States, U.S.Const. Art.I, §8, cl.1, and
to fulfill our obligations under treaties to which we are party, U.S.Const. Art.I, §8, cl.18;
Art.II, §2, cl.2: The Congress makes the following findings and declarations: “(1) Many of
the drugs included within this subchapter have a useful and legitimate medical purpose and
are necessary to maintain the health and general welfare of the American people. (2) The
illegal importation, manufacture, distribution, and possession and improper use of controlled
substances have a substantial and detrimental effect on the health and general welfare of the
American people. . . . (7) The United States is a party to the Single Convention on Narcotic
Drugs, 1961, and other international conventions designed to establish effective control over
international and domestic traffic in controlled substances,” 21 U.S.C. 801(1),(2),(7). The
Single Convention obligates Parties to prohibit cultivation of marijuana in order to protect
the public health and welfare and prevent the diversion into illicit channels, Art. 22, 18
U.S.T. 1408, 1419 (1961).

Raich & the Commerce Clause
The Court seems to have put the commerce clause question to rest in Gonzales
v. Raich, 125 S.Ct. 2195 (2005). Congress’s commerce clause powers are substantial
but not unlimited. The Court summarized the scope of those powers in Lopez and
Morrison, two instances where the commerce clause was found insufficient to
support a claim of legislative authority. “First, Congress may regulate the use of the
channels of interstate commerce. Second, Congress is empowered to regulate and
protect the instrumentalities of interstate commerce, or persons or things in interstate
commerce, even though the threat may come only from intrastate activities. Finally,
Congress’s commerce authority includes the power to regulate those activities having
a substantial relation to interstate commerce, . . . i.e., those activities that
substantially affect interstate commerce,” United States v. Morrison, 529 U.S. 598,
609 (2000), quoting, United States v. Lopez, 514 U.S. 549, 558-59 (1995)(internal
citations omitted).
Recognizing that the boundaries of this last category of commerce clause power,
intrastate activity with an interstate impact, are not always easily identified, Morrison
and Lopez identified some of the signs which reveal that a regulated activity may in
fact have no significant impact on interstate commerce. “First, we observed that
§922(q) [the section at issue in Lopez] was a criminal statute that by its terms has
nothing to do with commerce or any sort of economic enterprise, however broadly
one might define those terms,” 529 U.S. at 610. “The second consideration that we
found important . . . was that the statute contained no express jurisdictional element
which might limit its reach to a discrete set of firearms possessions that additionally
have an explicit connection with or effect on interstate commerce,” 529 U.S. at 611-
12. “Third, we noted that neither §922(q) nor its legislative history contains express
congressional findings regarding the effects upon interstate commerce of gun
possession in a school zone,” 529 U.S. at 612. “Finally, our decision in Lopez rested
in part on the fact that the link between gun possession and a substantial effect on
interstate commerce was attenuated,” 529 U.S. at 612.
The Coop argued that “[o]nly the cultivation and distribution of cannabis in
exchange for money or barter can be considered commerce, but even such commerce
here is exclusively intrastate and therefore not within the power of Congress to
regulate commerce among the states,” Brief at 39.
Yet the Act, including its proscriptions on the cultivation, distribution and
possession of marijuana, appears to be within the Congress’s commerce clause
powers as described in Lopez and Morrison. They identify as indicative of criminal
statutes beyond the clause’s reach those which purport to punish activities that have
“nothing to do with commerce or any sort of economic enterprise.” As the Coop’s
very name (Oakland Cannabis Buyers’) indicates, cultivation, distribution, or
possession of marijuana almost always involves or is closely linked to some form of
commercial activity — particularly if distribution requires the participation of
physicians and health care insurers.
Moreover, while not necessarily dispositive by itself, Congress’s findings with
respect to the interstate impact of the distribution and possession of controlled
substances (including marijuana) provide further evidence that the Act does not

