Petition for Writ of Certiorari — Gonzales v. Raich

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Supreme Court, U.S.

| FILED

031454 APR 20 2004

No.

In the Supreme Court af the Ririten Dinies

JOHN ASHCROFT, ATTORNEY GENERAL, ET AL.,

PETITIONERS

Vv.

ANGEL MCCLARY RAICH, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

LISA SCHIAVO BLATT

Assistant to the Solicitor

General

MARK B. STERN

ALISA B. KLEIN

MARK T. QUINLIVAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

@ BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the Controlled Substances Act, 21 U.S.C.

801 et seg., exceeds Congress’s power under the Com-

merce Clause as applied to the intrastate cultivation

and possession of marijuana for purported personal

“medicinal” use or to the distribution of marijuana

without charge for such use.

(I)

PARTIES TO THE PROCEEDING

Petitioners are John Ashcroft, Attorney General of

the United States, and Karen P. Tandy, Administrator

of the Drug Enforcement Administration.

Respondents are Angel McClary Raich, Diane

Monson, John Doe Number One, and John Doe Number

Two.

TABLE OF CONTENTS

SITTIN ceri cacsciperipentetaiantenensmasnennennennemnensenssqnennssescsseenenenetes

Jurisdiction ........ -

Constitutional provision involved ..............ccsecseseeseeees _

Statement puitieandiaeanibdetenenennietesenerenaes

Reasons for granting the petition ............cssssssseseseeeeseeeeesseeees

A. The Ninth Circuit erred in declaring that Con-

gress cannot regulate the manufacture, pos-

session, and free distribution of marijuana ............

B. The court of appeal’s decision warrants this

Court’s review because it conflicts with

decisions of other courts, partially invalidates

an Act of Congress, and substantially under-

mines the government’s enforcement of the

Controlled Substances Act ...........ccscssessscssssessssesseees

SET ee

TABLE OF AUTHORITIES

Cases:

Alliance for Cannabis Therapeutics v. DEA,

15 F.3d 1131 (D.C. Cir. 1994) peneeinatadaennssisenvemnensnsen

Brzonkala v. Virginia Polytechnic Inst. & State

Univ., 169 F.3d 820 (1999), aff'd sub nom. United

States v. Morrison, 529 U.S. 598 (2000) ............ccccceeseeeee

Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003) ........

Jinks v. Richland County, 538 U.S. 456 (2008) ...............

Maryland v. Wirtz, 392 U.S. 183 (1968) 0.....ccccceseeeeeeeees

Perez v. United States, 402 U.S. 146 (1971) ..........cccccceeees

Proyect v. United States, 101 F.3d 11 (2d Cir.

1996)

United States v. Adams, 343 F.3d 1024 (9th Cir.

2003), petition for cert. pending, No. 03-9072 (filed

BD ig RIOD exnvecseneesssesnsssnscnnscsnsnsnsenenenvscees

(IIT)

9, 12

18, 19

Cases—Continued: Page

United States v. Davis, 288 F.3d 359 (8th Cir.),

cert. denied, 537 U.S. 822 (2002) ..... 19, 20

United States v. Leshuk, 65 F.3d 1105 (4th Cir.

1995) 19

_ United States v. Lopez:

2 F.3d 1342 (5th Cir. 1993) 11

514 U.S. 549 (1995) .... 9, 10, 11, 19

United States v. Marin Alliance for Med. Mari-

juana, No. 02-16335 (9th Cir. Mar. 24, 2004) .........sese0 23

United States v. McWilliams, No. 03-50211 (9th

Cir. Feb. 10, 2004) 23

United States v. Moore, 423 U.S. 122 (1975) 2,14

United States v. Morrison, 529 U.S. 598 (2000) ...........00 10

United States v. Oakland Cannabis Buyers’ Coop.:

No. 02-16534 (9th Cir. Mar. 24, 2004) 23

532 U.S. 483 (2001) 3, 9, 18, 23

United States v. Ukiah Cannabis Buyer’s Club,

No. 02-16715 (9th Cir. Mar. 24, 2004) 23

Walters v. National Ass’n of Radiation Survivors,

473 U.S. 305 (1985) 21

Wickard v. Filburn, 317 U.S. 111 (1942) ........ccsse0 7, 8,9, 10

Wo/Men’s Alliance for Med. Marijuana v. United

States, No. 03-15062 (9th Cir. Mar. 24, 2004) ..........sssssse 23

Constitutions, statutes and regulations:

U.S. Const. Art. I:

§ 8, Cl. 3 (Commerce Clause) passim

§ 8, Cl. 18 (Necessary and Proper Clause) 11

Colo. Const. Art. 18, § 14 22

Controlled Substances Act, Pub. L. No. 91-513, Tit. II,

84 Stat. 1242 (21 U.S.C. 801 et seq.) 2

21 U.S.C. 801 4, 16

21 U.S.C. 801-9064 ...... 2

21 U.S.C. 801(2) 5

BI U B.C. GBR) cocercrcasccecesesrevsrsescscssssesssssscssssesssssssesssssssssooesees 4,13

21 U.S.C. 801(4) 4,13

Statutes and regulations—Continued:

21 U.S.C. 801(5)

21 U.S.C. 801(6)

21 U.S.C. 802(16) ...

BE TBE GB cececsnenessssernsssesmesnessnsensenssemenenseennemnanses

ZI UBC. SIBD) ....crcccsncecceccescsersereeccsseese

21 U.S.C. 812(b)(1)(A)-(C) ........

21 U.S.C. 812(D)(2)(B) ......seeseecseeseerneeneenes

21 U.S.C. 812(b)(3)(B)

21 U.S.C. 812(D)(4)(B) ......eeceecessereeeneneees

21 U.S.C. 812(b)(5)(B) ,

21 U.S.C. 812(c) (§ 202(c), 84 Stat. 1249) .........00

21 U.S.C. 821-8239 ...

21 U.S.C. 823

21 U.S.C. 823(f)

21 U.S.C, 841-868 ...

21 U.S.C. 841(a)(1)

21 U.S.C. 844(a)

BB As. GE ccnsnscnesrsmnesersemereensmnsesenmeemannmnnssnnssens

21 U.S.C. 882(a) ......

Gun-F ree School Zones Act of 1990, 18 U.S.C.

