By Andrew C. DeWeese and Kevin J. Jacoby
President-elect Trump’s nomination of Jeff Sessions as Attorney General has been mixed. While some believe that Trump will balk at the loss of jobs, departure from traditional conservative notions of federalism, and expenditure of political capital a Sessions-led crackdown on cannabis would presumably bring, others are preparing for the worst. This article explores one possible argument whose time has, perhaps, finally come – that the time is ripe for the courts to acknowledge the existence of a fundamental right to use cannabis.
As of 2017, cannabis remains a Schedule I drug under federal law – grouped together with heroin and LSD – with “no accepted medical use.” Nevertheless, the legal cannabis industry has flourished, despite the threat of federal prosecution, because of two important legal protections. The most historically important of these is the Cole Memorandum of 2013, which set the enforcement priorities of the Department of Justice with respect to “legal states”; in a nutshell, the Cole Memo states that so long as the states have “implement[ed]strong and effective regulatory and enforcement systems,” and are not impeding the DOJ’s eight listed enforcement priorities (e.g., preventing cannabis from being provided to minors, interstate shipment of cannabis, enriching drug cartels, etc), enforcement of the Controlled Substances Act against state-legal cannabis businesses and users will be the DOJ’s “lowest priority.” The other important protection is the Rohrbacher-Farr Amendment, a budgetary provision that prevents the DOJ from spending any federal dollars on pursuing businesses or individuals who operate in unambiguous compliance with their states’ medical cannabis laws.
However, neither of these protections is particularly robust. A new administration could invalidate the Cole Memorandum at will, while Rohrbacher-Farr, by its own terms, only applies to medical cannabis and must be legislatively renewed on a periodic basis (the current iteration expires in April 2017). It is no easy task to predict what might happen: Senator Sessions’ statements in his confirmation hearings and otherwise have not been totally discouraging, and a plausible prediction could be that he will merely tighten up investigation and enforcement with respect to cannabis businesses who are not totally compliant.Nevertheless, in anticipation of what may be a hostile Sessions DOJ, legal professionals are well advised to evaluate all available legal defenses.
Notwithstanding the traditional conservative inclination toward federalism and a limited Commerce Clause, the Commerce Clause may not provide legal cannabis businesses with a viable defense. The most recent United States Supreme Court case primarily involving cannabis is Gonzales v. Raich, 545 U.S. 1 (2005), where the Court held that the Commerce Clause of the United States Constitution “includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.” Thus, if and when the legal battles with a Sessions DOJ begin, Raich indicates that we will likely not be litigating the Commerce Clause, because ultimately, cannabis qua cannabis is not central to the majority’s reasoning in Raich. A pillar of the majority’s opinion is Wickard v. Filburn, 317 U.S. 111 (1942), where the Court upheld under the Commerce Clause the application of regulations designed to control the volume of wheat in interstate commerce against challenge from a wheat farmer growing more than his quota, but purely for personal use. The Court explained that the Filburn family’s personal over-production and consumption affected interstate commerce because it reduced demand for the wheat circulated in commerce, and while the affect on commerce of one family is certainly negligible, Congress could permissibly adjudge the statewide aggregate significant enough to affect interstate commerce. Observing that a robust interstate (if illegal) market for cannabis unquestionably exists, the Court concluded that purely intrastate, noncommercial manufacture of cannabis could affect this market in the same way as home grown wheat, and therefore held that Congress could permissibly regulate such manufacture. Thus, Wickard suggests that the substance in question in Raich could have been any homegrown or homemade product – cannabis or otherwise.
Because the court has not departed from Raich, there is no reason to think litigating Commerce Clause issues against the Trump DOJ would be any more successful now than it was then. Moreover, given the rapid expansion of the cannabis industry in the intervening years, there is now far more to protect than noncommercial medical growers – there is entire commercial (yet intra-state) industry. Nevertheless, Justice O’Connor’s dissent in Raicharguably contains what is arguably the most positive statement about cannabis ever issued by a Supreme Court Justice, and may foreshadow a trend toward recognizing cannabis use as a fundamental right:
Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in ones own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.
O’Connor, J. (dissent).
While not even arguably supportive of the use of cannabis, Justice O’Connor’s dissent can be read to indicate at least some support for the normative proposition that a private person should not be molested by the federal government for the private cultivation and use of cannabis in compliance with state law, and thus may give us a hint about a future Court’s reaction to a different argument, raised by Raich in the trial court, but first addressed substantively by the Ninth Circuit two years later, in Raich v. Gonzales, (2007).
In addition to her argument that the application of the CSA to her violated the commerce clause, Ms. Raich had originally argued at the district court level that she had a fundamental right under the Fifth and Ninth Amendments to “make life-shaping medical decisions that are necessary to preserve the integrity of her body, avoid intolerable physical pain, and preserve her life.”