exceed the authority granted by the commerce clause. Until recently, the lower
federal appellate courts when faced with challenges based on Lopez had unanimously
concluded that the Act is within Congress’s legislative authority under the commerce
cl ause. 11
A divided panel in the Ninth Circuit, however, concluded that a party seeking
to enjoin enforcement of the Act had shown her constitutional challenge was likely
to succeed. That is, the court was convinced that “the application of the Act to the
intrastate, noncommercial cultivation and possession of cannabis for personal
medical purposes as recommended by a patient’s physician pursuant to valid
California state law” likely exceeded Congress’s authority under the commerce
clause, Raich v. Ashcroft, 352 F.3d 1222, 1229 (9th Cir. 2003). The dissent argued
that the issue was controlled by the Supreme Court’s decision in Wickard v. Filburn,
317 U.S. 111 (1942),12 352 F.3d at 1235, a standard whose continued vitality the
Supreme Court seemed to confirm when it cited Wickard approvingly in both Lopez

11 E.g., United States v. Edwards, 98 F.3d 1364, 1369 (D.C.Cir. 1996); United States v.
Lerebours, 87 F.3d 582, 584-85 (1st Cir. 1996); Proyect v. United States, 101 F.3d 11, 13
(2d Cir. 1996)(“the cultivation of marijuana for personal consumption most likely does
substantially affect interstate commerce. This is so because it supplies a need of the man
who grew it which would otherwise be reflected by purchases in the open market. As such,
there is no doubt that Congress may properly have considered that marijuana consumed on
the property where grown if wholly outside the scheme of regulation would have a
substantial effect on interstate commerce”); United States v. Orozco, 98 F.3d 105, 106-107
(3d Cir. 1996); United States v. Leshuk, 65 F.3d 1105, 1111-112 (4th Cir. 1995)(“Leshuk
contends that the Drug Act is unconstitutional because it regulates intrastate drug activities,
such as the marijuana manufacture in this case, which do not substantially affect interstate
commerce . . . . We . . . reject Leshuk’s Commerce Clause challenge to the constitutionality
of the Drug Act”); United States v. Dixon, 132 F.3d 192, 202 (5th Cir. 1997); United States
v. Tucker, 90 F.3d 1135, 1139-141 (6th Cir. 1996); United States v. Westbrook, 125 F.3d
996, 1008 (7th Cir. 1997); United States v. Bell, 90 F.3d 318, 321 (8th Cir. 1996); United
States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995); United States v. Jackson, 111 F.3d
101, 101-102 (11th Cir. 1997). The Ninth Circuit had previously rejected a commerce
clause challenge in a trafficking context, United States v. Kim, 94 F.3d 1247, 1249 (9th Cir.
1996); see also, United States v. Rosenthal, 266 F.Supp.2d 1068 (N.D.Cal. 2003)(decided
before Raich, and rejecting a commerce clause challenge, inter alia, by a marijuana farmer
“authorized” by local officials to provide marijuana for medicinal purposes).
12 “In Wickard v. Filburn, the Court upheld the application of amendments to the
Agricultural Adjustment Act of 1938 to the production and consumption of homegrown
wheat. The Wickard Court explicitly rejected earlier distinctions between direct and indirect
effects on interstate commerce, stating: ‘Even if appellee’s activity be local and through it
may not be regarded as commerce, it may still, whatever its nature, be reached by Congress
if it exerts a substantial economic effect on interstate commerce, and this irrespective of
whether such effect is what might at some earlier time have been defined as direct or
indirect.’ The Wickard Court emphasized that although Filburn’s own contribution to the
demand for wheat may have been trivial by itself, that was not ‘enough to remove him from
the scope of federal regulation where, as here, his contribution taken together with that of
many others similarly situated, is far from trivial,’” United States v. Lopez, 514 U.S. 549,

556 (1995)(internal citations omitted).

and Morrison.13 The majority, however, felt that “as the regulated activity in this
case is not commercial, Wickard’s aggregation analysis is not applicable.”14 The
Supreme Court in 6-3 decision written by Justice Stevens, agreed with the Ninth
Circuit dissenter, Gonzales v. Raich, 125 S.Ct. 2195 (2005). Under the commerce
and necessary and proper clauses, Congress may regulate so much of purely local
conduct as it may rationally conclude is appropriate to its regulation of matters of
interstate or foreign commerce.
“In Wickard,” the Court concluded that “Congress had a rational basis for
believing that, when viewed in the aggregate, leaving home-consumed wheat outside
the regulatory scheme would have a substantial influence on price and market
conditions,” 125 S.Ct. at 2207. In much the same way the Court felt, “Congress had
a rational basis for concluding that leaving home-consumed marijuana outside federal
control would similarly affect price and market conditions,” 125 S.Ct. at 2207.
More specifically, the Court had “no difficulty concluding that Congress had a
rational basis for believing that failure to regulate the intrastate manufacture and
possession of marijuana would leave a gaping hole in the CSA” in light of “the
enforcement difficulties that attend distinguishing between marijuana cultivated
locally and marijuana grown elsewhere” as well as “concerns about diversion into
illicit channels,” 125 S.Ct. at 2209. “Thus, as in Wickard, when it enacted
comprehensive legislation to regulate the interstate market in a fungible commodity,
Congress was acting well within its authority to ‘make Laws which shall be necessary
and proper’ to ‘regulate Commerce . . . among the several States.’ U.S.Const. Art. I,
§8. That the regulation ensnares some purely intrastate activity is of no moment,”

125 S.Ct. at 2209.

Even if Congress had lacked the legislative authority to ban cultivation,
distribution and possession of marijuana under the commerce clause, its legislative

13 “Reviewing our case law, we noted that ‘we have upheld a wide variety of congressional
Acts regulating intrastate economic activity where we have concluded that the activity
substantially affected interstate commerce.’ Although we cited only a few examples,
including Wickard v. Fulburn, we stated that the pattern of analysis is clear. ‘Where
economic activity substantially affects interstate commerce, legislation regulating that
activity will be sustained.’ . . . Even Wickard, which is perhaps the most far reaching
example of Commerce Clause authority over intrastate activity, involved economic activity.
. . .” United States v. Morrison, 529 U.S. 598, 610 (2000), quoting, United States v. Lopez,

514 U.S. at 559, 560 (some internal citations omitted).

14 It is difficult to discern how Filburn’s growing wheat for his own consumption is different
than the patient’s growing marijuana for his own consumption. Triggered and dependent
upon the endorsement of a physician (in an admirable but nonetheless commercial
relationship) and involving an alternative to the commercial market in marijuana, the
practices of medical users might be considered by some to have an impact on either the
commerce that is the medical profession or that which is the marijuana market.
Implicit in the Ninth Circuit’s terse assessment may be the belief that given the
opportunity the Supreme Court will decide that Wickard lies not just within, but just beyond,
the reach of Congress’s commerce clause power. Not so.

authority to implement our various treaty obligations for the suppression of illicit
controlled substances would probably be sufficient.15
Enactment clause
When Congress enjoys legislative subject matter jurisdiction, such as the power
to regulate interstate and foreign commerce, it may nevertheless elect to pass laws
which exceed what is constitutionally “proper” under the implementary necessary
and proper or enacting clause. For instance, legislation is not “proper for carrying
into execution” constitutionally vested powers, such as those under the commerce
clauses, when it seeks to “compel the states to enact or enforce a federal regulatory
program” or to when it issues “directives requiring the states to address particular
problems, [or] command[s] the states’ officers, or those of their political
subdivisions, to administer or enforce a federal regulatory program,” Printz v. United
States, 521 U.S. 898, 924, 934 (1997), citing, New York v. United States, 505 U.S.

144 (1992).

The Coop argued that Congress is not acting in the necessary and proper
exercise of its legislative authority when it acts in total derogation of rights which the
people of a given state have identified as fundamental unenumerated constitutional
rights, Brief at 45-9.16
The contention may have helped spur the three concurring members of the Court
to urge at least a rule of construction that would recognize a medical necessity
defense for marijuana possession.17 The majority’s sweeping dicta and the

