BY: Sara Brittany Somerset |
Medical marijuana patients often ask why, if their state allows it, they cannot legally grow their own cannabis plants at home for personal use that does not impact interstate commerce. Many patients feel that it is less expensive and more fun cultivating cannabis in their closet, or in a more sophisticated grow box, rather than having to pay high prices for their medicine, which is not covered by health insurance.
Similar questions stem from there. If states including California or Massachusetts allow its citizens to have homegrown, or medical marijuana, why is that not federally legal? Why is it federally illegal for people to grow their own cannabis, if it is only for personal use, and there is no monetary transaction which involves commerce?
The Boston Herald recently published a story on Sunday, in which another aspect of the legalities of homegrown cannabis is called into question. The Herald article states that “Cloning of marijuana seeds bypasses federal law.” The article quotes a pot shop executive who says, “Having access to clones [i.e., cloning cannabis seeds] removes any obstacles.”
Although perhaps not deliberately misleading, this line of reasoning is incorrect. The federal government will always have jurisdiction over intrastate activity, particularly when intrastate commercial activity is involved.
Assuming that cloning seeds are permissible because it keeps a homegrown marijuana operation contained within a state’s border, is incorrect.
Avoiding purchasing or transporting seeds over state lines will not legalize the endeavor, or circumvent federal law. The United States Supreme Court has repeatedly ruled that the long arm of the law envelops even purely intrastate activity, including the cultivation of cloned seeds, which have not been sold or purchased in interstate commerce.
“This supposition reported by the Herald is legally untenable. Regardless of whether or not the pot seeds are homegrown, they continue to perpetuate an illegal marketplace. Commercial intrastate commerce without question falls under federal jurisdiction,” Holland says.
“In order to understand the complexity and reach of that decision, it is necessary to take a closer look at the powers of Congress granted under the Constitution, and the cases that have examined its reach under the Commerce Clause therein,” he continues.
Under the Tenth Amendment to the United States Constitution, whatever powers not expressly granted to the federal government remain reserved to the states. Policing, or the ability to determine what is legal and illegal within its boundaries, including local crime, health codes, laws, etc., are expressly reserved to each of the 50 states, provided that these laws and rules do not tread upon the toes of Congress.
Article VI of the Constitution makes it clear that all federal law “shall be the supreme Law of the Land,” and all judges, whether in state or federal court, are sworn to uphold that mandate.
Enumerating some of the powers of The Commerce Clause of the Constitution states that Congress shall have the power “To regulate Commerce…among the several states….”
In 1970, The Controlled Substances Act (CSA) set up a regulatory schemefor all drugs ranging from Schedule I, the most dangerous, including heroin, to Schedule V, which are relatively safe medications that are frequently prescribed, such as Robitussin AC.
The three criteria for Schedule I designation are that there is a lack of currently accepted medical use in treatment, a high risk of abuse, and a lack of accepted safety for the use of the drug under medical supervision.
Marijuana was supposed to be placed in the Schedule 1 category temporarily; however, it remained in Schedule I, along with heroin and PCP, since President Nixon signed the CSA into law.
Because it is a federal law, the CSA, and its designation of marijuana in Schedule I, has been and remains the supreme law of the land.
Many are puzzled and frustrated by that legal reality, when contrasted with the fact that 30 states, and the District of Columbia, have passed legislation and regulatory schemes that specifically declare cannabis a valid alternative medicinal treatment, disavowing its Schedule I status.
Furthermore, many of those states which have legalized marijuana have created carve-outs allowing for “homegrown,” cultivation, where patients and responsible adults in “recreational” states are permitted to cultivate their own cannabis in limited quantities for their own personal use.
This is often referred to as purely “intrastate” activity because the entire cultivation operation happens within the boundaries of the legalized state, and there is no sale or other barter transaction, which would be considered commerce, or a commercial transaction.
So, with such constrained activity all happening legally within a single state’s boundaries, why should Congress through the CSA be able to regulate and prosecute these individuals who are only growing for their own enjoyment, and which do not affect “interstate” commerce between and amongst the states?
According to Holland, the answers lie in a few historical cases.
The pot shop owner quoted in The Herald may think issues such as cloning cannabis seeds to avoid trafficking them in from other states is purely intrastate activity that should be beyond the reach of Congress. However, the United States Supreme Court has expressly ruled to the contrary, in a case known as Gonzales v. Raich.