TEER eccocesesssumasecensnesensnsmsersenysenassusnsassenensnesessninenescssesssntn

Compassionate Use Act of 1996, Cal.

Health & Safety Code (West Supp. 2004):

§ 11362.5(b)(1)(A)

§ 11362.5(d)

Alaska Stat. (Michie 2002):

§ 11.71.090

§§ 17.37.010-.17.37.080

Haw. Rev. Stat. Ann. § 329-121 (Michie Supp. 2003)

Me. Rev. Stat. Ann. tit. 22, § 2383-B: (West 2004) .....

Nev. Rev. Stat. Ann. §§ 453A.005-453A.510 (Michie

Supp. 2003)

Or. Rev. Stat. §§ 475.300-475.346 (2001)

Wash. Rev. Code Ann. §§ 69.51.010-69.51.080 (West

1997)

21 C.F.R. Pts. 1301-1306

oon

s8® BB BBRB

Miscellaneous: Page

Executive Office of the President, Office of Nat’l

Drug Control Policy, Marijuana Fact Sheet (Feb.

TIED = <cacssescnicinintanteenteiaiensnennipiinneinenpanitanenssisnanitennintenantonss 11-12

ae 17

66 Fed. Reg. (2001):

OD, SERIE cossessncsenscsnesanmnensesesncsesnnsnensemnsensenenmsnenssenenesneameanneeases 3,17

1 TEIN cxunscsnsnescmsccresssecstecnnsmmenmsenimneneneanninstemamunniecsmensen 3

p. 20,051 ......... snnnediinedantietannnpeenneneneeaenammmaneanmnenatmieneit 17

1s, SERITIIED .snssussnsccnmennesnesinesenpenisitiepnpitanieteastanentneininiiemninnnte 17

H.R. Rep. No. 1444, 91st Cong., 2d Sess. Pt. 1

CPO EE secsassicinnianiniitimicanenisnnsiipiainnsisiainiecninntimeniinaivsaiies 2, 14, 16

Illicit Drug Prices July 2003-December 2003, Narcotics

Se VED, GD, BE TED crcenecsscsssvenscenscnnsensnescsennsssmansee 12

National Drug Intelligence Center, National Drug

Threat Assessment 2003 (Jan. 2008) .......cccccessesssseesseeeeeeees 12

U.S. Bureau of the Census, Statistical Abstract of

ip DE GRO Ge centrtnceinmnnnnnnmene 21

Jn the Supreme Court of the Gnited States

No.

JOHN ASHCROFT, ATTORNEY GENERAL, ET AL.,

PETITIONERS

Vv.

ANGEL MCCLARY RAICH, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Attorney

General of the United States and the Administrator of

the Drug Enforcement Administration, respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Ninth

Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. la-43a)' is

reported at 352 F.3d 1222. The order of the district

court denying respondents’ motion for a preliminary

injunction (App. 44a-69a) is reported at 248 F. Supp. 2d

918.

| “App.” refers to the separately bound appendix to the petition

for a writ of certiorari.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

December 16, 2003. A petition for rehearing was

denied on February 25, 2004 (App. 70a-7la). The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Commerce Clause of the United States Consti-

tution, Article I, Section 8, Clause 3, provides: “The

Congress shall have Power * * * To regulate Com-

merce * * * among the several States.”

STATEMENT

1. a. The Controlled Substances Act (CSA or Act),

21 U.S.C. 801 et seq., establishes a comprehensive fed-

eral scheme to regulate the market in controlled sub-

stances. The CSA makes it unlawful to “manufacture,

distribute, or dispense, or possess with intent to manu-

facture, distribute, or dispense” any controlled sub-

stance, “[e]xcept as authorized by [21 U.S.C. 801-904).”

21 U.S.C. 841(a)(1). The CSA similarly makes it a crime

to possess any controlled substance except as

authorized by the Act. 21 U.S.C. 844(a). The CSA thus

establishes “a ‘closed’ system of drug distribution” for

all controlled substances. H.R. Rep. No. 1444, 91st

Cong., 2d Sess. Pt. 1, at 6 (1970). To effectuate that

closed system, the CSA “authorizes transactions within

‘the legitimate distribution chain’ and makes all others

illegal.” United States v. Moore, 423 U.S. 122, 141

(1975) (quoting H.R. Rep. No. 1444, supra, at 3). Viola-

tions of the CSA are subject to criminal and civil penal-

ties and may be enjoined. 21 U.S.C. 841-863, 882(a).

The restrictions that the CSA places on the manu-

facture, distribution, and possession of a controlled

substance depend upon the schedule in which the drug

has been placed. 21 U.S.C. 821-829. Since Congress

enacted the CSA in 1970, marijuana and tetrahydro-

cannabinols have been classified as schedule I con-

trolled substances. See Pub. L. No. 91-513, Tit. II,

§ 202(c), 84 Stat. 1249 (schedule I(c)(10) and (17)); 21

U.S.C. 812(c) (schedule I(¢)(10) and (17)).

A drug is listed in schedule I, the most restrictive

schedule, if it has “has a high potential for abuse,” “no

currently accepted medical use in treatment in the

United States,” and “a lack of accepted safety for use

* * * under medical supervision.” 21 U.S.C.