15 Perhaps because the courts have rarely found it necessary to look beyond the commerce
clause, the case law on alternative sources of legislative authority is sparse, but it does
include United States v. Rodriquez-Camacho, 468 F.2d 1220, 1222 (9th Cir. 1972)
(“Furthermore, the United States is a party to the Single Convention on Narcotic Drugs
binding, inter alia, all signatories to control persons and enterprises engaged in the
manufacture, trade and distribution of specified drugs. Marijuana (cannabis) is so specified.
Enactment of sec. 841(a)(1) is a permissible method by which Congress may effectuate the
American obligation under the treaty”).
16 “This case represents an intersection of the Tenth and Ninth Amendments. The people
have used the initiative power reserved to themselves under the Tenth Amendment to
recognize a fundmental (sic) liberty interest they have retained under the Ninth Amendment.
By an unwarranted extension of its powers under the Necessary and Proper Clause, the
federal government now seeks to interfere with both the exercise of the power reserved by
the people and the States and the rights retained by the people,” Brief at 48-9.
The Ninth and Tenth Amendments declare, “The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by the people,”
U.S.Const. Amend.IX; and “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to
the people,” U.S.Const. Amend. X.
17 “The overbroad language of the Court’s opinion is especially unfortunate given the
importance of sowing respect for the sovereign States that comprise our Federal Union.
That respect imposes a duty on federal courts, whenever possible, to avoid or minimize
conflict between federal and state law, particularly in situations in which the citizens of the
State have chosen to serve as a laboratory in the trial of novel, social, and economic

accompanying footnote which sparked Justice Stevens’ comments, however, may
reflect the fact that at least five members of the Court found the “necessary and
proper” argument unpersuasive.18
Due Process Clause
Of course, the Coop’s Ninth Amendment fundamental-unenumerated-rights
argument is closely akin to its substantive due process contentions, i.e., that “these
patients have a fundamental right to be free from government interdiction of their
personal self-funded medical decision, in consultation with their physician, to
alleviate their suffering through the only alternative available to them,” Brief at 42-3.
The due process clause “provides heightened protection against government
interference with certain fundamental rights and liberty interests. . . .[I]n addition to
the specific freedoms protected by the Bill of Rights, the liberty specially protected
by the due process clause includes the rights . . . to bodily integrity and to abortion
. . . [and in all likelihood] to refuse unwanted lifesaving medical treatment,”
Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997). The Court, however, has
been reluctant to expand the concept of substantive due process, 521 U.S. at 720, and
has specifically refused to consider physician assisted suicide among the fundamental
liberties so protected, 521 U.S. at 728.
Glucksberg seems to pose a major obstacle to recognition of a right to use
marijuana for medicinal purposes, for it appears to have refused to acknowledge the
right which the Coop claims. The Coop claims patients have “a fundamental right
to be free from government interdiction of their personal self-funded medical
decision, in consultation with their physician, to alleviate their suffering,” Brief at 43.
Glucksberg found that terminally ill patients facing the prospect of a painful death

experiments. . . . By passing Proposition 215, California voters have decided that seriously
ill patients and their primary caregivers should be exempt from prosecution under state laws
for cultivating and possessing marijuana if the patent’s physician recommends using the
drug for treatment. This case does not call upon the Court to deprive all such patients of the
benefit of the necessity defense to federal prosecution, when the case itself does not involve
any such patients,” 532 U.S. at 502 (Stevens, J. concurring in the judgment)(emphasis in the
18 “Lest there be any confusion, we clarify that nothing in our analysis, or the statute,
suggests that a distinction should be drawn between the prohibitions on manufacturing and
distribution and the other prohibitions in the Controlled Substances Act [such as the
prohibition on possession]. Furthermore, the very point of our holding is that there is no
medical necessity exception to the prohibitions at issue, even when the patient is seriously
ill and lacks alternative avenues for relief. Indeed, it is the Cooperative’s argument that its
patients are seriously ill, and lacking alternatives. We reject the argument that these factors
warrant a medical necessity exception. . . . Finally, we share Justice Stevens’ concern for
showing respect for the sovereign states that comprise our federal union. However, we are
construing an Act of Congress, not drafting it. Because federal courts interpret, rather than
author, the federal criminal code, we are not at liberty to rewrite it. Nor are we passing
today on a constitutional question, such as whether the Controlled Substances Act exceeds
Congress’s power under the commerce clause,” 532 U.S. at 494-94 n.7.