On remand from the Supreme Court’s rejection of Raich’s Commerce Clause argument, the Ninth Circuit considered Raich’s argument that the Controlled Substances Act infringes on a fundamental right and therefore should be subject to strict scrutiny. The Ninth Circuit ultimately rejected this argument, holding:
For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.”
Raich, 500 F3d at 866 (emphasis added).
The question is whether that day is now; whether there is now a fundamental right to use cannabis pursuant to state law.
Fundamental rights include those rights that are expressly included in the Bill of Rights, along with other rights determined by the Court as “interests of the person so fundamental that the State must accord them its respect.” Obergefell v. Hodges, 135 S.Ct. 2584, 2598 (2015) (citing Poe v. Ullman, 81 S.Ct. 1752 (1961) (Harlan, J., dissenting)). Laws that burden the exercise of fundamental rights are strictly scrutinized, and typically require the law to be narrowly tailored to further a compelling governmental interest. Examples of fundamental rights recognized by the Court include the right to marry and procreate, the right to purchase and use birth control, the right to refuse medical treatment, and other rights relating to individual autonomy.
The Court has been very clear that the notion of fundamental rights is not static, and is susceptible to changing societal norms, most recently (and perhaps most notably) in Obergefell, where the Court recognized a fundamental right of LGBT citizens to marry:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Obergefell, 135 S.Ct. at 2598 (2015).
The fundamental rights analysis turns on whether the asserted right is “deeply rooted in this Nation's history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 117 S.Ct. 2258. In conducing this analysis in Raich, the Ninth Circuit looked to Lawrence v. Texas, noting:
The Lawrence Court noted that, when the Court had decided Bowers v. Hardwick, “[twenty-four] States and the District of Columbia had sodomy laws.” By the time a similar challenge to sodomy laws arose in Lawrence in 2004, only thirteen states had maintained their sodomy laws, and there was a noted “pattern of nonenforcement.” The Court observed that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”
Raich v. Gonzales, 500 F3d 850, 865 (9th Cir 2007) (internal citations omitted).
Indeed, nearly ten years later, a striking comparison may now be drawn between the demise of sodomy prohibitions and the rise of cannabis laws. In 2007, only eleven states had laws on the books allowing for medical cannabis use. Today, no fewer than twenty-nine states and the District of Columbia (comprising a majority of the United States population) have passed laws legalizing cannabis in some form, and along the entire west coast cannabis is legal for anyone over 21 years of age. The state-legal cannabis industry is flourishing, with billions of dollars in investment, billions in revenue, and is generating millions each month in tax revenue. In Oregon, our locally grown cannabis is second to none, our state and local governments reap millions in taxes from state-legal sales, and the Oregon State Bar supports a bona fide Cannabis Law Section. The US is part of what appears to be a global trend: Canada appears to be on the verge of full federal legalization, Mexico’s highest court has declared that outlawing the possession and use of cannabis is a violation of fundamental human rights, and Israel continues to produce cutting edge research on cannabis pharmacology and its relationship to the human endocannabinoid system. Worldwide, social cannabis use has lost much of its age-old “stoner” stigma, and millions of people, including scores of autistic, epileptic, or cancer-suffering children, are using cannabis medically with seemingly miraculous outcomes.
We also see a distinct “pattern of nonenforcement” with respect to cannabis on the federal level as evidenced by the Cole Memorandum, and finding explicit Congressional support via the Rohrbacher-Farr Amendment. Indeed, this “pattern of nonenforcement” is far more than theoretical: for example, there are at least a dozen legal, licensed cannabis dispensaries within a one-mile radius of the downtown Portland federal courthouse, and as of December 30, 2016, nearly 1900 applications for cannabis licenses (including those for production, processing, wholesale, and retail) have been filed with the OLCC. Moreover, with the implementation of “seed-to-sale” tracking (meaning that every single gram of cannabis sold in this state by an OLCC licensee is meticulously tracked in a state-wide computer database), cannabis licensees are, in effect, voluntarily documenting and admitting to potentially hundreds or thousands of federal felonies each and every day – and the federal government has not prosecuted (and probably not even investigated) a single one based on these admissions. As a result, at least as compared with the sodomy laws evaluated in Lawrence, the right of individuals to use cannabis in legal states is arguably on much stronger footing than the right to engage in consensual sexual relations without fear of official persecution.
Whether these circumstances will lead to the recognition of a fundamental right to use cannabis is yet to be seen. The Ninth Circuit, at least, “is not necessarily unsympathetic to the argument that the use of medical marijuana might one day be considered fundamental.” United States v. Wilde, 74 F Supp 3d 1092, 1095 (ND Cal 2014). Given the signals sent by the Ninth Circuit, and the rapid movement among the states towards legalization, express recognition of cannabis use as a fundamental right may be just over the horizon.
About the Authors
Andrew DeWeese and Kevin Jacoby are lawyers in the Oregon Cannabis Law Group, located in Portland, Oregon.