812(b)(1)(A)-(C). Under the CSA, it is unlawful to

manufacture, distribute, dispense, or possess a schedule

I drug, except as part of a strictly controlled research

project that has been registered with the Drug En-

forcement Administration (DEA) and approved by the

Food and Drug Administration (FDA). 21 U.S.C. 823,

841(a)(1), 844(a); United States v. Oakland Cannabis

Buyers’ Coop., 5382 U.S. 483, 489-490, 492 (2001). By

contrast, drugs listed in schedules II through V may be

dispensed and prescribed for medical use. Physicians,

pharmacies, and other legitimate handlers of drugs

listed in schedules II through V must, however, comply

with stringent statutory and regulatory provisions that

control the manufacture and distribution of such drugs.

21 U.S.C. 821-829; 21 C.F.R. Pts. 1301-1306.

b. The CSA contains congressiona! findings and

declarations regarding the effects of intrastate drug

2 Marijuana is defined under the CSA to include all parts of the

cannabis plant and anything made therefrom, except for the ma-

ture stalks, fiber produced from the stalks, sterilized seeds, and oil

from the seeds. 21 U.S.C. 802(16). Marijuana has been found to

contain at least 483 separate chemicals, among which, delta-9-

tetrahdyrocannabinol (delta-9-THC) is the primary psychoactive

component. 66 Fed. Reg. 20,038, 20,041 (2001).

activity on interstate commerce. 21 U.S.C. 801. Con-

gress found:

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 beca:se—

(A) after manufacture, many controlled sub-

stances are transported in interstate com-

merce,

(B) controlled substances distributed locally

usually have been transported in interstate

commerce immediately before their distribu-

tion, and

monly flew through interstate commerce im-

mediately prior to such possession.

21 U.S.C. 801(3). Congress similarly found that “[l]Jocal

distribution and possession of controlled substances

contribute to swelling the interstate traffic in such

substances,” 21 U.S.C. 801(4); that “[clontrolled sub-

stances manufactured and distributed intrastate cannot

be differentiated from controlled substances manu-

factured and distributed interstate,” and “[t]hus, it is

not feasible to distinguish” between such substances “in

terms of controls,” 21 U.S.C. 801(5); and that “(flederal

control of the intrastate incidents of the traffic in con-

trolled substances is essential to the effective control of

the interstate incidents of such traffic,” 21 U.S.C.

801(6). Congress also found that “(t]he illegal importa-

tion, manufacture, distribution, and possession and

improper use of controlled substances have a sub-

stantial and detrimental effect on the health and

general welfare of the American people.” 21 U.S.C.

801(2).

2. On October 9, 2002, respondents filed suit in the

United States District Court for the Northern District

of California against John Ashcroft, the Attorney

General of the United States, and Asa Hutchinson, then

the Administrator of the Drug Enforcement Admini-

stration, seeking injunctive and declaratory relief bar-

ring them from enforcing the CSA as applied to their

conduct. The complaint alleges that respondents Angel

McClary Raich and Diane Monson are California

citizens who use marijuana for medical purposes based -

on the recommendations of their physicians. Such use

is exempted from the coverage of California’s criminal

drug laws. App. la-2a, 45a; see California’s Compas-

sionate Use Act of 1996, Cal. Health & Safety Code

§ 11362.5(b)(1)(A) and (d) (West Supp. 2004).

Raich, a resident of Oakland, California, alleges that

she suffers from numerous severe and debilitating

medical conditions for which marijuana alone provides

relief, and that her physicians recommend that she

“medicate” with marijuana every two hours. A_p. 5a,

76a, 79a. Raich alleges that she is unable to cultivate

her own marijuana and that she obtains marijuana free

of charge from two “caregivers,” respondents John Doe

Number One and John Doe Number Two, who are also

residents of Oakland, California, and who sued anony-

mously to protect Raich’s marijuana supply. Id. at 5a,

14a n.3, 77a-78a. Although the Does cultivate the mari-

juana, Raich processes some of the marijuana into

cannabis oils, balm, and foods. Jd. at 5a.

Diane Monson, a resident of Butte County, Cali-

fornia, alleges that she suffers from severe chronic back

pain and constant, painful muscle spasms, and that she

has been using marijuana as a medication for more than

five years. App. 5a, 76a-77a, 80a-8la. Monson alleges

that, in August 2002, federal agents came to her home

and seized her six marijuana plants, over the objection

of the Butte County District Attorney. Jd. at 76a-77a.

Respondents’ suit sought a preliminary injunction to

bar the government from enforcing the Controlled Sub-

stances Act against them to the extent that it prevents

Raich and_ Monson from possessing, cultivating, and

processing marijuana for their purported medical use,

and to the extent that it prevents the John Doe

respondents from cultivating marijuana and providing

it to Raich for her purported medical use. App. 89a-91a.

Respondents urged that the CSA, as applied to their

conduct, is unconstitutional and conflicts with the pur-

ported “doctrine of medical necessity.” Jd. at 6a.

On March 4, 2003, the district court denied the

motion for a preliminary injunction, concluding that

“the weight of precedent precludes a finding of

likelihood of success on the merits.” App. 45a.

3. A divided panel of the court of appeals reversed

and remanded. App. la-43a.

a. The court of appeals concluded that respondents

“have demonstrated a strong likelihood of success on

their claim that, as applied to them, the CSA is an

unconstitutional exercise of Congress’s Commerce

Clause authority.” App. 9a. The court observed that

its previous decisions that had uniformly rejected

Commerce Clause challenges to the CSA were not con-

trolling, because none of those decisions “involved the

use, possession, or cultivation of marijuana for medical -

purposes.” Jd. at 10a.

The court found that the “intrastate, noncommercial

cultivation, possession and use of marijuana for

personal medical purposes on the advice of a physician”

“constitutes a separate and distinct class of activities”

that is beyond Congress’s power to regulate under the

Commerce Clause. App. lla (emphasis omitted). The

court found that class “different in kind from drug

trafficking,” reasoning that “this limited use is clearly

distinct from the broader illicit drug market— as well

as any broader commercial market for medicinal

marijuana—insofar as the medical marijuana at issue in

this case is not intended for, nor does it enter, the

stream of commerce.” [bid.