have no due process right to the assistance of their physicians to secure and assist in
the administration of painless but fatal substances to alleviate their suffering.
Beyond this, the Glucksberg expansion tests are not particularly helpful. They
require that those rights within the ambit of due process protection consist of “those
fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s
history and tradition, and implicit in the concept of order liberty, such that neither
liberty nor justice would exist if they were sacrificed,” 521 U.S. at 720-21. The
history of the Coop’s asserted right is arguable exactly the opposite. It is a history
replete with government regulation of the practice of medicine, of the distribution
and use of medicinal products, of controlled substances, and of marijuana in
Federal regulation of marijuana as a crime control measure dates back from the
Marihuana Tax Act of 1937, 50 Stat. 551 (1937) by which time every state in the
Union already regulated its sale.19 The Act was modeled after the more general
Harrison Narcotics Act of 1914 under which opium and other narcotics were
regulated.20 Congress passed the earlier Food and Drug Act of 1906 “to prevent the
manufacture, sale or transportation of adulterated, misbranded or poisonous, or
deleterious foods, drugs, medicines, or drugs and for regulating the traffic therein,”
34 Stat. 768 (1906). In more general terms, “the practice of medicine . . . has a long
history of being regulated to protect the public safety.”21
Glucksberg’s dicta seems to further undermine any contention that due process
substantially restricts the federal government’s authority to refuse to legalize
marijuana for medical use. There, the Court cited United States v. Rutherford, 442
U.S. 544, 558 (1979), for the observation that “Congress could reasonably
[determine] to protect the terminally ill, no less than other patients, from the vast
range of self-styled panaceas that inventive minds can devise.”22 Here, Congress
appears to have done just that. It has concluded that marijuana is highly addictive

19 Taxation of Marihuana: Hearing Before a Subcomm. of the Senate Comm. on Finance,
75th Cong., 1st Sess. 9-10 (1937)(testimony and chart accompanying the testimony of
Clinton M. Hester, Assistant General Counsel, Department of the Treasury).
20 H.R.Rep.No. 75-792, at 2 (1937); S.Rep.No. 75-900, at 3 (1937).
21 Pearson v. McCaffrey, 139 F.Supp.2d 113, 121 (D.C.Cir. 2001), quoting the observation
from Whalen v. Roe, 429 U.S. 589, 603 n.30 (1977) that, “It is, of course, well-settled that
the State has broad police powers in regulating the administration of drugs by health
22 Rutherford involved a patients’ suit seeking to enjoin enforcement by the Food and Drug
Administration (FDA) of restrictions on the use of Laetrile by terminally ill cancer patients.
The court of appeals had affirmed the district court’s injunction which directed the FDA to
permit terminally ill cancer patients to use Laetrile, Rutherford v. United States, 582 F.2d
1234, 1237 (1978), concluding that the Federal Food, Drug and Cosmetic Act, which
required FDA approval of the safety and efficacy of new drugs, had no application to drugs
intended for use by the terminally ill. The Supreme Court reversed. It could see nothing in
the Food Act or its legislative history stating or implying that its provisions were limited to
the drugs intended for use by the curably ill or that the drugs intended for the treatment of
the incurably ill were exempted from the its demands. 442 U.S. at 552-57.