Gonzales v. Raich, Holland explains, involved two medical patients who sought an injunction against federal agents, who seized and destroyed their homegrown plants, which were permitted under California’s Compassionate Use Act.
Gonzales v. Raich argued that because their activities were solely for personal use, did not impact upon commerce in any way, and did not exceed the boundaries of the state, the Controlled Substances Act was unconstitutional as applied to them, because Congress was overreaching due to a lack of “interstate” commerce between and amongst the states.
“Logic would dictate in favor of the complaining patients in Raich,”
says Holland. “However, the Supreme Court’s historic opinions on the reach of the commerce clause dictate otherwise.”
There is nothing that courts, and the legal system in general, love more than a precedent, no matter how archaic a previous decision may seem.
“The Raich Court delved deep into its precedential history to reach the conclusion that such purely intrastate activity was nonetheless illegal under federal law,” says Holland.
In 1938, Congress passed legislation to address a growing crisis related to the overproduction of wheat, and the corresponding plunge in market prices. In efforts to curb the wheat crop’s economic deflation, theAgricultural Adjustment Act of 1938 (Act) was passed. The Act legislatively curtailed the amount of production that could be brought to the market. This action would reduce the supply and increase demand, thereby stabilizing prices in the national marketplace.
As a result of the Act, farmers like Wickard were intentionally limited to 11 acres of bountiful wheat fields. Despite the mandated curtailment of production, Wickard also grew several acres of wheat for his own consumption. When held accountable for the violation, Wickard challenged the reach of Congress and the Agricultural Adjustment Act, by claiming that his surplus crop was solely intended for his own personal use, not for the marketplace, and could not impact upon interstate commerce “between and amongst the states.” Therefore, he argued, the federal government could not rectify his actions.
The Supreme Court disagreed. They found that “even if [Wickard’s]activity is 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.”
Holland points out that The Supreme Court reached their conclusion by a negative rationale. By growing his own wheat, Wickard was defeating the purpose of the Act, because he was not placing a demand on the national market by purchasing wheat, which in turn would stabilize the market price. As such, the ripple effect of his individual actions, while ethereal, was not “trivial” if emulated by his peers. Therefore, his efforts impacted upon interstate commerce and allowed Congress to regulate and punish his actions.
Why is this relevant to cloning cannabis seeds today? Because The Supreme Court viewed the actions of Raich to be virtually identical to those of Wickard’s 63 years prior. While growing his own marijuana to treat his serious medical condition was permitted under California’s Compassionate Use Act, Raich was nonetheless impacting upon interstate commerce.
“The Supreme Court said, “Like the farmer in Wickard, [Raich is] cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market.” Just as the Agricultural Adjustment Act was designed ‘to control the volume [of wheat] moving in interstate and foreign commerce, in order to avoid surpluses …’ and consequently control the market price, …a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets.”
“The Wickard decision demonstrated the depths of logical contortion [to which] the United States Supreme Court has been willing to go to affect …policy in times of national urgency,” says Holland.
“In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here, too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions,” Holland explains.
The Raich Court found that the homegrown cannabis operations were in direct derogation of the Controlled Substances Act. The CSA is the supreme law of the land, despite any allowance permitted under California’s Compassionate Use Act.
The Court reasoned that the CSA specifically sought to schematically regulate all drugs including cannabis, and to penalize and prosecute those that chose to cultivate and possess it, despite any such state-sanctioned provision to the contrary.
More specifically, Holland explains, the Court said, “When Congress decides that the ‘total incidence’ of a practice poses a threat to a national market, it may regulate the entire class. … In this vein, we have reiterated that when ‘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.’ ”
As such, the US Supreme Court ruled that, indeed, even the most negligible illegal cultivation of medical marijuana by Raich had an impact on interstate commerce and, therefore, the influence of Congress could reach even non-commercial, home grow operations.
The Raich Court pointed out that while the CSA provides different remedies to seek to reschedule cannabis, ultimately it believed that it is a political question, best reserved for Congress to handle. With the reach of the Commerce Clause now clearly ensconced in Raich, many courts have also found this is a political issue that is improper for judicial review.
Attorney Holland bluntly advises those who want “home-grown” to be legalized that, “Continued advocacy and votes at the polls will likely be the keys to the most immediate success.”