The court of appeals also reasoned that “[t]he cultiva-

tion, possession, and use of marijuana for medicinal

purposes and not for exchange or distribution is not

properly characterized as commercial or economic

activity.” App. 14a. The court accordingly found “not

applicable” the “aggregation principle” of Wickard v.

Filburn, 317 U.S. 111 (1942), which allows for con-

sideration of the cumulative impact on interstate com-

merce of individual instances of regulated conduct (in

Wickard, the cultivation of wheat). App. 15a. The

court also rejected the importance of Congress’s find-

ings in the CSA regarding the effects of intrastate drug

activity on interstate commerce, reasoning that “[t]he

findings are not specific to marijuana, much less intra-

state medicinal use of marijuana that is not bought or

sold and the use of which is based on the recom-

mendation of a physician,” and that in any event such

findings should be taken “with a grain of salt.” Jd. at

19a-20a. Finally, the court concluded that the hardship

of the parties and public interest factors “tip sharply” in

favor of the entry of a preliminary injunction. Jd. at

24a.

b. Judge Beam dissented. App. 26a-43a. In his

view, “(i]t is simply impossible to distinguish the rele-

vant conduct surrounding the cultivation and use of the

marijuana crop at issue in this case from the cultivation

and use of the wheat crop that affected interstate

commerce in Wickard v. Filburn, [supra].” Id. at 26a.

The dissent explained that the court of appeals’

approach ignored “the fungible, economic nature of the

substance at issue—marijuana plants—for which there

is a well-established and variable interstate market,

albeit an illegal one under federal law.” Jd. at 34a;

accord id. at 34a-35a (Respondents “are growing and/or

using a fungible crop which could be sold in the

marketplace, and which is also being used for medicinal

purposes in place of other drugs which would have to be

purchased in the marketplace.”).

Judge Beam also concluded that Congress’s power to

regulate respondents’ activities is essential to Con-

gress’s ability to regulate “the larger commercial activ-

ity” covered by the CSA. App. 36a. He reasoned

that, “[iJf Congress cannot reach individual narcotics

growers, possessors, and users, its overall statutory

scheme will be totally undermined.” Jd. at 38a. Judge

Beam also observed that the court’s decision to carve

out from Congress’s general regulatory scheme in-

dividual instances of activity based on their ostensibly

de minimis relation to commerce conflicts with the

decisions of Proyect v. United States, 101 F.3d 11 (2d

Cir. 1996), and United States v. Leshuk, 65 F.3d 1105

(4th Cir. 1995). App. 35a-37a.

REASONS FOR GRANTING THE PETITION

The Court of Appeals for the Ninth Circuit has held

that the Controlled Substances Act cannot consti-

tutionally be applied to the manufacture, possession,

and distribution without charge of marijuana for

purported medicinal use. The court of appeals’ partial

invalidation of that Act of Congress is erroneous

and seriously undermines Congress’s comprehensive

scheme for the regulation of dangerous drugs. The

court of appeals’ reliance on the purported medical

purposes of respondents’ activities also conflicts with

this Court’s decision in Oakland Cannabis, 532 U.S. at

491, 494, which held that the CSA does not countenance

any medical use of marijuana. The Ninth Circuit’s

decision, moreover, cannot be reconciled with the

decisions of other courts of appeals that have held that

Congress has the power under the Commerce Clause to

prohibit the manufacture or possession of controlled

substances, including marijuana, for personal use.

A. THE NINTH CIRCUIT ERRED IN DECLARING

THAT CONGRESS CANNOT REGULATE THE

MANUFACTURE, POSSESSION, AND FREE

DISTRIBUTION OF MARIJUANA

1. The Commerce Clause grants Congress the power

to regulate a class of activities that substantially affects

commerce, regardless of whether an individual instance

within the class has a significant effect on interstate

commerce. “[W]here a general regulatory statute bears

a substantial relation to commerce, the de minimis

character of individual instances arising under that

statute is of no consequence.” United States v. Lopez,

514 U.S. 549, 558 (1995) (quoting Maryland v. Wirtz,

392 U.S. 183, 197 n.27 (1968)); accord Perez v. United

States, 402 U.S. 146, 154 (1971) (“[w]here the class of

activities is regulated and that class is within the reach

of federal power, the courts have no power ‘to excise, as

trivial, individual instances’ of the class”) (quoting

Wirtz, 392 U.S. at 193); Citizens Bank v. Alafabco, Inc.,

539 U.S. 52, 56-57 (2003) (per curiam).

For example, in Wickard v. Filburn, 317 U.S. 111

(1942), the Court upheld federal regulation of wheat

grown and consumed on a family farm in order to

control the volume of wheat moving in interstate and

foreign commerce. Wickard establishes that activity

occurring within a market is subject to Congress’s

commerce power even when the activity may itself not

be commercial. This Court explained in United States

v. Lopez, supra, that the production of wheat that

Congress chose to regulate in Wickard is economic

activity even though it was produced for personal use

and “may not be regarded as commerce.” Lopez, 514

U.S. at 556 (quoting Wickard, 317 U.S. at 125). In

distinguishing the statute in Wickard from the Gun-

Free School Zones Act of 1990, 18 U.S.C. 922(q), at

issue in Lopez, the Court explained that “Wickard

* * * involved economic activity in a way that the

possession of a gun in a school zone does not.” Lopez,

514 U.S. at 560. The Court further explained that

Section 922(q) is not “an essential part of a larger

regulation of economic activity, in which the regulatory

scheme could be undercut unless the intrastate activity

were regulated.” Jd. at 561; see United States v.

Morrison, 529 U.S. 598, 610 (2000).