and has no accepted medical use, but permits reclassification of marijuana and its
subsequent use when and if its medicinal benefits can be demonstrated under the
procedures of the Controlled Substances Act.23
Free Speech
Although the issue was not raised in Oakland Cannabis Buyers’ Cooperative,
the lower federal courts initially appeared divided over whether the First Amendment
right to free speech shields physicians who prescribe or otherwise recommend
marijuana to their patients. A court in the Northern District of California granted a
preliminary injunction enjoining federal authorities from prosecuting physicians for
such conduct. The order also prohibited federal authorities from revoking the
physicians registration to prescribe controlled substances24 and from excluding them
from Medicare/Medicaid participation25 for such conduct, Conant v. McCaffrey, 172
F.R.D. 681, 701 (N.D.Cal. 1997). The court subsequently made the injunction
permanent in an unpublished opinion, 2000 WL 1281175 (C97-001139
WHA)(N.D.Cal. Sept.7, 2000). It found serious questions as to whether the federal
enforcement policy permitted a content-based restriction on speech and whether it
was unconstitutionally vague, 172 F.R.D. at 694-98.
A court in the District of Columbia, on the other hand, refused to issue a similar
injunction, Pearson v. McCaffrey, 139 F.Supp.2d 113, 125 (D.D.C. 2001). From the
court’s perspective, “there are no First Amendment protections for speech that is used
as an integral part of conduct in violation of a valid criminal statute,” 139 F.Supp.2d
at 121. Therefore, “[e]ven though state law may allow for the prescription or
recommendation of medicinal marijuana within its borders, to do so is still a
violation of federal law. . . . The fact that speech or writing is the mechanism used
by physicians to carry out such a task does not make the conduct less violative of
federal law. The First Amendment does not prohibit the federal government from
taking action against physicians whose prescription or recommendation of medicinal
marijuana violates the [Act],” Id.

23 As in Oakland Cannabis Buyers’ Cooperative, the Court in Raich did not reach the
substantive due process issue: “Respondents also raise a substantive due process claim and
seek to avail themselves of the medical necessity defense. These theories of relief were set
forth in their complaint but were not reached by the Court of Appeals. We therefore do not
address the question whether judicial relief is available to respondents on these alternative
bases,” 125 S.Ct. at 2215.
24 In order to prescribe controlled substances, physicians must be registered with the
Attorney General and their registration (DEA registration number) may be revoked on the
basis of conduct “inconsistent with the public interest,” 21 U.S.C. 824(a)(4). Federal
authorities had indicated that they would consider providing, recommending, or prescribing
marijuana conduct inconsistent with the public interest, 172 F.R.D. at 698.
25 Individuals or entities may be excluded from participation based on “professional
competence, professional performance, or financial integrity,” 42 U.S.C. 1320a-7(b)(5).
Federal authorities had likewise indicated that they would consider providing,
recommending, or prescribing marijuana conduct sufficient for exclusion, 172 F.R.D. at 698.

The Court of Appeals for the Ninth Circuit muted any suggestion of a conflict
in its narrowly couched approval of the district court’s opinion, Conant v. Walters,
309 F.3d 629 (9th Cir. 2002). Federal authorities are enjoined from punishing doctors
simply because the doctors have recommended the use of marijuana to their patients.
Patients might lawfully use the information to support a petition to Congress for a
change in federal law or admission into a federally approved rehabilitation program,
309 F.3d at 634. On the other hand, “[i]f, in making the recommendation, the
physician intends for the patient to use it as the means for obtaining marijuana, as a
prescription is used as a means for a patient to obtain a controlled substance, then a
physician would be guilty of aiding and abetting the violation of federal law” and
could be punished, 309 F.3d at 635.
Related Legislative Activity
State medical marijuana initiatives have provoked a mixed response in Congress
including proposals to:
require the Attorney General to revoke the controlled substance registration of
any practitioner who recommended marijuana for medical purposes;26
bar those who recommend marijuana for medical purposes from participating
in Medicare and state health care programs;27
clarify and increase the penalties applicable to Controlled Substance Act
violations by registrants;28
make mandatory, in those states with a medical marijuana exception, the
discretionary denial of federal benefits for those convicted of controlled
substance offenses;29
make it clear that Controlled Substance Act provisions continue to apply
notwithstanding the massage of state medical marijuana laws;30
provide that the Controlled Substance Act shall supersede any state law with
which it differs;31
study the impact of the California and Arizona medical marijuana initiatives;32
create a federal medical marijuana exception to the Controlled Substances Act
and the Federal Food, Drug and Cosmetic Act in the states with medical
marijuana laws;33

