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352 F.3d 1222 (9th Cir., 2003)
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United States Court of Appeals,
Ninth Circuit.
Angel McClary RAICH; Diane Monson; John Doe,
Number One; John Doe, Number Two,
Plaintiffs-Appellants,
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No. 03-15481.
Argued and Submitted Oct. 7, 2003.
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v.
John ASHCROFT, Attorney General, as United
States Attorney General; Asa Hutchinson, as
Administrator of the Drug Enforcement
Administration,
Defendants-Appellees.
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Filed Dec. 16, 2003.
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Randy Barnett, Boston, MA, for Plaintiffs-Appellants.
Mark T. Quinlivan, U.S. Department of Justice, for
Defendants-Appellees.
Alice P. Mead, San Francisco, CA and David A. Handzo,
Washington, DC, for Amici California Medical Association and
California Nurses Association.
Taylor S. Carey, Special Assistant Attorney General,
Sacramento, CA, for Amicus State of California.
Appeal from the United States District Court for the
Northern District of California; Martin J. Jenkins, District
Judge, Presiding. D.C. No. CV-02-04872- MJJ.
Before: PREGERSON, BEAM, [FN*] and PAEZ, Circuit
Judges.
PREGERSON, Circuit Judge:
Two of the appellants, Angel McClary Raich and Diane
Monson, are seriously ill Californians who use marijuana for
medical purposes on the recommendation of their doctors.
Such use is legal under California's Compassionate Use Act.
Monson grows her own medical marijuana. The remaining two
appellants, John Doe Number One and John Doe Number Two,
assist Raich in growing her marijuana. On October 9, 2002,
the appellants filed suit against John Ashcroft, the
Attorney General of the United States, and Asa Hutchinson,
the Administrator of the Drug Enforcement Administration,
seeking injunctive and declaratory relief based on the
alleged unconstitutionality of the federal Controlled
Substances Act. The appellants also seek a declaration that
the medical necessity defense precludes enforcement of that
act against them.
On March 5, 2003, the district court denied the
appellants' motion for a preliminary injunction because the
appellants had not established a sufficient likelihood of
success on the merits. That ruling is now before us.
FACTUAL AND PROCEDURAL HISTORY
A. Statutory Scheme
1. The Controlled Substances Act
Congress enacted the Controlled Substances Act, 21 U.S.C.
§ 801 et seq., ("CSA") as part of the Comprehensive
Drug Abuse Prevention and Control Act of 1970, Pub.L.
91-513, 84 Stat. 1236. The CSA establishes five "schedules"
of certain drugs and other substances and designates these
items "controlled substances." 21 U.S.C. §§
802(6), 812(a). Marijuana is a schedule I controlled
substance. Id. § 812(c). For a drug or other substance
to be designated a schedule I controlled substance, it must
be found (1) that the substance "has a high potential for
abuse"; (2) that the substance "has no currently accepted
medical use in treatment in the United States"; and (3) that
there is "a lack of accepted safety for use of the drug or
other substance under medical supervision." Id. at §
812(b)(1). The CSA sets forth procedures by which the
schedules may be modified. Id. at § 811(a).
Among other things, the CSA makes it unlawful to
knowingly or intentionally "manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute,
or dispense, a controlled substance," except as provided for
in the statute. 21 U.S.C. § 841(a)(1). Possession of a
controlled substance, except as authorized under the CSA, is
also unlawful. Id. § 844(a).
Congress set forth certain findings and declarations in
the CSA, the most relevant of which are as follows:
(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.
....
(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, is
it 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.
21 U.S.C. § 801.
2. California's Compassionate Use Act of 1996
In 1996, California voters passed Proposition 215, which
is codified as the Compassionate Use Act of 1996
("Compassionate Use Act"), Cal. Health & Safety Code
§ 11362.5. Among other purposes, the Compassionate Use
Act is intended
[t]o ensure that seriously ill
Californians have the right to obtain and use marijuana
for medical purposes where that medical use is deemed
appropriate and has been recommended by a physician who
has determined that the person's health would benefit
from the use of marijuana in the treatment of cancer,
anorexia, AIDS, chronic pain, spasticity, glaucoma,
arthritis, migraine, or any other illness for which
marijuana provides relief.
Id. § 11362.5(b)(1)(A). The Compassionate Use Act is
also intended "[t]o ensure that patients and their
primary caregivers who obtain and use marijuana for medical
purposes upon the recommendation of a physician are not
subject to criminal prosecution or sanction." Id. §
11362.5(b)(1)(B). To these ends, the Compassionate Use Act
exempts "a patient, or [ ] a patient's primary
caregiver, who possesses or cultivates marijuana for the
personal medical purposes of the patient upon the written or
oral recommendation or approval of a physician" from certain
other California code sections that make possession or
cultivation of marijuana illegal. Id. § 11362.5(d).
B. Factual Background
Appellants Angel McClary Raich and Diane Monson (the
"patient-appellants") are California citizens who currently
use marijuana as a medical treatment. Appellant Raich has
been diagnosed with more than ten serious medical
conditions, including an inoperable brain tumor,
life-threatening weight loss, a seizure disorder, nausea,
and several chronic pain disorders. Appellant Monson suffers
from severe chronic back pain and constant, painful muscle
spasms. Her doctor states that these symptoms are caused by
a degenerative disease of the spine.
Raich has been using marijuana as a medication for over
five years, every two waking hours of every day. Her doctor
contends that Raich has tried essentially all other legal
alternatives and all are either ineffective or result in
intolerable side effects; her doctor has provided a list of
thirty-five medications that fall into the latter category
alone. Raich's doctor states that foregoing marijuana
treatment may be fatal. Monson has been using marijuana as a
medication since 1999. Monson's doctor also contends that
alternative medications have been tried and are either
ineffective or produce intolerable side effects. As the
district court put it: "Traditional medicine has utterly
failed these women...."
Appellant Monson cultivates her own marijuana. Raich is
unable to cultivate her own. Instead, her two caregivers,
appellants John Doe Number One and John Doe Number Two, grow
it for her. These caregivers provide Raich with her
marijuana free of charge. They have sued anonymously in
order to protect Raich's supply of medical marijuana. In
growing marijuana for Raich, they allegedly use only soil,
water, nutrients, growing equipment, supplies and lumber
originating from or manufactured within California. Although
these caregivers cultivate marijuana for Raich, she
processes some of the marijuana into cannabis oils, balm,
and foods.
On August 15, 2002, deputies from the Butte County
Sheriff's Department and agents from the Drug Enforcement
Agency ("DEA") came to Monson's home. The sheriff's deputies
concluded that Monson's use of marijuana was legal under the
Compassionate Use Act. However, after a three-hour standoff
involving the Butte County District Attorney and the United
States Attorney for the Eastern District of California, the
DEA agents seized and destroyed Monson's six cannabis
plants.
C. Procedural History
Fearing raids in the future and the prospect of being
deprived of medicinal marijuana, the appellants sued the
United States Attorney General John Ashcroft and the
Administrator of the DEA Asa Hutchison on October 9, 2002.
Their suit seeks declaratory relief and preliminary and
permanent injunctive relief. They seek a declaration that
the CSA is unconstitutional to the extent it purports to
prevent them from possessing, obtaining, manufacturing, or
providing cannabis for medical use. The appellants also seek
a declaration that the doctrine of medical necessity
precludes enforcement of the CSA to prevent Raich and Monson
from possessing, obtaining, or manufacturing cannabis for
their personal medical use.