2. The Ninth Circuit held in this case that Wickard

has no application to the intrastate cultivation, posses-

sion, and distribution without charge of marijuana for

purported medical purposes because, in the court of

appeals’ view, that class of activities neither involves

economic activity nor substantially affects interstate

commerce. App. 1la-12a, 16a-17a. That conclusion is

fundamentally flawed. Regulation of intrastate posses-

sion, manufacture, and distribution of any controlled

substance, including marijuana, is an integral and es-

sential part of Congress’s comprehensive regulation of

the interstate possession, manufacture, and distribution

of such substances generally, which unquestionably

take place in large part in interstate commerce and

categorically affects interstate commerce.

Congress could reasonably determine that regulation

of intrastate possession, manufacture, and distribution

of all controlled substances, including marijuana, is a

necessary and proper measure to ensure the effectua-

tion of its comprehensive system of regulation, which

falls squarely within Congress’s power under the

Commerce Clause. U.S. Const. Art. I, § 8, Cl. 18; see,

e.g., Jinks v. Richland County, 538 U.S. 456, 461-464

(2003). As the Fourth Circuit has explained:

Like the production of home-grown wheat, the

manufacture of marijuana for personal use is an

economic activity in a general sense. Further, such

manufacture is prohibited pursuant to a compre-

hensive statutory scheme bearing on all aspects of

the illegal-drug trade, which is assuredly both

commercial and interstate. Thus, like the regulation

of home-grown wheat, the prohibition of home-

grown marijuana is ‘an essential part of a larger

regulation of economic activity, in which the regula-

tory scheme could be undercut unless the intrastate

activity were regulated.’

Brzonkala v. Virginia Polytechnic Inst. & State Univ.,

169 F.3d 820, 836 n.7 (1999) (internal citation omitted)

(quoting Lopez, 514 U.S. at 561), aff’d swb nom. United

States v. Morrison, 529 U.S. 598 (2000); accord United

States v. Lopez, 2 F.3d 1342, 1367 n.51 (5th Cir. 1993)

(“The [CSA’s] possession proscription [is] a necessary

means to regulate the interstate commercial trafficking

in narcotics.”), aff’d, 514 U.S. 549 (1995).

a. Marijuana is a commodity that is readily pur-

chased and sold in a well-defined market of drug traf-

ficking. “U.S. marijuana users spent approximately

$10.5 billion on marijuana in 2000.” Executive Office of

the President, Office of Nat’l Drug Control Policy,

Marijuana Fact Sheet, 5 (Feb. 2004); see National Drug

Intelligence Center, National Drug Threat Assessment

2003 3 (Jan. 2003) (“Marijuana is the most widely

available illicit drug in the United States. * * * Prices

are relatively st«'e, although they do range con-

siderably from market to market.”); Illicit Drug Prices

July 2003-December 2003, Narcotics Digest Weekly,

Dec. 16, 2003, at 1 & Table 4, at 19-25 (listing, for all 50

States and District of Columbia, wholesale, mid-level,

and retail prices for BC Bud, commercial grade, do-

mestic, hydroponic, locally produced, imported, Mexico-

produced, and sinsemilla marijuana). The Ninth Circuit

accordingly erred in seizing on the fact that respon-

dents’ activities involve the production, possession, and

free distribution of marijuana that is not intended to

enter the stream of commerce. App. lla, 14a n.3. The

salient point is that those activities are part of the

overall class of activities regulated by Congress under

the CSA—the manufacture, possession, and distribu-

tion of controlled substances—that involves economic

activity and substantially affects commerce. Accord-

ingly, an assertedly “trivial” impact of an “individual

instance” regulated by the statute is of “no conse-

quence.” Maryland v. Wirtz, 392 U.S. at 197.

Congress reasonably viewed intrastate drug activity,

including possession and manufacture, as significantly

affecting the overall interstate market of drug traffick-

ing. Significantly, Congress found that “[lJocal distri-

bution and possession of controlled substances contri-

bute to swelling the interstate traffic in such sub-

stances”; that “after manufacture, many controlled

substances are transported in interstate commerce”;

that “controlled substances distributed locally usually

have been transported in interstate commerce immedi-

ately before their distribution”; and that “controlled

substances possessed commonly flow through inter-

state commerce immediately prior to such possession.”

21 U.S.C. 801(3) and (4).

Those findings comport with common sense. Local

manufacturing, possession, and use of controlled sub-

stances increase the demand for such drugs, which in

turn leads to increased supply and marketing to users.

The manufacturing and use of controlled substances

also pose an appreciable risk of diversion to others for

further drug use or distribution, a result that leads to

more swelling of the illicit market. Congress’s unques-

tionable power to eradicate drug trafficking and distri-

bution also includes the power to ban the production,

possession, and use that feeds the illicit drug market.

As the Ninth Circuit itself has explained: “Laws

criminalizing the possession of a good decrease the

demand for that good. This decreased demand results

in a decrease of supply as production becomes less

profitable and therefore less attractive.” United States

v. Adams, 343 F.3d 1024, 1033 (9th Cir. 2003), petition

for cert. pending, No. 03-9072 (filed Feb. 17, 2004).’

Similarly, Congress rationally applied the CSA to all

drug activity because it may be impossible to ascertain

in any given case whether a drug, including marijuana,

has either been purchased or is intended to be offered

for sale. Similarly, Congress specifically found that,

given the fungible nature of marijuana and drugs

3 Local illicit drug use for purported medicinal purposes also

may induce the user to refrain from consuming lawful drugs, App.

34a-35a, 36a (Beam, J., dissenting), and similarly could decrease

the incentives for research and development into new legitimate

drugs.

generally, “[cJontrolled substances manufactured and

distributed intrastate cannot be differentiated from

controlled substances manufactured and distributed

interstate,” especially “in terms of controls” of such

substances. 21 U.S.C. 801(5).

b. The intrastate manufacture, possession, and free

distribution of marijuana for purported medical

purposes also significantly interferes with the CSA’s

purpose to establish a national, comprehensive, uniform

—and closed—statutory scheme to prevent the abuse

and diversion of controlled substances. The CSA is

designed to “significantly reduce the widespread diver-

sion of these drugs out of legitimate channels into the

illicit market, while at the same time providing the

legitimate drug industry with a unified approach to

narcotic and dangerous drug control.” H.R. Rep. No.