26 H.R. 1310 (105th Cong.)(Rep.Solomon); S. 40 (105th Cong.)(Sen.Faircloth).
27 S. 40 (105th Cong.)(Sen.Faircloth).
28 S. 40 (105th Cong.)(Sen.Faircloth).
29 H.R. 1265 (105th Cong.)(Rep.Solomon).
30 H.R. 3184 (105th Cong.)(Rep.Riggs).
31 H.R. 4802 (106th Cong.)(Rep.Souter).
32 S. 15 (105th Cong.)(Sen.Daschle); S. 2484 (105th Cong.)(Sen.Leahy); S. 9 (106th Cong.)
33 H.R. 1782 (105th Cong.)(Rep.Frank); H.R. 912 (106th Cong.)(Rep.Frank).

prohibit use of funds appropriated for the District of Columbia to conduct any
ballot initiative to legalize or reduce the penalties for violations involving
Schedule I controlled substances;34
prohibit use of funds appropriated for the District of Columbia to enact or
implement any law to legalize or reduce the penalties for violations involving
Schedule I controlled substances (and prohibiting the D.C. medical marijuana
referendum from taking effect); and35
prohibit the recipients of transit grants from promoting the legalization or
medical use of schedule I controlled substances, like marijuana.36
In the 107th Congress, Congressman Frank renewed his proposal for federal
compatibility with state medical marijuana laws under which neither the Act nor the
Federal Food, Drug and Cosmetic Act would bar possession, prescription, dispensing
or cultivating marijuana for medical purposes in those jurisdictions whose states laws
permitted it.37
In the 108th Congress, Congressman Frank offered H.R. 2233 which took much
the same approach. It provided that neither the Controlled Substances Act nor the
Federal Food, Drug and Cosmetic Act should be construed to outlaw the prescription,
use, dispensing, or cultivation of marijuana for medicinal purposes, and it reclassifies
marijuana as a schedule II controlled substance. Thus, as a matter of federal law
marijuana would become available for medical use under stringent controls, but it
would remain unavailable as a matter of state law except in those jurisdictions whose
legislation contains a medical marijuana exemption or defense. H.R. 2233 leaves
unaffected federal, state and local smoking regulations or prohibitions.
Congressman Farr introduced a proposal of comparable effect, H.R. 1717 (108th
Cong.). It would have amended the Controlled Substance Act to provide a medical
marijuana defense (based on state law) for use in prosecutions or proceedings under
the Act and to ensure the prompt return of medical marijuana when the defense is
successfully claimed.

34 P.L. 105-277, 112 Stat. 2681-150 (1998); Turner v. District of Columbia Bd. of Elections
and Ethics, 77 F.Supp.2d 25 (D.D.C. 1999) held that the provision did not bar the Board
from counting, releasing, or certifying the results of the D.C. medical marijuana referendum.
35 P.L. 106-113, 113 Stat. 1530 (1999); P.L. 106-553, 114 Stat. 2762A-34 (2000); P.L. 107-

76, 115 Stat. 923 (2001); P.L. 108-7, 117 Stat. 126 (2003); P.L. 108-199, 118 Stat. 139.

Marijuana Policy Project v. District of Columbia Bd. of Elections and Ethics, 191
F.Supp.2d 196, 199 (D.D.C. Mar. 28, 2002) held that the provision regulated core political
activity on the basis of content and thus its application to the plaintiffs was barred by the
First Amendment. The decision was reversed on appeal; the Barr Amendment does not
unconstitutionally restrict the free speech rights of medical marijuana advocates, Marijuana
Policy Project v. United States, 304 F.3d 82, 83 (D.C.Cir. 2002).
36 P.L. 108-199, 118 Stat. 311 (2004).
37 H.R. 1344 (107th Cong.)(also (a) instructing the National Institute of Drug Abuse to make
marijuana available for an investigative new drug study, and (b) indicating the proposal isth
not intended to supersede laws which regulate smoking in public); H.R. 2592 (107 Cong.)
(also indicating the proposal is not intended to supersede laws which regulate smoking in

The Barr Amendment appeared in both the House-passed and the Senate-
reported versions of the District of Columbia appropriations bill for FY2004, H.R.

2765 (§123); S. 1583 (§126).

Congressman Frank has re-introduced his earlier proposals as H.R. 2087 in the

109th Congress.