On March 5, 2003, the district court denied the
appellants' motion for a preliminary injunction. The
district court found that, "despite the gravity of
plaintiffs' need for medical cannabis, and despite the
concrete interest of California to provide it for
individuals like them," the appellants had not established
the required " 'irreducible minimum' of a likelihood of
success on the merits under the law of this Circuit...." The
appellants filed a timely notice of appeal on March 12,
2003. We have jurisdiction to hear this interlocutory appeal
pursuant to 28 U.S.C. § 1292(a)(1). [FN1]
STANDARD OF REVIEW
A district court's order regarding preliminary injunctive
relief is subject to limited review. United States v.
Peninsula Communications, Inc., 287 F.3d 832, 839 (9th
Cir.2002). The grant or denial of a preliminary injunction
will be reversed only where the district court abused its
discretion or based its decision on an erroneous legal
standard or on clearly erroneous findings of fact. Id. The
legal premises underlying a preliminary injunction are
reviewed de novo. See A & M Records, Inc. v. Napster,
Inc., 284 F.3d 1091, 1096 (9th Cir.2002); Foti v. City of
Menlo Park, 146 F.3d 629, 634-35 (9th Cir.1998) ("Although
we review a district court's decision to deny a motion for a
preliminary injunction for an abuse of discretion, we review
the legal issues underlying the district court's decision de
novo." (citations omitted)).
ANALYSIS
The traditional test for granting preliminary injunctive
relief requires the applicant to demonstrate: (1) a
likelihood of success on the merits; (2) a significant
threat of irreparable injury; (3) that the balance of
hardships favors the applicant; and (4) whether any public
interest favors granting an injunction. See Dollar Rent A
Car of Wash., Inc. v. Travelers Indem. Co., 774 F.2d 1371,
1374 (9th Cir.1985); see also SCHWARZER, TASHIMA &
WAGSTAFFE, CAL. PRAC. GUIDE: FED. CIV. PRO. BEFORE TRIAL,
¶ 13:44 at 13-15 (The Rutter Group 2003).
Our court also uses an alternative test that requires the
applicant to demonstrate either: a combination of probable
success on the merits and the possibility of irreparable
injury; or serious questions going to the merits and that
the balance of hardships tips sharply in the applicant's
favor. See First Brands Corp. v. Fred Meyer, Inc., 809 F.2d
1378, 1381 (9th Cir.1987). These two tests are not
inconsistent. Rather, they represent a continuum of
equitable discretion, whereby "the greater the relative
hardship to the moving party, the less probability of
success must be shown." Nat'l Ctr. for Immigrants Rights,
Inc. v. INS, 743 F.2d 1365, 1369 (9th Cir.1984).
A. The Merits of the Appellants' Case
Congress passed the CSA based on its authority under the
Commerce Clause of the Constitution. The Commerce Clause
grants Congress the power to "regulate Commerce with foreign
Nations, and among the several States, and with the Indian
Tribes...." U.S. Const. art. I, § 8, cl. 3. The
appellants argue that the Commerce Clause cannot support the
exercise of federal authority over the appellants'
activities. The Supreme Court expressly reserved this issue
in its recent decision, United States v. Oakland Cannabis
Buyers' Cooperative, 532 U.S. 483, 494 n. 7, 121 S.Ct. 1711,
149 L.Ed.2d 722 (2001) ("Nor are we passing today on a
constitutional question, such as whether the Controlled
Substances Act exceeds Congress' power under the Commerce
Clause."). We find that the appellants have demonstrated a
strong likelihood of success on their claim that, as applied
to them, the CSA is an unconstitutional exercise of
Congress' Commerce Clause authority. We decline to reach the
appellants' other arguments, which are based on the
principles of federalism embodied in the Tenth Amendment,
the appellants' alleged fundamental rights under the Fifth
and Ninth Amendments, and the doctrine of medical
necessity.
1. Defining the Class of Activities
The district court found that the Commerce Clause
supports the application of the CSA to the appellants.
Indeed, we have upheld the CSA in the face of past Commerce
Clause challenges. See United States v. Bramble, 103 F.3d
1475, 1479-80 (9th Cir.1996); United States v. Tisor, 96
F.3d 370, 375 (9th Cir.1996); United States v. Kim, 94 F.3d
1247, 1249-50 (9th Cir.1996); United States v. Visman, 919
F.2d 1390, 1393 (9th Cir.1990); United States v.
Montes-Zarate, 552 F.2d 1330, 1331 (9th Cir.1977); United
States v. Rodriguez-Camacho, 468 F.2d 1220, 1222 (9th
Cir.1972). But none of the cases in which the Ninth Circuit
has upheld the CSA on Commerce Clause grounds involved the
use, possession, or cultivation of marijuana for medical
purposes.
In arguing that these cases should govern here and should
foreclose the appellants' Commerce Clause challenge, the
appellees correctly note that " 'where 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, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)
(quoting Maryland v. Wirtz, 392 U.S. 183, 197 n. 27, 88
S.Ct. 2017, 20 L.Ed.2d 1020 (1968) (first emphasis added in
Lopez )). In Visman, we upheld the CSA on Commerce Clause
grounds and restated this principle: " 'Where 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.' " 919 F.2d at
1393 (quoting Perez v. United States, 402 U.S. 146, 154, 91
S.Ct. 1357, 28 L.Ed.2d 686 (1971)) (emphasis by Visman;
quotation marks omitted). [FN2]
But here the appellants are not only claiming that their
activities do not have the same effect on interstate
commerce as activities in other cases where the CSA has been
upheld. Rather, they contend that, whereas the earlier cases
concerned drug trafficking, the appellants' conduct
constitutes a separate and distinct class of activities: 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.
Clearly, the way in which the activity or class of
activities is defined is critical. We find that the
appellants' class of activities--the intrastate,
noncommercial cultivation, possession and use of marijuana
for personal medical purposes on the advice of a
physician--is, in fact, different in kind from drug
trafficking. For instance, concern regarding users' health
and safety is significantly different in the medicinal
marijuana context, where the use is pursuant to a
physician's recommendation. Further, the limited medicinal
use of marijuana as recommended by a physician arguably does
not raise the same policy concerns regarding the spread of
drug abuse. Moreover, 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
medicinal marijuana at issue in this case is not intended
for, nor does it enter, the stream of commerce.
A narrow categorization of the appellants' activity is
supported by our recent decision in United States v. McCoy,
323 F.3d 1114 (9th Cir.2003). In McCoy, we held that 18
U.S.C. § 2252(a)(4)(B), a statute purportedly
prohibiting the possession of child pornography, was
unconstitutional as applied to intrastate possession of a
visual depiction (or depictions) that has not been mailed,
shipped, or transported interstate and is not intended for
interstate distribution, or for any economic or commercial
use, including the exchange of the prohibited material for
other prohibited material. See McCoy, 323 F.3d at 1115.
McCoy involved a photograph taken at home of a mother and
daughter with their genital areas exposed. Id. at 1115. The
photograph never entered into and was never intended for
interstate or foreign commerce. Id. at 1132. The dissent in
McCoy argued that the majority had engaged in an
impermissible as-applied analysis, that the activity fell
within the language of the statute, and that the majority
was attempting to excise a particular act as trivial. See
id. at 1134, 1140-41 (Trott, J., dissenting). The majority
held that the conduct at issue in McCoy represents a
"substantial portion" of the conduct covered by the relevant
statute and therefore can be considered a separate class of
activity. Id. at 1132.
Under McCoy, the class of activities at issue in this
case can properly be defined as the intrastate,
noncommercial cultivation, possession and use of marijuana
for personal medical purposes on the advice of a physician
and in accordance with state law. This class of activities
does not involve sale, exchange, or distribution. As was the
case in McCoy, the class of activities here represents a
substantial portion of the conduct covered by the
statute--at the time of the motion for a preliminary
injunction, Alaska, Arizona, California, Colorado, Hawaii,
Maine, Nevada, Oregon, and Washington had passed laws
permitting cultivation and use of marijuana for medical
purposes. See McCoy, 323 F.3d at 1132 ("This class of
activity represents a substantial portion of the conduct
covered by [the statute].").
