14 May 2001
The Marijuana Case
The Supreme Court decision in US v. Oakland Cannabis Buyers' Cooperative today has generated some interesting discussion on the message boards. My initial impression of this decision was that it was unremarkable. The Court was unanimous on the issue presented (which is often the crux of the battle) and the holding: that there is no "medical necessity" exception to a Federal statute prohibiting distribution and manufacture of marijuana (the statute also prohibits possession, but that issue was not presented for adjudication), either by statutory provision or at common law. The statute is unambiguous, and it was an easy decision constitutionally to reach (because there were no grand constitutional issues properly presented). But it's an interesting case to take apart because it is so narrowly decided on the one hand, not decided narrowly enough for one bloc of justices (the liberals -- Blackmun, Ginsburg, and Souter), and of course decided much too narrowly for Oakland Cannabis (whose common law defense was a little bizarre).
Oakland Cannabis suggests that there should be a "medical necessity" exception to the Federal statute on two counts: 1) statutory construction and 2) "necessity" under common law. The discussion of the statute is unremarkable, but the rejection of the (rather bizarre) common law defense is interesting, and Justice Thomas's comments illuminating. The common law argument was a real stretch, but fascinating nonetheless to those of us who enjoy these arcane matters. The Court totally rejects Oakland Cannabis's suggestion that rejecting "medical necessity" would raise fifth, ninth, or tenth amendment concerns (nice try, though!) or commerce clause problems:
In particular, the Cooperative asserts that, shorn of a medical necessity defense, the statute exceeds Congress' Commerce Clause powers, violates the substantive due process rights of patients, and offends the fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments. As the Cooperative acknowledges, however, the canon of constitutional avoidance has no application in the absence of statutory ambiguity. Because we have no doubt that the Controlled Substances Act cannot bear a medical necessity defense to distributions of marijuana, we do not find guidance in this avoidance principle. Nor do we consider the underlying constitutional issues today. Because the Court of Appeals did not address these claims, we decline to do so in the first instance.
I'm not going to take up the Court's rejection of the Oakland Cannabis argument regarding broad equity powers, since that was even more of a stretch than the common law argument.What is fun about this case is the liberal bloc's concurring opinion. They agree in the judgment, but begin their concurrence, "Lest the Court's narrow holding be lost in its broad dicta, let me restate it here: . . . ." In terms of judicial reasoning, calling the bulk of the opinion of one's brethren "dicta" is the equivalent of a slap in the face! It's a nasty concurring opinion, and really quite sloppy. What do I mean by that precisely? First, Blackmun excoriates the majority because it "reaches beyond its holding and beyond the facts of the case by suggesting that the defense of necessity is unavailable for anyone under the Controlled Substances Act." But the majority really does NOT go quite that far -- and Blackmun seems to agree in using the term "suggesting" instead of claiming that's what the majority actually did! Second, Blackmun criticizes the majority's categorization of the common law defense in general as an "open question" when it DOES remain an open question, AT BEST. Finally, Blackmun goes on to criticize the majority for not "showing respect for the sovereign States" never mind that neither ninth or tenth amendment issues were presented (and he is not arguing they were), that he is citing a Brandeis dissent out of context from an almost entirely unrelated case, or that it's a laugher (and quite possibly a first!) for the liberal bloc to associate itself in any way with principles of federalism. Blackmun does raise a fair legal point on the majority's reasoning on the broad equity issue (I think he's wrong, but at least that's somewhat more arguable). He then concludes: "I join the Courts judgment. . . . I do not, however, join the dicta in the Court's opinion." Another slap in the face for good measure! This may be the most vitriolic concurrence that I've ever seen in a unanimous decision
Overall, the thing is much more interesting than I would have guessed from the constitutional issues presented (or lack thereof). I'm not quite sure why the liberal bloc went to such great pains -- and used such heated language -- in a vain effort to narrow an already narrow ruling. In general, the liberal bloc is opposed to any weakening of the Commerce Clause, the authority for the drug statute, and I don't think the conservatives really want to deal with this issue on those grounds (having dug themselves a bit of a hole a few years ago with the drug/gun-free school zone case that narrowed the Commerce power), yet the liberal strategy would seem to make it easier for the issue to return on those constitutional grounds. Fascinating.
Discussion can continue here.
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On a completely unrelated note, I got an email from someone in Mexico today regarding Gordon Stuber. Apparently, there's a channel there that plays the BBC special over and over on Sundays (with Spanish dubbing), and this person thought Gordo was a little creepy also. I will reproduce the email on the Gorbon Stuber Tribute Page soon.
[Posted @ 10:36 PM CST]
