Reading the case law – U.S. v. Lopez (1995)

Here’s the opening paragraph from United States v. Lopez, 514 U.S. 549, 551 (1995):

In the Gun-Free School Zones Act of 1990, Congress made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” 18 U.S.C. § 922 (q)(1)(A) (1988 ed., Supp. V). The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress “to regulate Commerce . . . among the several States . . . .” U.S. Const., Art. I, § 8, cl. 3.

This was a case used by Raich in Gonzales v. Raich, 545 U.S. 1 (2005), to support a claim that the Interstate Commerce Clause did not reach personal, intra-state, and state-authorized medical use of marijuana.

Let’s examine the differences in the Gun-Free School Zones Act (GFSZA) and the Controlled Substances Act (CSA).

The GFSZA criminalized the possession of a firearm in a specific set of circumstances.  The CSA regulates the possession of substances and only criminalizes the unauthorized possession of a controlled substance (you can get a prescription and that makes it legal).  So, that is a huge difference.  When Congress creates a license to do something that is not otherwise allowed, you have to make an additional argument that you were denied a license before you can attack the statute itself.  Another twist of the CSA is that you can apply to have substances added, removed, or transferred between, the schedules.

An additional fact of the CSA is that Congress specifically said personal, intra-state possession of controlled substances affects interstate commerce.  That assertion went unchallenged for 35 years until Raich challenged it.  And, of course, unless a fundamental right is at stake, the court uses a “rational basis” analysis to determine whether Congress could have reasonably assumed personal, intra-state possession of controlled substances affects interstate commerce.

So, the CSA:

  1. Regulates a commercial activity.
  2. Associates the activity with interstate commerce.

That is why NORML’s current law suit, Marin Alliance v. Holder, No. 4:11-cv-05349-SBA (U.S. District Court, Northern District of California, Oakland) is going to fail unless NORML amends the complaint to challenge the schedule I classification of marijuana (which is what the U.S. Supreme Court told Raich to do, 545 U.S. at 28 n.37).  I found it interesting that NORML’s year end summary of marijuana law reform claims this lawsuit was their greatest accomplishment of 2011.  Two federal judges have already torn it to shreds.

21 U.S.C. § 801 Note Short Title

This title may be cited as the ‘Controlled Substances Act’.

§ 801. Congressional findings and declarations: controlled substances.

The Congress makes the following findings and declarations:

  • (1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.
  • (2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.
  • (3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because –
    • ( A ) after manufacture, many controlled substances are transported in interstate commerce,
    • ( B ) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and
    • ( C ) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.
  • (4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.
  • (5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.
  • (6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.
  • (7) The United States is a party to the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances.

Arizona’s ridiculous case against the United States

After reading the request from Maricopa County for leave to file a late opposition to the motion to dismiss Arizona’s case, it strikes me that the county should be suing the state, not the federal government.  If the county thinks state law is going to force state employees to violate federal law, then that is a case that should be filed in a state court to have that portion of the law struck as a violation of federal supremacy.  This case should not have been filed in federal court in the first place.  Any problem with a state law should be brought before a state court before going to the federal courts with it.
Arizona v. United States, No. 2:11-cv-01072-SRB
United States District Court, District of Arizona (Phoenix Division)

Colorado seeks federal reclassification of marijuana

I haven’t seen the letter from the Colorado Department of Revenue yet, but I can tell you what’s wrong with the one sent by Washington and Rhode Island. There are two ways of going about this. The first way is the scientific review of the 8 factors in 21 U.S.C. § 811(c). The second way is the fact states have the right to determine accepted medical use in the United States under 21 U.S.C. § 812(b)(1)(B). Gonzales v. Oregon, 546 U.S. 243 (2006). I’ve seen how the DEA applies those 8 factors before, and none of them says anything about whether a state has accepted marijuana for medical use. Without a demand that the DEA acknowledge states’ rights to accept the medical use of marijuana, these petitions will take forever and they will be denied when it’s all said and done, just like the U.S. Commission on Marihuana was ignored in 1972 and DEA’s Chief Administrative Law Judge Francis Young was ignored in 1989.