2. Substantial Effect on Interstate Commerce
We must now answer the question whether this class of
activities has an effect on interstate commerce sufficient
to make it subject to federal regulation under the Commerce
Clause. See Visman, 919 F.2d at 1392 ("In Perez ... the
Court ruled that the defendants' local, illegal activity of
loan sharking was within a 'class of activity' that
adversely affected interstate commerce and Congress had the
power to regulate it."). In two recent Commerce Clause
decisions, the Supreme Court has refined Commerce Clause
analysis. In Lopez 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d
626 (1995), the Court struck down the Gun-Free School Zones
Act of 1990 as an unconstitutional exercise of power under
the Commerce Clause. Lopez set forth three categories of
activity that Congress may properly regulate under the
Commerce Clause: the "use of the channels of interstate
commerce"; the "instrumentalities of interstate commerce, or
persons or things in interstate commerce, even though the
threat may come only from intrastate activities"; and "those
activities having a substantial relation to interstate
commerce, i.e., those activities that substantially affect
interstate commerce." 514 U.S. at 558-59 (citations
omitted). This case involves the third category of
activity.
In United States v. Morrison, 529 U.S. 598, 120 S.Ct.
1740, 146 L.Ed.2d 658 (2000), the Supreme Court clarified
Commerce Clause analysis under this third category. In that
case, the Court held that the Violence Against Women Act was
an invalid exercise of federal power under the Commerce
Clause. 529 U.S. at 627. Morrison established a controlling
four-factor test for determining whether a regulated
activity "substantially affects" interstate commerce: (1)
whether the statute regulates commerce or any sort of
economic enterprise; (2) whether the statute contains any
"express jurisdictional element that might limit its reach
to a discrete set" of cases; (3) whether the statute or its
legislative history contains "express congressional
findings" regarding the effects of the regulated activity
upon interstate commerce; and (4) whether the link between
the regulated activity and a substantial effect on
interstate commerce is "attenuated." Morrison, 529 U.S. at
610-12; see also McCoy, 323 F.3d at 1119. The first and the
fourth factors are the most important. McCoy, 323 F.3d at
1119.
a. Whether the Statute Regulates Commerce or Any Sort of
Economic Enterprise
As applied to the limited class of activities presented
by this case, the CSA does not regulate commerce or any sort
of economic enterprise. The cultivation, possession, and use
of marijuana for medicinal purposes and not for exchange or
distribution is not properly characterized as commercial or
economic activity. Lacking sale, exchange or distribution,
the activity does not possess the essential elements of
commerce. See BLACK'S LAW DICTIONARY (7th ed.1999)
("commerce": "The exchange of goods and services, esp. on a
large scale involving transportation between cities, states,
and nations."). [FN3]
On this point, the instant case is again analogous to
McCoy. The McCoy court concluded "that simple intrastate
possession is not, by itself, either commercial or economic
in nature, that a 'home-grown' picture of a child taken and
maintained for personal use is not a fungible product, and
that there is no economic connection--supply and demand or
otherwise--between possession of such a picture and the
national multi-million dollar commercial pornography
industry." Id. at 1131.
As the photograph in McCoy stood in contrast to the
commercial nature of the larger child pornography industry,
so does the medicinal marijuana use at issue in this case
stand in contrast to the larger illicit drug trafficking
industry. And it is the commercial nature of drug
trafficking activities that has formed the basis of prior
Ninth Circuit decisions upholding the CSA on Commerce Clause
grounds. See, e.g., Tisor, 96 F.3d at 375 ("Intrastate
distribution and sale of methamphetamine are commercial
activities. The challenged laws are part of a wider
regulatory scheme criminalizing interstate and intrastate
commerce in drugs." (emphasis added)); Kim, 94 F.3d at 1250
("After Lopez, we again acknowledged that drug trafficking
affects interstate commerce." (emphasis added)).
The parties debate whether the "aggregation principle" of
Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122
(1942), should be employed, presumably to support a finding
that the cumulative effect of the activities in this case
has a commercial impact. As the regulated activity in this
case is not commercial, Wickard 's aggregation analysis is
not applicable. Morrison, 529 U.S. at 611 n. 4
("[I]n every case where we have sustained federal
regulation under the aggregation principle in Wickard ...
the regulated activity was of an apparent commercial
character."); McCoy, 323 F.3d at 1120 ("In Lopez, the court
approved of Wickard 's rationale only in relation to
activity the economic nature of which was obvious." (citing
Lopez, 514 U.S. at 558)); United States v. Ballinger, 312
F.3d 1264, 1270 (8th Cir.2002) ("No such aggregation of
local effects is constitutionally permissible in reviewing
congressional regulation of intrastate, non-economic
activity."). [FN4]
The majority in McCoy went on to examine whether the
possession of child pornography at issue in that case could
fit within the Wickard analysis, largely because a
pre-Morrison Third Circuit decision had done just that. See
323 F.3d at 1121-22. The parties pick up on this discussion
and debate whether, unlike the child pornography in McCoy,
the marijuana at issue here is "fungible" such that the
aggregation principle should apply. This debate is
unnecessary in light of Supreme Court precedent suggesting
that the aggregation principle should only be applied where
the activity's commercial character is apparent. See
Morrison, 529 U.S. at 611 n. 4. Here it is not. Moreover,
McCoy settled the fungibility issue less by looking at
whether the item was one that could be freely exchanged or
replaced (what one might consider to be the important
characteristics of fungibility) and more by simply
concluding that the photograph at issue in that case was
"meant entirely for personal use, without ... any intention
of exchanging it for other items of child pornography, or
using it for any other economic or commercial reasons. Nor
is there any reason to believe that [Rhonda McCoy]
had any interest in acquiring pornographic depictions of
other children." 323 F.3d at 1122. Under these standards,
the marijuana at issue in this case is similarly
non-fungible, as its use is personal and the appellants do
not seek to exchange it or to acquire marijuana from others
in a market.
Therefore, we conclude that the first Morrison factor
favors a finding that the CSA, as applied to the facts of
this case, is unconstitutional under the Commerce Clause.
[FN5]
b. Whether the Statute Contains Any Express
Jurisdictional Element That Might Limit Its Reach
The second factor examines whether the statute contains a
"jurisdictional hook" (i.e., limitation) that would limit
the reach of the statute to a discrete set of cases that
substantially affect interstate commerce. See McCoy, 323
F.3d at 1124. No such jurisdictional hook exists in relevant
portions of the CSA. See County of Santa Cruz, 279 F.Supp.2d
at 1209. Therefore, this factor favors a finding that
Congress has exceeded its powers under the Commerce
Clause.
c. Whether the Statute or Its Legislative History
Contains Express Congressional Findings Regarding the
Effects of the Regulated Activity Upon Interstate
Commerce
Congress clearly made certain findings in the CSA
regarding the effects of intrastate activity on interstate
commerce. These findings do not specifically address the
class of activities at issue here. Relevant findings
include:
(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, is
it 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.
21 U.S.C. § 801. As noted above, supra note 4, these
findings are primarily concerned with the trafficking or
distribution of controlled substances. Nevertheless, they
provide some evidence that intrastate possession of
controlled substances may impact interstate commerce.
Therefore, the third factor weighs in favor of finding
the CSA constitutional under the Commerce Clause. But it is
worth reiterating two things in this respect. First, there
is no indication that Congress was considering anything like
the class of activities at issue here when it made its
findings. The findings are not specific to marijuana, much
less intrastate medicinal use of marijuana that is not
bought or sold and the use of which is based on the
recommendation of a physician. Common sense indicates that
the findings related to this specific class of activities
would be significantly different from the findings relating
to the effect of drug trafficking, generally, on interstate
commerce. [FN6]
Second, Morrison counsels courts to take congressional
findings with a grain of salt.