1444, supra, at 6; see Moore, 423 U.S. at 135 (describing

CSA’s purpose to guard against the “diversion of drugs

from legitimate channels to illegitimate channels”).

In furtherance of that central purpose, the CSA thus

controls all manufacturing, possession, and distribution

of any scheduled drug. That is why marijuana, like all

other listed drugs, is a “controlled” substance under the

CSA. The CSA thus “provides for control * * * of

problems related to drug abuse through registration of

manufacturers, wholesalers, retailers, and all others in

the legitimate distribution chain, and makes trans-

actions outside the legitimate distribution chain illegal.”

H.R. Rep. No. 1444, supra, at 3. That goal cannot be

achieved if the intrastate manufacturing, possession,

and distribution of a drug may occur without any

federal regulation. Indeed, Congress included in the

CSA the specific finding that “[flederal control of the

intrastate incidents of the traffic in controlled sub-

stances is essential to the effective control of the

interstate incidents of such traffic.” 21 U.S.C. 801(6).

The adverse effect of the court of appeals’ decision on

the administration and enforcement of the CSA is easily

illustrated as applied to the manufacture, possession,

and free distribution of drugs listed in schedules II

through V (such as cocaine, methadone, codeine and

opium), which may be dispensed and prescribed for

medical use. 21 U.S.C. 812(b)(2)(B), (3)(B), (4)(B) and

(5)(B). Although such drugs (unlike marijuana and

other schedule I substances) have an accepted medical

use in treatment, the CSA requires physicians, manu-

facturers, pharmacies, and other legitimate handlers of

such drugs to comply with stringent statutory and

regulatory provisions that mandate registration with

the DEA, require compliance with specific production

quotas, establish security controls to guard against the

theft or diversion of drugs, impose recordkeeping and

reporting obligations, and permit the drug to be distri-

buted and dispensed only pursuant to specific order-

form and prescription requirements. 21 U.S.C. 821-829;

21 C.F.R. Pts. 1301-1306. ~

Were Congress to lack the power under the Com-

merce Clause to apply the CSA to the intrastate manu-

facture, possession, and free distribution of controlled

substances on schedules II through V, persons operat-

ing intrastate could function essentially as unregulated

and unsupervised drug manufacturers and pharmacies

without being subject to any of the federal controls

under the CSA. That regime would substantially

undermine the CSA’s purposes to establish a compre-

hensive and unified approach to “dangerous drug

control” and to guard against the risks of drug abuse

and the diversion of controlled substances from

“legitimate channels into the illicit market.” H.R. Rep.

No. 1444, supra, at 6.

Ironically, the Ninth Circuit’s decision undermines

the CSA to an even greater degree because it prohibits

federal regulation of marijuana, a schedule I drug (like

LSD and heroin), that Congress has determined has no

accepted medical use and may not be manufactured,

possessed, or distributed under any circumstances

other than a strictly controlled research project. 21

U.S.C. 812(b), 823(f). Thus, for schedule I substances,

the comprehensive statutory regime Congress has put

in place is even more tightly closed than it is for

substances in schedules II through V.

c. For purposes of defining Congress’s power under

the Commerce Clause, there is no basis for disting-

uishing drug activity for purported medicinal purposes

and that same activity for recreational or any other

purpose. The court of appeals thus critically erred in

relying on the fact that respondents’ activities are for

purported medical purposes and that Congress’s find-

ings in 21 U.S.C. 801 do not specifically address the use

of marijuana for purported medical purposes. App. 11a,

19a. The court was of the view that “concern regarding

users’ health and safety is significantly different in the

medicinal marijuana context, where the use is pursuant

to a physician’s recommendation,” id. at 1la, and that

“the limited medicinal use of marijuana as recom-

mended by a physician arguably does not raise the

same policy concerns regarding the spread of drug

abuse.” Ibid. Congress has rejected those very pro-

positions. The CSA specifies that marijuana, as a

schedule I drug, has “no currently accepted medical use

in treatment in the United States,” a “high potential for

abuse,” and “a lack of accepted safety for use * * *

under medical supervision.” 21 U.S.C. 812(b)(1)(A)-

(C).!

Moreover, even for those controlled drugs that

(unlike marijuana) have been determined to have an

accepted medical use in treatment and therefore are on

one of the other schedules, the CSA imposes compre-

hensive restrictions on the manufacture, distribution,

and possession of the drugs—including restrictions on

the activities of physicians and pharmacies—in order to

maintain the closed system of distribution and to

protect the public health and safety. The court of

appeals’ conclusion that the manufacture, possession

and free distribution for purported personal “medicinal”

use justify excluding those activities altogether from

the reach of the CSA is flatly inconsistent with the

fundamental premises and purposes of the CSA.

* The CSA contains provisions under which a controlled

substance that has been placed in schedule I (or any other

schedule) may be transferred to another schedule or entirely re-

moved from the schedules. 21 U.S.C. 811. In 2001, DEA denied a

petition to reschedule marijuana, based on an evaluation of the

medical and scientific evidence demonstrating that marijuana

continues to meet the criteria for placement in schedule I. 66 Fed.

Reg. at 20,038. The DEA relied in significant part on the medical

and scientific analysis by the FDA, as well as the FDA’s con-

clusions that “[tJhere are no FDA-approved marijuana products”

and “there have been no studies that have scientifically assessed

the efficacy of marijuana for any medical condition.” Jd. at 20,051,

20,052. The DEA previously had rejected a petition to reschedule

marijuana in 1992 (57 Fed. Reg. 10,499), and that denial was

affirmed by the D.C. Circuit. Alliance for Cannabis Therapeutics

v. DEA, 15 F.3d 1131, 1137 (1994) (“(TJhe Administrator’s findings

are supported by substantial evidence,” including the “testimony

of numerous experts that marijuana’s medicinal value has never

been proven in sound scientific studies.”).

