DrugSense Weekly Septmber 1, 2000 #164

DrugSense Weekly Septmber 1, 2000 #164
Posted by FoM on September 01, 2000 at 14:01:02 PT
Feature Article By Richard Cowan
Source: DrugSense
The 9th Circuit declined to grant an emergency stay of its own ruling on the right to medical marijuana, so the "Justice" Department is now seeking an emergency stay from the Supreme Court. They are asking Justice Sandra Day O'Connor, who is from Arizona and handles such matters for the 9th Circuit, to delay the application of the Breyer ruling until after the Supreme Court has decided the case. It could take up to two years for the Court to rule, so such a stay would leave patients without a federal right to medical marijuana in the interim. 
It would have no effect on the state initiatives. If O'Connor grants the stay, the OCBC would then appeal to the rest of the Court for two Justices to override the emergency stay. Most requests for stays are denied, but this one is being sought by the Solicitor General himself. [This is a civil case, and as such is handled by the SG rather than by the Attorney General.] His direct involvement indicates again that the decision was made at the highest level. Recently, in a private setting the SG claimed that the government would argue its case on the scientific merits of medical marijuana, but actually they have never argued the merits in the lower courts, so they will be unable to do so at the Supreme Court.From the beginning, their argument has been simply that the Congress has the arbitrary power to deny the right of a medical necessity claim. That is also the argument used by the government in its appeal of the Breyer ruling. I have not yet seen the filing for the emergency stay, but the filing for the Writ of Certiorari for an accelerated hearing, which would hasten the appeals process by about a year, uses that argument. They say, "The court of appeals seriously erred in holding that medical necessity is a defense under the CSA (Controlled Substances Act) "A common law defense of necessity is available only 'when a real legislature would do the same under those circumstances.'" Of course, it is tempting to say that if we had "a real legislature" marijuana prohibition would never have happened in the first place. Certainly, the appalling people who govern us seem more like a parody of lawmaking than the real thing. The government is asking the court to say that people who have "serious" medical conditions for which there is "no reasonable alternative" to medical marijuana must suffer "imminent harm" simply because the Congress has the arbitrary power to deprive them of medical marijuana.Thus, the essential question before the court is not whether marijuana has medical value. The government never argued that it does not. It never addressed the science. The question is simply whether arbitrary power trumps fundamental rights. Robert Raich, the OCBC's outstanding attorney, was up late last night filing both a response to the request for the emergency stay and requesting more time to respond more fully. If O'Connor - or the other Justices - deny the government's request for the emergency stay, it will be very helpful to medical marijuana patients in the interim, and indicate a real problem for the government for the longer haul. If the stay is granted, it is likely that there will be a new round of federal harassment of the California clubs, but the need for medical marijuana is so great that they will come back just as they did before. It will probably be two weeks or more before O'Connor rules, so the Breyer ruling remains in effect in the meantime.) Be sure and log on to for the 420 MarijuanaNews with Richard Cowan weekdays at 4:20PM Pacific time. If you miss any broadcasts, they are now available in the Archives.By Richard Cowan: Note: In this breaking news story the Supreme Court has in fact granted the emergency stay. See: US High Court Bars Medical Marijuana Distribution: Click the link to read all of DrugSense Weekly's News: MapInc. Archives:
Home Comment Email Register Recent Comments Help

Post Comment

Name: Optional Password: 
Comment: [Please refrain from using profanity in your message]
Link URL: 
Link Title: