United States v. Oakland Cannabis Buyers' Cooperative: whatever happened to federalism?

• Author: Herman, Caroline
• Position: Supreme Court Review

United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001).

1. INTRODUCTION

   In United States v. Oakland Cannabis Buyers' Cooperative (1) the Supreme Court held that there is no medical exception to the Controlled Substances Act's ("CSA") (2) prohibitions on manufacturing and distributing marijuana. Justice Thomas reasoned that because Congress unambiguously designated marijuana as a Schedule I substance within the CSA, it had determined that there was no current "accepted medical use" or medical benefit of marijuana to warrant an exception granted to other drugs under the Act. (3) Thus, due to what Thomas deemed to be "apparently absolute language" of the CSA, the Court summarily rejected the assertion of the Oakland Cannabis Buyers' Cooperative (the "Cooperative") that because a medical necessity defense exists under the common law, a medical necessity exception should be read into the GSA. (4) Lastly, the Court held that although lower federal courts do enjoy "sound discretion," this discretion does not allow federal courts to ignore Congress's judgment expressed within legislation. (5)

   This Note argues that the Supreme Court's decision in Oakland is inadequate because it fails to examine an issue necessary to resolve this case: does Congress's attempt to regulate the wholly intrastate activity of distribution of marijuana for medical purposes under the CSA exceed Congress's enumerated commerce power? First, the principles of federalism on which our government is based, in conjunction with the facts of Oakland, require this inquiry. Federalism plays a crucial role in the strained relationship between California's Proposition 215, (6) under which the defendant cannabis cooperatives formed, and the CSA. Furthermore, both Oakland and the broader medical marijuana issue involve a situation in which California has chosen to serve as a social and economic laboratory. (7) As Justice Stevens pointed out in his concurrence, when such situations arise, it is the duty of the Supreme Court, and all federal courts, to step in and, whenever possible, resolve any conflicts between state and federal law. (8)

   Second, by failing to address federalism principles and the constitutionality of the CSA, the Court's decision in Oakland is inconsistent with the Rehnquist Court's recent reinvigoration of federalism and its efforts to apply "judicially enforceable outer limits" on Congress's commerce power. (9) This Note argues that when one examines the CSA under the heightened standards the Court set forth in Lopez and Morrison, it becomes clear that the Act, as applied to the wholly intrastate cultivation, possession, and use of medical marijuana is highly constitutionally suspect, if not wholly unconstitutional.

2. BACKGROUND

   1. PROPOSITION 215

      In November 1996, Proposition 215, the "Medical Use of Marijuana" initiative, was passed in California by fifty-six percent of citizens participating in a statewide election, (10) and was codified into law as the "Compassionate Use Act." (11) The Proposition was enacted "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes." (12) Its broad language legalizes marijuana possession and cultivation by seriously ill patients and their caregivers for use by the patient if the patient's physician recommends such treatment. (13) Such patients and their primary caregivers are exempt under Proposition 215 from prosecution for possession of marijuana under California's Health and Safety Code section 11357 and for cultivation of marijuana under section 11358. (14)

      Eight other states have followed California's lead in passing medical marijuana initiatives declaring that persons with a medical need to smoke marijuana will not be prosecuted for possessing or manufacturing the substance. (15) On June 14, 2000, Hawaii's Governor Ben Cayetano (D) signed into law a bill that protects seriously ill patients who use marijuana medically from local and state prosecution. (16) However, such sentiment and action certainly has not yet transferred to the federal level. The Clinton Administration immediately responded to the California and Arizona initiatives with an unequivocal official announcement that federal drug statutes were the controlling legal authority in the United States. (17) Several federal law enforcement agencies also made public statements warning California citizens that possession and cultivation of marijuana was a federal crime, regardless if those actions were now legal under California law. (18) As recently as September 1998, the House of Representatives declared its opposition to the legalization of marijuana for medical use in a "sense of Congress" resolution entitled "Not Legalizing Marijuana for Medical Use" by a 310-93 margin. (19)

   2. CONTROLLED SUBSTANCES ACT

      The controlling federal drug statute in the United States is the Comprehensive Drug Abuse Prevention and Control Act of 1970 ("CSA"), which prohibits the manufacture and distribution of various drugs. (20) The Act specifically provides that "it shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, a controlled substance." (21) The CSA assigns controlled substances to one of five "Schedules" depending on the substance's potential for abuse, the extent to which use may lead to psychological or physical dependence, and whether a substance has a currently accepted medical use in the United States. (22) Substances which have a "high potential for abuse," "no currently accepted medical use in treatment," and "a lack of accepted safety for use of the drug ... under medical supervision" are designated "Schedule I." (23) Schedule I substances are strictly regulated, and the Act provides only one explicit exception in which use of Schedule I substances is permitted: government-approved research projects. (24) Physicians, therefore, cannot legally dispense Schedule I substances to any patient; however, physicians may lawfully distribute substances designated in Schedules II through V. (25)

      Congress placed marijuana, along with LSD and heroine, in Schedule I upon passage of the Act and it has remained in Schedule I to the present day. (26) Organizations such as the National Organization for the Reform of Marijuana Laws ("NORML") and the Alliance for Cannabis Therapeutics ("ACT") have been trying to reschedule marijuana from Schedule I to Schedule II for many years. (27) However, their efforts have repeatedly failed at both the legislative and administrative levels. (28) Supporters of rescheduling argue that failure to reschedule marijuana is absurd when substances such as morphine and cocaine are classified as Schedule II substances, given the medical knowledge of greater risks associated with the latter substances. (29)

      The federal government has unanimously and adamantly opposed rescheduling, arguing that marijuana has no proven medical value, (30) or, alternatively, that the harms outweigh any potential benefit that may result from rescheduling. (31) Congress has consistently rejected legislation to remove marijuana from Schedule I to Schedule II. (32) The Drug Enforcement Administration ("DEA") also has the authority from the Attorney General to reschedule marijuana, (33) but it too has refused to do so. In 1986, the DEA agreed to conduct public hearings on the possible rescheduling of marijuana. (34) After two years of hearings, an administrative law judge recommended the removal of marijuana from Schedule I to Schedule II due to its "currently accepted medical use." (35) However, the Administrator of the DEA refused to apply the recommendation, and instead applied an eight-factor test to reschedule marijuana. (36)

      In the mid-1970s, the Food and Drug Administration ("FDA") did establish an Individual Use Investigational New Drug ("IND") program, which gave a small number of patients access to marijuana on a limited and experimental basis. (37) However, in 1989, due to the drastic rise in AIDS, the FDA was bombarded with applications for the IND program. (38) This led to the suspension and discontinuation of the program in 1991 and 1992, respectively, because, as the chief of the Public Health Service explained, the program undercut the federal government's opposition to the use of illegal drugs. (39) Only eight patients from the program continue to receive marijuana presently. (40)

      1. California Courts and Proposition 215

         The California Court of Appeals for the First District has addressed Proposition 215 in two separate, disagreeing opinions. (41) First, in People v. Trippet (42) the Court held that Proposition 215 does not exempt a seriously ill patient and his primary caregiver from California's Health and Safety Code section 11360, which prohibits the transportation of marijuana. (43) However, the court held that Proposition 215 might provide a defense for a defendant charged with illegally transporting marijuana so long as "the quantity transported and the method, timing and distance of the transportation are reasonably related to the patient's current medical needs." (44)

         Three months later, a different division of this court handed down another decision addressing Proposition 215 in People ex tel. Lungren v. Peron. (45) In Peron, the court held that the defendants, Dennis Peron and the San Francisco Cannabis Cultivators Club, were not primary caregivers within the meaning of Proposition 215. (46) The court further held that Proposition 215 does exempt seriously ill patients and their caregivers from California Health and Safety Code sections 11357 and 11358, which prohibit possession and cultivation of marijuana. (47) However, the court disagreed with Trippet in further holding that Proposition 215 does not, under any circumstances, exempt such patients from sections 11359 and 11360, which prohibit the sale or giving away of marijuana. The Supreme Court of California denied review of the Peron decision...