[T]he existence of congressional findings is not
sufficient, by itself, to sustain the constitutionality of
Commerce Clause legislation. As we stated in Lopez,
[s]imply because Congress may conclude that a
particular activity substantially affects interstate
commerce does not necessarily make it so. Rather,
[w]hether particular operations affect interstate
commerce sufficiently to come under the constitutional power
of Congress to regulate them is ultimately a judicial rather
than a legislative question, and can be settled finally only
by this Court.
Morrison, 529 U.S. at 614 (citations and quotation marks
omitted). As noted above, it is not the existence of
congressional findings, but rather the first and fourth
factors--whether the statute regulates commerce or any sort
of economic enterprise and whether the link between the
regulated activity and a substantial effect on interstate
commerce is "attenuated"--that are considered the most
significant in this analysis. [FN7] McCoy, 323 F.3d
at 1119.
d. Whether the Link Between the Regulated Activity and a
Substantial Effect on Interstate Commerce Is
"Attenuated"
The final Morrison factor examines whether the link
between the regulated activity and a substantial effect on
interstate commerce is "attenuated." The connections in this
case are, indeed, attenuated. Presumably, the intrastate
cultivation, possession and use of medical marijuana on the
recommendation of a physician could, at the margins, have an
effect on interstate commerce by reducing the demand for
marijuana that is trafficked interstate. It is far from
clear that such an effect would be substantial. The
congressional findings provide no guidance in this respect,
as they do not address the activities at issue in the
present case. Although not binding, other judges that have
looked at the specific question presented here have found
that the connection is attenuated. As one of our colleagues
wrote recently: "Medical marijuana, when grown locally for
personal consumption, does not have any direct or obvious
effect on interstate commerce. Federal efforts to regulate
it considerably blur the distinction between what is
national and what is local." Conant v. Walters, 309 F.3d
629, 647 (9th Cir.2002) (Kozinski, J., concurring) (citation
omitted). The district court in County of Santa Cruz also
seriously questioned the strength of the link between such
activities and interstate commerce. See County of Santa
Cruz, 279 F.Supp.2d at 1209 ("The fourth factor--whether the
link between [medical marijuana use] and a
substantial affect on interstate commerce is
attenuated--arguably favors Plaintiffs."). [FN8]
Therefore, we conclude that this factor favors a finding
that the CSA cannot constitutionally be applied to the class
of activities at issue in this case.
On the basis of our consideration of the four factors, we
find that the CSA, as applied to the appellants, is likely
unconstitutional. See McCoy, 323 F.3d at 1124 ("It is
particularly important that in the field of criminal law
enforcement, where state power is preeminent, national
authority be limited to those areas in which interstate
commerce is truly affected.... The police power is,
essentially, reserved to the states, Morrison, 529 U.S. at
618.... That principle must guide our review of Congress's
exercise of Commerce Clause power in the criminal law
area."); see also Morrison, 529 U.S. at 610 ("[A]
fair reading of Lopez shows that the noneconomic, criminal
nature of the conduct at issue was central to our decision
in that case.").
Therefore, we find that the appellants have made a strong
showing of the likelihood of success on the merits of their
case.
B. Hardship and Public Interest Factors
The appellants contend that considerations of hardship
and the public interest factors in this case require entry
of the requested preliminary injunction. [FN9] The
district court found that,
[w]hile there is a public interest in the
presumption of constitutional validity of congressional
legislation, and while regulation of medicine by the FDA is
also important, the Court finds that these interests wane in
comparison with the public interests enumerated by
plaintiffs and by the harm that they would suffer if denied
medical marijuana.
The district court nevertheless denied the injunction
given its findings regarding the merits of the case:
"[D]espite the gravity of the plaintiffs' need for
medical cannabis, and despite the concrete interest of
California to provide it for individuals like them, the
Court is constrained from granting their request." We find
that the hardship and public interest factors tip sharply in
the appellants' favor.
There can be no doubt on the record as to the significant
hardship that will be imposed on the patient-appellants if
they are denied a preliminary injunction. The appellees do
not dispute this. Instead, the appellees argue that Oakland
Cannabis Buyers' Cooperative precludes a finding that the
public interest favors the appellants. The appellees quote:
"[A] court sitting in equity cannot ignore the
judgment of Congress, deliberately expressed in
legislation." Oakland Cannabis Buyers' Coop., 532 U.S. at
497 (quotation marks omitted). However, the relevant portion
of that case dealt with what factors a district court may
consider when fashioning injunctive relief. See id. at
495-98. It did not address the constitutional challenges at
issue here that call the very foundation of the CSA into
question as applied to the class of activities at issue in
this case. Therefore, the Court's admonitions [FN10]
are not relevant to this case. It would be absurd for the
Court to have meant that, no matter how strong the showing
of unconstitutionality, the statute must be enforced.
The appellees also contend that granting the appellants'
requested injunction would create a slippery slope as other
plaintiffs seeking use of other schedule I controlled
substances would bypass the statutory process established by
Congress. The appellees claim that the appellants' proposed
injunction therefore has the potential to significantly
undermine the FDA drug approval process. Our holding is
sufficiently narrow to avoid such concerns. Moreover, there
is nothing contrary to the public interest in allowing
individuals to seek relief from a statute that is likely
unconstitutional as applied to them. The public interest of
the state of California and its voters in the viability of
the Compassionate Use Act also weighs against the appellees'
concerns. Cf. New State Ice Co. v. Liebmann, 285 U.S. 262,
311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J.,
dissenting) ("It is one of the happy incidents of the
federal system that a single courageous state may, if its
citizens choose, serve as a laboratory; and try novel social
and economic experiments without risk to the rest of the
country."). Finally, the appellees' speculative slippery
slope concern is weak in comparison to the real medical
emergency facing the patient-appellants in this case.
CONCLUSION
For the reasons discussed above, we reverse the district
court. We find that the appellants have demonstrated a
strong likelihood of success on the merits. This conclusion,
coupled with public interest considerations and the burden
faced by the appellants if, contrary to California law, they
are denied access to medicinal marijuana, warrants the entry
of a preliminary injunction. We remand to the district court
for entry of a preliminary injunction consistent with this
opinion.
REVERSED AND REMANDED.
BEAM, Circuit Judge, dissenting.
It is simply impossible to distinguish the relevant
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, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942).
Accordingly, I dissent.
I.
At the outset, I note a justiciability problem that has
not been addressed by the parties, the district court or the
opinion of the panel majority. Although plaintiffs assert an
"as applied" challenge to the workings of the Controlled
Substances Act (CSA), the pleadings and evidentiary showings
do not disclose, except with one possible exception, that
the CSA has actually been applied to any of plaintiffs'
activities. This, of course, raises the question of whether
this case is ripe for review and, in turn, whether
plaintiffs have standing to bring this case before the
court.
"[W]here it is impossible to know whether a party
will ever be found to have violated a statute, or how, if
such a violation is found, those charged with enforcing the
statute will respond, any challenge to that statute is
premature." Alaska Airlines, Inc. v. City of Long Beach, 951
F.2d 977, 986 (9th Cir.1991). To satisfy Article III's
standing requirements, a plaintiff must show that she has
suffered a concrete and particularized injury in fact that
is actual or imminent (not conjectural or hypothetical).
Plaintiff must also show that the injury is fairly traceable
to the challenged action of the defendant and that it is
likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision. Citizens for
Better Forestry v. United States Dep't of Agric., 341 F.3d
961, 969 (9th Cir.2003).
In determining whether these jurisdictional prerequisites
are satisfied, a court must determine whether the plaintiff
has a "a realistic danger of sustaining a direct injury as a
result of the statute's operation or enforcement." Babbitt
v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99
S.Ct. 2301, 60 L.Ed.2d 895 (1979). In asking for injunctive
relief, plaintiffs bear a special burden of showing real or
immediate threat of irreparable injury when the conduct they
are seeking to enjoin has not yet occurred-it is not enough
to show past injury. San Diego County Gun Rights Comm. v.
Reno, 98 F.3d 1121, 1126 (9th Cir.1996). And, the mere
existence of a statute which plaintiffs feel they will be
forced to violate is not sufficient to create an Article III
case or controversy. Thomas v. Anchorage Equal Rights
Comm'n, 220 F.3d 1134, 1139 (9th Cir.2000) (en banc).
In San Diego County Gun Rights, the court considered a
pre-enforcement challenge to the constitutionality of the
Violent Crime Control and Law Enforcement Act. The district
court had dismissed the claims for lack of standing and
ripeness because none of the individual plaintiffs had been
prosecuted, arrested or incarcerated for violation of the
Act. The plaintiffs challenged the Act on Commerce Clause
grounds, [FN1] and argued they had standing based
on, among other things, threat of future prosecution. The
court noted that in order to show an imminent and genuine
threat of future prosecution, the plaintiffs must have
articulated concrete plans to violate the statute. 98 F.3d
at 1127. Plaintiffs can meet this prong by showing that they
have in the past violated the act and intend to continue
engaging in prohibited acts in the future. Id. (citing
Babbitt, 442 U.S. at 303.) Next, there must be a specific
threat of prosecution, and the plaintiffs bear the burden of
showing that the act in question is actually being enforced.
Id. A specific warning of prosecution may suffice, but "a
general threat of prosecution is not enough to confer
standing." Id. Finally, the plaintiffs can meet their burden
to show standing in a threat-of-prosecution situation by
showing past prosecutions under the act in question. Id. at
1128. Because the gun rights plaintiffs could not establish
the foregoing requirements, they did not meet their burden
of showing they had Article III standing for their claim.
Id. at 1129.
With regard to ripeness, the court noted that the issue
must be "fit for judicial decision" and that "the parties
will suffer hardship if we decline to consider the issues."
Id. at 1132. Because the issues were not "purely legal" and
because the plaintiffs had not been threatened with
prosecution, the court found that the claims were not ripe
for adjudication. Id.; see also Thomas, 220 F.3d at 1138-39
(holding that landlords who vowed not to follow an
anti-discrimination housing statute did not have a
justiciable claim for injunctive relief when they had not
yet violated the statute and had certainly not been
prosecuted for any violation).
In this case plaintiffs allege three instances of injury
in their prayer for relief. They ask the court to enjoin the
DEA from: 1) arresting or prosecuting them or their
caregivers for possession and/or cultivation of marijuana;
2) seizing their medical cannabis; 3) seeking civil or
administrative sanctions against them or their
caregivers-and to declare the CSA unconstitutional as
applied to them through these acts. (Plaintiffs' Petition at
12-13). According to the petition, some of Monson's
marijuana plants have already been seized, and past history
suggests that if the DEA can find out where Raich's plants
are, they will be seized as well. Thus, I concede that it is
at least arguable that claim two, the "seizing" claim, may
be actionable. However, applying San Diego County Gun Rights
to the injuries alleged in claims one and three, it is clear
that they are not ripe for review.
With regard to these two claims, the intent to violate
the statute requirement is likely met. Plaintiffs have
violated the CSA in the past, and indicate that they will
continue to do so in the future. However, plaintiffs do not
show there is a threat of future prosecution or a history of
past prosecutions, at least as applied to their unique
factual situations. I doubt whether anyone can or will
seriously argue that the DEA intends to prosecute these two
seriously ill individuals. E.g., Alex Kreit, Comment, The
Future of Medical Marijuana: Should the States Grow Their
Own?, 151 U. Pa. L.Rev. 1787, 1799 n. 85 (2003) (noting that
"DEA's limited resources make it practically impossible for
its officers to enforce minor possession laws without
extensive cooperation from state police").
While we can speculate on whether future prosecution is
likely (given the fact that they are known users and
possessors and they have not yet been arrested or
prosecuted), it is the plaintiffs' burden to show standing,
not this court's burden to disprove it. Carroll v. Nakatani,
342 F.3d 934, 945 (9th Cir.2003) ("The party invoking
federal jurisdiction, not the district court, bears the
burden of establishing Article III standing."). Because this
particular issue was not briefed or argued by the parties,
or mentioned by the district court, we should remand the
case to the lower court to determine whether the threat of
criminal prosecution and the possible levying of civil
administrative penalties are matters which are ripe for
review. I suggest that such a hearing will undoubtedly
reveal that plaintiffs simply use this action to seek an
advance judicial ruling on government actions that may never
be applied to them or to similarly situated individuals, if
any such persons presently exist in California.
[FN2]
II. Because the plaintiffs arguably may have standing to
assert one ripe claim of future injury, the seizure claim, I
address the merits of their Commerce Clause arguments. In
Wickard, an Ohio wheat farmer (Filburn) was fined for
growing excess acres of wheat on his small farm. Filburn was
charged with violation of the Agricultural Adjustment Act of
1938, which was enacted to control the volume of wheat
moving in foreign and interstate commerce, an effort by
Congress to address, in part, surpluses, shortages and
resulting extreme price variations. Filburn asserted that
the Act was an unconstitutional exercise of Congress's
Commerce Clause powers because it purported to regulate
farm- cultivated wheat milled into flour for on-the-farm
family consumption and also used for producing poultry and
livestock products which were partly consumed by the Filburn
family. [FN3] The Court rejected this argument,
stating, "even if [the] activity be local and though
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." Id. at
125. The Court then found these activities constituted a
substantial economic effect. Id. at 128-29.
Notably, the Court stated, "[t]hat appellee's own
contribution to the demand for wheat may be trivial by
itself is 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." Id. at 127-28. Rationales in support of
congressional regulation of how much wheat could be grown on
an individual farm included: that wheat growing for whatever
purpose was an important commercial enterprise in and among
the various states; that wheat surplus and price
fluctuations had been a significant economic problem; that
several other wheat growing countries had instilled similar
growing quotas and price guarantees; and that the direct and
indirect consumption of wheat on the farm where it was grown
was the "most variable factor in the disappearance of the
wheat crop." Id. at 125-27.
Except for why the marijuana at issue in this case is
consumed, i.e., for medicinal rather than nutritional
purposes, plaintiffs' conduct is entirely indistinguishable
from that of Mr. Filburn's. The Agriculture Adjustment Act
reached Filburn's wheat growing activities, even that part
of the crop grown, directly and indirectly, for family food
consumed in the home on the Filburn farm. Here, under the
precedent established in Wickard, the CSA clearly reaches
plaintiffs' activities, even though they grow, or take
delivery of marijuana grown by surrogates, for personal
consumption as medicine in the home as permitted by
California, but not federal, law.
In reaching its decision, the court defines the regulated
class as "the intrastate, noncommercial cultivation,
possession and use of marijuana for personal medical
purposes on the advice of a physician." Ante at 13. The
Wickard Court could easily have defined the class of
activities as "the intrastate, noncommercial cultivation of
wheat for personal food purposes." Plaintiffs argue that
Wickard is distinguishable because Filburn was engaged in
the commercial activity of farming, while their activities
are purely non- economic. [FN4] This argument fails
on two fronts. The cultivation of marijuana for medicinal
purposes is commercial in nature. The argument ignores 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. And, the growing of wheat for family
consumption as flour, which was and is a legal enterprise in
Ohio and other states, is as non-economic as it is possible
to get with cultivated crops.
The Court in United States v. Lopez, 514 U.S. 549,
560-61, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) and United
States v. Morrison, 529 U.S. 598, 610, 120 S.Ct. 1740, 146
L.Ed.2d 658 (2000), expressly affirmed the continuing
validity of Wickard. And, when put to the tests developed by
Lopez and clarified in Morrison, the CSA clearly passes
constitutional muster especially as applied to the
plaintiffs. At the risk of some redundancy, I review each
Morrison refinement under the allegations plaintiffs make in
this case.
A. Is this particular activity economic or non-economic,
but necessarily regulated as part of a larger regulatory
scheme?
Even assuming that the court has correctly defined the
class-"the intrastate, noncommercial cultivation, possession
and use of marijuana for personal medical purposes on the
advice of a physician"-the conduct at issue is subject to
regulation. First, as earlier stated, I respectfully
disagree with the court's insertion of the term
"noncommercial" into the class definition because the
activity at issue here is economic. Plaintiffs 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. As also earlier indicated,
this activity is essentially indistinguishable from the
activity in Wickard, and our sister circuits have recognized
the similarities. See Proyect v. United States, 101 F.3d 11,
14 (2d Cir.1996) (per curiam) (rejecting Commerce Clause
challenge to a conviction under 21 U.S.C. § 841(a)(1)
for growing marijuana even though there was no evidence that
the drug was intended for interstate distribution). In
Proyect, the court noted that cultivation of marijuana for
individual use did affect commerce in the same way that
Filburn's personal consumption of wheat did: In any event,
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." Wickard v. Filburn, 317 U.S. 111, 128, 63 S.Ct. 82,
91, 87 L.Ed. 122 (1942). 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. Id. at 128-29,
63 S.Ct. at 90-91.
Proyect, 101 F.3d at 14 n. 1. [FN5]
Similarly, cultivating marijuana for personal
[FN6] use keeps plaintiffs from seeking an outside
source of either marijuana, or possibly, a (federally)
legally prescribed and dispensed drug such as Marinol-both
of which are articles of interstate commerce. As with the
wheat consumed as food by the Filburns, plaintiffs are
supplying their own needs, here symptom-relieving drugs,
without having to resort to the outside marketplace. This
deportment obviously has an effect upon interstate
commerce.
However, even if the word "non-economic" is rightly
included within the court's class definition, plaintiffs'
behavior is still reached if its regulation is essential to
reaching the larger commercial activity. In United States v.
Leshuk, 65 F.3d 1105 (4th Cir.1995), the court held that the
Lopez opinion did not alter its previous holding that the
possession prohibitions in the CSA were a constitutional
exercise of Congress's powers pursuant to the Commerce
Clause. Id. at 1112. Further, the court noted that the act
was not unconstitutional as applied if his possession and
cultivation were for personal use and did not substantially
affect interstate commerce. Although a conviction under the
Drug Act does not require the government to show that the
specific conduct at issue substantially affected interstate
commerce ... Lopez expressly reaffirmed the principle that
"where 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."
Id. (quoting Lopez, 514 U.S. at 558 (quoting Maryland v.
Wirtz, 392 U.S. 183, 197 n. 27, 88 S.Ct. 2017, 20 L.Ed.2d
1020 (1968))) (emphasis added). See also Proyect, 101 F.3d
at 14 (quoting the same passage from Lopez ); United States
v. Wall, 92 F.3d 1444, 1461 (6th Cir.1996) (Boggs, J.,
concurring and dissenting) (noting that noncommercial
activity is subject to congressional oversight when "its
regulation is an essential part of the regulation of some
commercial activity").
Prior to Lopez and Morrison, this circuit held that the
CSA does not violate the Commerce Clause. In United States
v. Visman, 919 F.2d 1390 (9th Cir.1990), the court found
that marijuana plants "rooted in the soil" (and therefore
which could not have crossed state lines) do affect
interstate commerce. Id. at 1392-93. The court deferred to
Congress's findings that "controlled substances have a
detrimental effect on the health and general welfare of the
American people and that intrastate drug activity affects
interstate commerce." Id. at 1393. Notably, the court held
that "local criminal cultivation of marijuana is within a
class of activities that adversely affects interstate
commerce." Id. (emphasis added).
Then, in United States v. Kim, 94 F.3d 1247, 1250 (9th
Cir.1996), this circuit affirmed the continuing validity of
Visman in light of the Lopez decision. See also United
States v. Tisor, 96 F.3d 370, 374 (9th Cir.1996) (rejecting
Commerce Clause challenge to the CSA after Lopez ).
Furthermore, In United States v. Bramble, 103 F.3d 1475,
1479 (9th Cir.1996), the court affirmed, with little
comment, the district court's rejection of the defendant's
Commerce Clause challenge in his conviction for simple
possession of marijuana. The Bramble district court noted
congressional findings that local distribution and
possession of illegal drugs contribute to ever increasing
interstate drug trafficking. So, even though Bramble was
guilty of only simple possession, it was clearly recognized
that "there is an interstate market for illegal drugs." 894
F.Supp. 1384, 1395 (D.Haw.1995).
Of course, none of these cases involve the precise,
unique facts involved in this litigation, where plaintiffs
are medicinal users of marijuana, grow their own supply or
obtain it free of charge from surrogate producers, and do so
lawfully under state law. However, because the
just-described conduct is still illegal under federal law,
there is no meaningful distinction [FN7] between the
simple possessor in Bramble and plaintiffs. If Congress
cannot reach individual narcotic growers, possessors, and
users, its overall statutory scheme will be totally
undermined. The goal of the CSA is to prevent the interstate
marijuana trade, even medicinal marijuana. Because
plaintiffs' actions violate a federal statute, inclusion in
the class formulation "for personal medical purposes on the
advice of a physician" adds nothing to the analysis. While
this result may seem unduly harsh since the plaintiffs are
seriously ill, in the eyes of the DEA agent, there is no
legal distinction between the simple user and possessor in
Bramble and Leshuk and the plaintiffs.
That medicinal marijuana is acceptable in several states
surrounding California also undermines the court's
conclusion. Even if the plants are grown for purely
medicinal purposes, it is probable that an interstate market
for medicinal marijuana has developed with users from
surrounding jurisdictions. All of this contributes to
"swelling the interstate traffic in such substances." 21
U.S.C. § 801(4) (Congressional findings in support of
the CSA). Thus, the activity in question here is almost
certainly economic, but even if it is not, as held in Lopez,
its regulation is essential for Congress's regulation of the
larger economic activity of the drug trade.
B. Does the CSA contain a jurisdictional element?
A jurisdictional element is a specific provision in a
federal statute which would require the government to
establish facts "justifying the exercise of federal
jurisdiction in connection with any individual application
of the statute." United States v. Rodia, 194 F.3d 465, 471
(3d Cir.1999). There is nothing in the statute at issue here
which makes a connection to interstate commerce an element
of the offense.
C. Were there adequate congressional findings?
As noted in Visman, Kim and Bramble, the congressional
findings in the CSA have already been relied upon by this
circuit. See also United States v. Rodriquez-Camacho, 468
F.2d 1220, 1221-22 (9th Cir.1972). Admittedly, the findings
do not address the specific use at issue here-cultivation
and personal use for medicinal purposes. However, because
medicinal use is not permitted by federal law, I fail to see
how this is a particularly relevant concern. Congressional
findings contained in 21 U.S.C. § 801(4) specifically
state that, "Local distribution and possession of controlled
substances contribute to swelling the interstate traffic in
such substances." As pointed out above, plaintiffs' conduct
does, or will, contribute to swelling the interstate traffic
in marijuana, including medicinal marijuana.
D. What is the extent of the attenuation between this
conduct and interstate commerce?
Finally, the court contends that circuit precedent
dictates that we recognize such a degree of attenuation
between the plaintiffs' conduct and interstate commerce that
the connection is effectively severed. I disagree. I begin
by acknowledging the dicta in the concurring opinion in
Conant v. Walters-"Medical marijuana, when grown locally for
personal consumption, does not have any direct or obvious
effect on interstate commerce." Conant v. Walters, 309 F.3d
629, 647 (9th Cir.2002) (Kozinski, J., concurring), cert.
denied, --- U.S. ----, 124 S.Ct. 387, --- L.Ed.2d ----
(2003). On the other hand, Congress contemplated individual
growers, possessors and users when it made its findings
regarding the CSA. 21 U.S.C. § 801(4). And, in light of
the growing interstate community of medicinal marijuana
users, the attenuation is not great, even, perhaps,
nonexistent. Accordingly, an evaluation of any attenuation
factor favors the CSA's constitutionality.
Plaintiffs, and the court, rely extensively on this
circuit's decision in United States v. McCoy, 323 F.3d 1114
(9th Cir.2003), but the case does not bear the weight the
court places on it. It is distinguishable in at least one
[FN8] key respect-marijuana is a cultivated,
fungible commodity that has objective and readily
transferable value in the marketplace, as compared with the
noncommercial aspects of the home photograph taken by Ms.
McCoy for her personal use. See id. at 1120. While it is
clear that plaintiffs do not propose to sell or share their
marijuana with others similarly situated (or even not
similarly situated), they could. This is almost certainly
not true of the McCoy family photograph.
This circuit's more recent decision in United States v.
Stewart, 348 F.3d 1132, 2003 WL 22671036 (9th Cir.2003) does
not alter my conclusions. In Stewart, a case that I
respectfully believe was wrongly decided, the court
invalidated the defendant's conviction for possession of
five home-assembled machine guns. The court found that 18
U.S.C. § 922(o) was an invalid exercise of Congress's
commerce power as applied to a defendant who assembled parts
into a machine gun by himself at home. The court held that
because only the machine gun parts moved in interstate
commerce, and because the guns were unique in that they
could only have been made by the defendant himself (they
were not part of a machine gun "kit," akin to a "chair from
IKEA"), the activity was, according to a majority of the
panel, beyond Congress's commerce power. Id. at *3.
Purportedly applying the Morrison test, the Stewart court
found that possessing machine guns was not economic
activity. The court noted that "[w]hatever its
intended use, without some evidence that it will be sold or
transferred-and there is none here-its relationship to
interstate commerce is highly attenuated." Id. at *4.
Furthermore, the overall regulation did not have an economic
purpose. Id. This gun regulatory scenario is distinguishable
[FN9] from that of the CSA and the plaintiffs'
possession of the fungible, readily marketable economic
commodity at issue here-the marijuana plants. There is
nothing unique about Raich and Monson's marijuana seeds or
the plants they produce, and in Raich's situation the
marijuana plants were clearly "transferred" to her from her
horticulturally inclined surrogates.
The Stewart court rejected the district court's reasoning
that the activity was reachable because the parts had moved
in interstate commerce, noting "[a]t some level, of
course, everything we own is composed of something that once
traveled in commerce." Id. at *2. With respect, I disagree,
and a prime example of the frailty of this reasoning is Mr.
Filburn's home-consumed wheat. Unless we trace the
components of that wheat to an unacceptable level (and argue
that the nitrogen and other nutrients taken up through the
roots, the oxygen absorbed through the leaves and the water
absorbed from the soil, all in furtherance of the wheat's
growth process, had moved in interstate commerce), I don't
believe that the commodity involved in Wickard was composed
of any parts that had ever moved in interstate commerce.
[FN10] Yet the grain was still deemed by the Supreme
Court to be the proper subject of congressional regulation
through the commerce power. If Mr. Filburn's wheat
production for home use was federally regulable, and Wickard
v. Filburn remains binding precedent in this and every other
circuit, as it does, plaintiffs' marijuana plants are
subject to congressional regulation under the CSA.
III. Three out of the four Morrison factors favor
regulation, and the conduct in this case is
indistinguishable from the conduct at issue in Wickard v.
Filburn. Accordingly, I dissent.
FN* The Honorable C. Arlen Beam, Senior Circuit Judge for
the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
FN1. As a threshold matter, the
dissent questions the justiciability of this case. The
dissent states that the plaintiffs "allege three instances
of injury in their prayer for relief" and believes that two
of these "injuries" are not ripe for review. The dissent
essentially concedes, however, that based on the threat of
future seizure of their plants, the plaintiffs have standing
and their claims are ripe. This is all that is required for
the plaintiffs to challenge the constitutionality of the CSA
as applied to them. Once the plaintiffs have established
standing on their claim that challenges the
constitutionality of the CSA as applied to them, they are
entitled to any appropriate remedies that necessarily follow
from demonstrating the likelihood of success on that claim
of unconstitutionality. The remedies sought are not properly
understood as separate "injuries." All of the relief sought
by the plaintiffs necessarily follows from the claim--the
challenge to the constitutionality of the CSA
as-applied--for which they undisputedly have standing and
which is clearly ripe. This result is completely consistent
with the case or controversy requirement of Article III. See
California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088,
1094 n. 2 (9th Cir.2003) (noting that, whether characterized
as a question of standing or ripeness, "we ask whether there
exists a constitutional case or controversy and whether the
issues presented are definite and concrete, not hypothetical
and abstract." (quotation marks omitted)).
FN2. Visman upheld the
application of the CSA to the intrastate criminal
cultivation of marijuana plants found rooted in soil but
intended for sale. See 919 F.2d at 1392-93.
FN3. Although the Doe appellants
are providing marijuana to Raich, there is no "exchange"
sufficient to make such activity commercial in character. As
Raich states in her declaration: "My caregivers grow my
medicine specifically for me. They do not charge me, nor do
we trade anything. They grow my medicine and give it to me
free of charge."
FN4. The dissent relies on
Proyect v. United States, 101 F.3d 11 (2d Cir.1996), to
support the proposition that the activities at issue in this
case are "essentially indistinguishable from the activity in
Wickard ...." In this vein, the dissent argues that the
appellants' marijuana "could be sold in the marketplace, and
... is also being used for medicinal purposes in place of
other drugs which would have to be purchased in the
marketplace." Proyect is distinguishable from the instant
case. Although the individual in Proyect argued that his
activities could not be regulated under the Commerce Clause
because his marijuana was allegedly for personal
consumption, the case involved over 100 marijuana plants and
the court found that it was "very unlikely that he
personally intended to consume all of his crop...." 101 F.3d
at 13. Moreover, while Proyect argued that the marijuana was
only for his personal consumption, he did not allege that it
was for medicinal purposes. Therefore the class of
activities involved in this case is significantly different
from the class of activities involved in Proyect.
FN5. In a recent decision, a
district court reached the opposite conclusion as to this
factor. The court defined the class of activities as
"intrastate cultivation and possession of marijuana for
medicinal purposes...." County of Santa Cruz v. Ashcroft,
279 F.Supp.2d 1192, 1208 (N.D.Cal.2003). The court concluded
that "the declarations and findings of Congress in adopting
the CSA make clear that Congress considers such activity to
have a substantial effect on interstate commerce because
controlled substances are fungible items that influence and
contribute to a national black market for controlled
substances regardless of the purposes for which they are
used." Id. at 1209. This analysis is flawed because the
congressional findings relied upon do not address the
specific class of activities set forth by the court in
County of Santa Cruz. See id. (citing 21 U.S.C. §
801(3)-(6)). Instead, they are concerned primarily with the
trafficking and distribution of controlled substances. More
importantly, the district court's analysis fails to ask the
question set forth in the first Morrison factor: whether the
statute, as applied to the particular class of activities,
regulates commerce or an economic enterprise. The
congressional findings do not address this question; at
best, they address whether the activity--commercial or
not--has some effect on interstate commerce. Finally, the
district court in County of Santa Cruz, by looking solely to
congressional findings, erroneously conflated the first and
third factors.