The court of appeals’ reliance on the purported

medical purposes of respondents’ drug activities also is

inconsistent with this Court’s decision in Oakland

Cannabis. In holding that the CSA forecloses a medical

necessity defense to an enforcement action under the

CSA, the Court explained that the CSA

reflects a determination that marijuana has no

medical benefits worthy of an exception (outside the

confines of a Government-approved research pro-

ject). Whereas some other drugs can be dispensed

and prescribed for medical use, see 21 U.S.C. § 829,

the same is not true for marijuana. Indeed, for

purposes of the Controlled Substances Act, mari-

juana has “no currently accepted medical use” at all.

532 U.S. at 491. The Court emphasized that, “[lJest

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 manu-

facturing and distributing and the other prohibitions in

the Controlled Substances Act.” Jd. at 494 n.7. In

short, the Ninth Circuit has constitutionalized under

the Commerce Clause the very medical necessity de-

fense that was rejected in Oakland Cannabis.

3. The court of appeals’ decision also conflicts with

the decisions of other court of appeals that have upheld

the constitutionality of the CSA as applied to the

manufacture and simple possession of a controlled

substance. In Proyect v. United States, 101 F.3d 11

(1996), the Second Circuit sustained against a Com-

merce Clause challenge the conviction of a defendant

who grew marijuana plants on his property. The court

of appeals rejected the defendant’s contention that the

class of activities to be examined for an effect on

interstate commerce was the production of marijuana

“only for personal consumption” and “without intent to

distribute in commerce.” Id. at 12, 14. The Second

Circuit instead held that “(t]he nexus to interstate

commerce * * * is determined by the class of

activities regulated by the statute as a whole, not by

the simple act for which an individual defendant is

convicted.” Jd. at 13. The court also explained that

“the class of regulated activities, even if narrowly

defined as the manufacture of controlled substances,

undoubtedly has a substantial impact on interstate com-

merce,” and “(t]he fact that certain intrastate activities

within this class, such as growing marijuana solely for

personal consumption, may not actually have a signifi-

cant effect on interstate commerce is therefore irrele-

vant.” Jd. at 13-14.

Similarly, in United States v. Leshuk, 65 F.3d 1105,

1112 (1995), the Fourth Circuit held that the CSA may

be constitutionally applied to the “possession and culti-

vation” of marijuana for “personal use” that “did not

substantially affect interstate commerce.” The court

reasoned that “Lopez expressly reaffirmed the princinle

that ‘where a general regulatory statute bears a sub-

stantial relation to commerce, the de minimis character

of individual instances arising under that statute is of

no consequence.” Ibid. (quoting Lopez, 514 U.S. at

558). Likewise, the Eighth Circuit in United States v.

Davis, 288 F.3d 359, cert. denied, 537 U.S. 882 (2002),

sustained against a Commerce Clause challenge the

conviction of a defendant who engaged in the wholly

intrastate manufacture of homemade methampheta-

mine. The court of appeals looked to the class of activi-

ties regulated by the CSA as a whole and relied on the

extensive findings by Congress that “demonstrate that

local manufacture and distribution of controlled sub-

stances substantially affect interstate traffic in those

substances.” 288 F.3d at 362.

The Ninth Circuit’s decision cannot be reconciled

with those decisions of other courts of appeals. App.

35a-36a (Beam, J., dissenting). The Ninth Circuit nar-

rowly defined the relevant class of activities in question

to include only the intrastate production, possession,

and free distribution of marijuana that is intended for

personal consumption and not sale (id. at 1la-12a, 16a-

17a), without regard to the fact that the CSA compre-

hensively controls specified substances and creates a

closed system of manufacture, distribution and posses-

sion of those substances. It therefore reasonably

applies comprehensively to all instances of activity

involving those substances. Such regulation is permis-

sible under the Commerce Clause because that activity

as a class is either in or substantially affects commerce

and because regulation of its intrastate aspects is

necessary and proper to effectuate the regulatory

scheme.

B. THE COURT OF APPEALS’ DECISION WAR-

RANTS THIS COURT’S REVIEW BECAUSE IT

CONFLICTS WITH DECISIONS OF OTHER

COURTS, PARTIALLY INVALIDATES AN ACT OF

CONGRESS, AND SUBSTANTIALLY UNDER-

MINES THE GOVERNMENT’S ENFORCEMENT

OF THE CONTROLLED SUBSTANCES ACT

1. The Ninth Circuit’s decision warrants review by

this Court. As explained above, that decision conflicts

with decisions of other courts of appeals. It conflicts as

well with the Court’s decision in Oakland Cannibas in

finding that the asserted medicinal purpose for smoking

marijuana furnishes a basis for placing respondents’

manufacture, distribution, and possessica of marijuana

beyond the reach of the CSA. But in addition, for the

first time since Congress’s enactment of the CSA in

1970, a court of appeals has held that the CSA, as

applied to the manufacture, possession, and distribution

of a controlled substance, is unconstitutional under the

Commerce Clause. That unprecedented holding of un-

constitutionality warrants this Court’s review. Al-

though the court of appeals’ decision arises in the

context of a request for a preliminary injunction (App.

8a-9a), the court’s ruling leaves no doubt that it held the

CSA unconstitutional as applied to “the intrastate, non-

commercial cultivation and possession of cannabis for

personal medical purposes as recommended by a

patient’s physician pursuant to valid California state

law.” Id. at 11a; ef. Walters v. National Ass’n of Radia-

tion Survivors, 473 U.S. 305, 317-319 (1985) (finding

that a court’s preliminarily enjoining of an Act of Con-

gress on constitutional grounds constitutes a “holding”

for purposes of a direct appeal statute).

2. The decision is also significant because it sub-

stantially undermines the government’s ability to

enforce the CSA in the nine States within the Ninth

Circuit, which have a population of nearly 50 million

people. U.S. Department of Commerce, Statistical

Abstract of the United States 27 (1994). As discussed

above (at 11-16), the CSA’s prohibition against respon-

dents’ activities is essential to effectuate the CSA’s

purpose to establish a unified and closed system of

controls. The court of appeals’ decision not only pre-

vents the government fiom enforcing the CSA with

respect to the intrastate manufacture, possession, and

free distribution of controlled substances for purported

medical purposes; the court’s decision also threatens a

substantial increase in the level of prohibited drug

activity in the States covered by the Ninth Circuit by

individuals purporting to engage in that activity for

alleged medical purposes.

Indeed, the court of appeals’ decision takes on added

significance in light of the fact that a number of

States in the Ninth Circuit—Alaska, California, Hawaii,

Nevada, Oregon, and Washington—have enacted legis-

lation permitting the use of marijuana for purported

medicinal purposes as a matter of state law. Alaska

Stat. §§ 11.71.090, 17.37.010-17.37.080 (Michie 2002);

Haw. Rev. Stat. Ann. § 329-121 (Michie Supp. 2003);

Nev. Rev. Stat. Ann. § 453A.005-453A.510 (Michie

Supp. 2003); Or. Rev. Stat. 475.300-475.346 (2001);

Wash. Rev. Code Ann. § 69.51.010-69.51.080 (West

1997).° Thus, unless the CSA can be constitutionally

enforced with respect to that activity, persons in those

States will be able to possess marijuana with impunity

for purported medicinal use, even though the CSA re-

flects Congress’s deliberate judgment that all instances

of marijuana possession, manufacture, and distribution

should be banned outside the specific confines of the

Act itself.

The court of appeals’ decision has already had a

significant adverse impact by creating substantial con-

fusion over whether the CSA may be constitutionally

applied in a variety of contexts and by inviting

defendants engaged in illegal drug activity to raise the

5 A medical marijuana ballot measure likewise was approved

by voters in Maine in November 1999 and codified as state law.

Me. Rev. Stat. Ann. tit. 22, § 2383-B (West 2004). Colorado has

authorized medical use of marijuana with an amendment to the

state constitution. Colo. Const. Art. 18, § 14. Efforts are addition-

ally underway, either through ballot initiatives or proposed state

or local legislation, to authorize medical use of marijuana in

Connecticut, the District of Columbia, Florida, Missouri, New

York, Rhode Island, Vermont, Utah, and Detroit, Michigan.

decision below as a complete obstacle to prosecutions or

other enforcement actions under the CSA. For

example, in an appeal by a criminal defendant convicted

of manufacturing marijuana in violation of 21 U.S.C.

841(a)(1), the Ninth Circuit has directed the parties to

address whether the defendant’s conduct “[w]as * * *

of a ‘commercial character’ or ‘not commercial.’”

United States v. McWilliams, No. 03-50211, at 1 (9th

Cir. Feb. 10, 2004) (Order). -

Moreover, in an appeal by three cannabis clubs and

their operators engaged in the commercial manu-

facture and sale of marijuana (including the club at

issue in Oakland Cannabis, supra), the Ninth Circuit

has directed the parties to address the relevance of the

decision below to the district court’s power to issue an

injunction against the distribution and cultivation of

marijuana by the cannabis clubs. United States. v.

Marin Alliance for Med. Marijuana, No. 02-16335,

United States v. Oakland Cannabis Buyers’ Coop., No.

02-16534, United States v. Ukiah Cannabis Buyer’s

Club, No. 02-16715, at 2 (Mar. 24, 2004) (Order).

Similarly, in an appeal by a marijuana collective and its

operators with 250 members seeking the return of 167

marijuana plants seized by the DEA pursuant to 21

U.S.C. 881, the Ninth Circuit has directed the parties to

file briefs addressing the relevance of the decision

below. Wo/Men’s Alliance for Medical Marijuana v.

United States, No. 03-15062, at 1 (9th cir. Mar. 24, 2004)

(Order). In a related case pending before the district

court, the collective and its operators have invoked the

decision below in seeking reconsideration of the district

court’s deniai of their request for a preliminary injunc-

tion against further enforcement efforts by the DEA.

Plaintiff's Mot. for Reconsideration of August 28, 2003

Order, County of Santa Cruz v. Ashcroft, No. 03-CV-

1802 JF (N.D. Cal.) (filed Feb. 23, 2004).°

3. Immediate review by this Court is warranted.

Further proceedings in the lower courts are not needed

to clarify the issues presented. The court of appeals’

ruling leaves no factual or legal questions open on

remand. Indeed, the court of appeals remanded this

case to the district court “for entry of a preliminary

injunction.” App. 26a. Moreover, as explained above,

there already is rapidly increasing litigation, both civil

and criminal, that invokes the Ninth Circuit’s decision

in seeking similar or broader relief in various settings,

and that decision creates an incentive for widespread

violation of the CSA in the Ninth Circuit by persons

who might claim medical reasons for manufacturing,

distributing, or possessing marijuana or other con-

trolled substances. The constitutionality of the Act of

Congress prohibiting such conduct should not be left in

doubt.

6 Likewise, the decision below has been cited by an individual

seeking to force the DEA to return 5 ounces of marijuana seized by

the DEA. Don Nord’s Response Opposing the Gov’t Mot. to

Dismiss at 10, People of the State of Colorado v. Nord, No. 04-CR-

26 (D. Colo. filed Mar. 29, 2004). The court of appeals’ decision has

also been invoked by two churches seeking an injunction pre-

venting the United States from enforcing the CSA with respect to

their cannabis activities. Complaint (Count 6), Religion of Jesus

Church v. Ashcroft, CV 04-00200HG (D. Haw. filed Mar. 24, 2004).

CONCLUSION

The petition for a writ of certiorari sheuld be

granted.

Respectfully submitted.