FN6. We note that the majority in
McCoy distinguished the CSA from the statute under
consideration in that case on the basis of the fact that the
CSA contains express legislative findings regarding the
relationship between purely intrastate activities and
interstate commerce. McCoy, 323 F.3d at 1128 n. 24. Citing
to drug trafficking cases, the majority in McCoy wrote: "It
is primarily on the basis of these congressional findings
that we rejected Commerce Clause challenges to the
[CSA]." Id. These statements from McCoy are
inapposite to this case for two reasons. First, as discussed
above, the drug trafficking cases--for which the
congressional findings may provide adequate jurisdictional
support--are different in kind from the instant case.
Second, the McCoy majority noted that Morrison may affect
the analysis even in those cases. Id. ("We express no view,
however, as to the effect of Morrison on these cases.").
FN7. The CSA's congressional
findings suggest that it is impractical to distinguish
between controlled substances manufactured and distributed
intrastate and those manufactured and distributed
interstate. 21 U.S.C. § 801(5) ("Controlled substances
manufactured and distributed intrastate cannot be
differentiated from controlled substances manufactured and
distributed interstate. Thus, is it not feasible to
distinguish, in terms of controls, between controlled
substances manufactured and distributed interstate and
controlled substances manufactured and distributed
intrastate."). Putting aside the question of whether
feasibility can provide a basis for expanding congressional
powers beyond those enumerated in the Constitution, McCoy
provides a helpful resolution of this issue as it pertains
to the class of activities at issue in this case:
Furthermore, McCoy's factual circumstances, in which she
possessed a family photo for her own personal use, with no
intention to distribute it in interstate or foreign
commerce, do not pose a law enforcement problem of
interstate commercial child pornography trafficking. While
it is true that child pornography "does not customarily bear
a label identifying the state in which it was produced,"
such problems of identification are not present in this
case. As we have emphasized, McCoy's "home-grown" photograph
never entered in and was never intended for interstate or
foreign commerce.
323 F.3d at 1132 (citation omitted) (quoting United
States v. Kallestad, 236 F.3d 225, 230 (5th Cir.2000)).
Applying this logic to the instant case, the feasibility of
differentiating between the intrastate class of activities
at issue here and more generic interstate drug trafficking
is of no moment, as the marijuana in the instant case never
entered into and was never intended for interstate or
foreign commerce.
FN8. At oral argument, we
questioned counsel for the appellants about the origin of
the marijuana seeds used by the appellants. Counsel for the
appellants assured us that they came from within California.
Regardless, we find that the origin of the seeds is too
attenuated an issue to form the basis of congressional
authority under the Commerce Clause. In McCoy we discussed
the fact that the film and camera in that case were
manufactured out of state. We expressed "substantial doubt"
that this fact (which was part of the statute's
jurisdictional hook in that case) "adds any substance to the
Commerce Clause analysis." McCoy, 323 F.3d at 1125. Here,
the potential out-of-state production of seeds used by the
appellants for their noncommercial activity is a
significantly attenuated connection between the appellants'
activities and interstate commerce. If the appellees sought
to premise Commerce Clause authority in this case solely on
the possibility that the seeds used by the appellants
traveled through interstate commerce, we would conclude, as
we did in McCoy with respect to the out-of-state manufacture
of the film and camera, that this, by itself, "provides no
support for the government's assertion of federal
jurisdiction." Id. at 1126; see also United States v.
Stewart, 348 F.3d 1132, 1135 (9th Cir.2003).
FN9. The district court analyzed
"the issue of irreparable harm, the balance of hardships,
[and] the impact of an injunction upon the public
interest" all under the heading "Public Interest
Factors."
FN10. These admonitions include:
"A district court cannot, for example, override Congress'
policy choice, articulated in a statute, as to what behavior
should be prohibited." 532 U.S. at 497; and "Their choice
(unless there is statutory language to the contrary) is
simply whether a particular means of enforcing the statute
should be chosen over another permissible means; their
choice is not whether enforcement is preferable to no
enforcement at all." Id. at 497-98.
FN1. Plaintiffs also asserted claims
pursuant to the Second and Ninth Amendments. The court
dismissed these claims because redress of individual
grievances was not cognizable under either amendment. 98
F.3d at 1125.
FN2. I respectfully disagree with the
conclusion the court reaches in footnote one of its opinion
with regard to remedies available to plaintiffs, even
assuming that the court's constitutional conclusions are
correct. A court has no power to provide a remedy for a
claim over which it has no jurisdiction. And clearly,
California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088
(9th Cir.2003), provides no support for the proposition the
court announces in this regard. Id. at 1094 n. 2 (noting
that the distinction between "standing" and "ripeness" label
was largely immaterial). At best, under the posture of this
case, the district court may enjoin seizure of plants,
nothing more.
FN3. It was Filburn's practice to use
part of the grain from his "small acreage" of winter wheat
to feed poultry and livestock on the farm, some of which
products were consumed as food on the farm and also to use
some of the wheat to make "flour for home consumption." The
Supreme Court deemed all of Filburn's uses to be regulable
by Congress. Wickard, 317 U.S. at 114, 128-29.
FN4. This "non-economic" argument
apparently attempts to distinguish the usage in Wickard from
the usage allegations in this case. In Wickard, the 239
bushels of wheat produced from the disputed acres were
deemed to have been slated for use as follows: a portion
made into flour for home use, a portion sold locally as
grain, a portion fed on the farm to produce poultry and
livestock products with part of these products being
consumed as food on the farm, and the balance kept for seed.
Wickard, 317 U.S. at 114. However, the Supreme Court
specifically focused on the regulability of the
home-consumption portion of the wheat saying, "[t]he
effect of [home] consumption of home-grown wheat on
interstate commerce is due to the fact that it constitutes
the most variable factor in the disappearance of the wheat
crop." Id. at 127. Therefore, even though plaintiffs' usage
of their marijuana crop is all personal, given Wickard, the
plaintiffs, in their attempt to support this non-economic
argument, seek to advance an immaterial factual distinction
that leads to no legal difference between the two
situations.
FN5. At footnote four of its opinion,
the court attempts to distinguish the reach of Proyect by
noting the involvement of 100 marijuana plants. We know that
six cannabis plants were seized from Monson in just one
instance and that Raich regularly receives an undisclosed
amount of marijuana from her purported benefactors. Over
time it is likely that many times over 100 plants will be
consumed by these two users alone. Thus, the distinction the
court attempts to reach is counter-productive to its
arguments and actually supports the thrust of this
dissent.
FN6. To use a well-known basketball
term, this case would be a "slam dunk" against Ms. Raich if
she were paying her remote suppliers to grow the marijuana
she uses. As it is, the consideration the caregivers receive
is knowing that Ms. Raich is purportedly in less pain
because of their efforts.
FN7. Admittedly, one distinction is
that the possessor and user in Bramble purchased the
marijuana, presumably from a dealer. But, as admitted at
oral argument, plaintiffs and their surrogates obviously
purchased the seeds from an outside source.
FN8. McCoy is also distinguishable
because the issues there did not suffer from the standing
and ripeness problems identified earlier. The McCoy
defendant had been charged and convicted under the statute
she was challenging "as applied."
FN9. Stewart is also distinguishable
for the same reason as McCoy, identified in the immediately
preceding footnote.
FN10. With further respect, and for
similar reasons, I think it might come as a surprise to a
mid-Nebraska cattle rancher that the baby calf born on his
property and ultimately subject to numerous federal
agricultural regulations was composed of parts that had
moved in interstate commerce.
2003 WL 22962231 (9th Cir.(Cal.)
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