HomeMy WebLinkAboutAGENDA REPORT 2005 0720 CC REG ITEM 08CMOORPARK CITY COUNCIL
AGENDA REPORT
ITEM 9- G .
CITY OF MOORPARK, CALIFORNIA
City Council Meeting
29 _ _ Q'90-
3i
BY:
TO: Honorable City Council
FROM: Barry K. Hogan, Community Development Director
By: Laura Stringer, Administrative Services a age.
DATE: July 8, 2005 (CC Meeting of 07/20/05)
SUBJECT: Consider an Interim Urgency Ordinance Extending a
Temporary Moratorium on the Establishment and
Operation of Medical Marijuana Dispensaries
BACKGROUND /DISCUSSION
On July 6, 2005, the Moorpark City Council enacted an interim
urgency ordinance (the "45 Day Ordinance ") to impose a
moratorium on issuance of any land use entitlements for medical
marijuana dispensaries, and directed staff to schedule and
notice a public hearing for July 20, 2005, to consider extending
the Interim Ordinance for an additional twenty -two (22) months
and fifteen (15) days, or until June 4, 2007.
On July 7, 2005, the City issued a report describing the
measures taken to alleviate the condition which led to the
adoption of the interim ordinance (the "Ten (10) Day Report"
(Attachment 2) . The report (with exhibits) was made available
at the public counter at City Hall, on the City Website, and
copies are available at the July 20, 2005 City Council meeting.
If adopted, the Ordinance (Attachment 3) would extend the
temporary moratorium on the establishment and operation of
medical marijuana dispensaries in the City of Moorpark for an
additional twenty -two (22) months and fifteen (15) days, or
until June 4, 2007, allowing staff to conduct the necessary
reviews and research identified in the July 6, 2005 City Council
Agenda Report.
000031
:r1onorable City Council
July 20, 2005
Page 2
STAFF RECOMMENDATION (ROLL CALL VOTE 4 /5TH AFFIRMATION)
1. Open the public hearing, take public testimony and close
the public hearing.
2. Adopt Ordinance No.
AT'- 'ACHMENTS :
1. July 06, 2005 City Council Agenda Report
2. Report on the Measures Taken to Alleviate `he Conditions
Which Led the City to Enact the Interim Urgency Ordinance
on July 6, 2005 (Ten (10) Day Report)
3. Ordinance
000032
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Scott E. Porter, Assistant City Attorney ��
Barry K. Hogan, Community Development Director
DATE: June 16, 2005 (CC Meeting of 07/06/05)
SUBJECT: Consider Interim Urgency Ordinance to Establish
Temporary Moratorium on the Establishment and
Operation of Medical Marijuana Dispensaries
SUMMARY
Federal law prohibits, while California law allows, me&cal
marijuana dispensaries. It is unclear whether and how the City
may regulate such facilities. As such, it is recommended that
the City Council consider adopting an interim zoning ordinance,
to place a 45 day moratorium on the issuance of any entitlement
relating to medical marijuana dispensaries. This moratorium
would allow the City more time to determine how to proceed.
BACKGROUND
It is a federal crime to manufacture, distribute, dispense, or
possess marijuana.) California, too, prohibits the possession
or cultivation of marijuana.2 Unlike federal law, however,
California law creates an exception from these prohibitions for
certain parties relating to the use of marijuana for medical
purposes ( "medical marijuana ").
On June 6, 2005, the Supreme Court of the United States
confirmed in Gonzales v. Raich that notwithstanding California's
121 U.S.C. §§ 541(a)(1), 844(a).
2Cal. Health & Saf. Code §§ 11357, 11358.
CC ATTACHMENT 1
000033
Honorable City Council
July 6, 2005
Page 2
exception for medical marijuana, federal law still prohibits
marijuana in all circumstances, and the federal government has
the right to enforce its laws against private individuals using
medical marijuana for purely personal consumption.
Since Gonzales v. Raich was announced, there has been increased
attention on the issue of medical marijuana, and numerous bills
have already been introduced, and additional bills are
anticipated, which might alter the federal government's
regulation of medical marijuana. As such, it is unclear whether
federal law will continue to prohibit the usage of marijuana for
medical purposes. Further, it is unclear how federal
enforcement (or lack thereof), and the public's perception of
Gonzales v. Raich will affect local government and local use of
marijuana at or near medical marijuana dispensaries.
The City may obtain requests to permit medical marijuana
dispensaries within the City. Even though federal law prohibits
such activity, there are numerous cities throughout California
that continue to have medical marijuana dispensaries within
their jurisdictions. For example, the City of Berkeley ci►pped
the number of permitted facilities at three. The City of West
Hollywood currently has nine in operation.
Although Gonzales v. Raich was clear that the use of medical
marijuana is illegal for federal purposes, it is still unclear
how that decision and future Congressional action will affect
requests to the City for permits to establish and /or operate
medical marijuana facilities. If the federal law permits
medical marijuana or changes its regulation, these changes may
affect whether medical marijuana dispensaries would constitute a
hazard to health, safety and welfare of the City's residents.
Simply stated, after Gonzales v. Raich, it is unclear whether
medical marijuana dispensaries will continue, how the City may
regulate such facilities, and whether such facilities will exist
absent City actions.
DISCUSSION
Pursuant to Government Code § 65858, with a 4/5 vote, the City
Council may enact an urgency ordinance, which would place a 45
day moratorium on issuance of use permits, variances, building
permits, business licenses, or any other entitlement for the
establishment or operation of a medical marijuana dispensary.
S: \Community Development \DEV PMTS \Z 0 A \2005 \MM Urgency Ord \050706 cc agenda rpt.doc O O O 0 3 4
Honorable City Council
July 6, 2005
Page 3
There are various
such a moratorium
the City's gener
and /or how the Ci
dispensaries. S
City's zoning c
indicate whether
regulated within
prepare any reco
zoning amendments
deliberate on an
would allow more
approvals would
amendments to t
moratorium would
state of the law,
action, or other
Moorpark.
reasons that the City may consider enacting
First, after an initial review, it appears
al plan does not expressly indicate whether
ty will regulate or permit medical marijuana
econd, the City will need time to review the
ode, as it apparently does not explicitly
and /or how medical marijuana dispensaries are
the City. City staff would need time to
mmendations relating to any general plan and
and the City Council would need time to
y potential amendments. Third, a moratorium
time for the City to ensure that any subsequent
be consistent with the future potential
he zoning code or general plan. Last, a
allow the City time to research the existing
and to determine how potential Congressional
enforcement changes could affect the City of
Under state law, an initial moratorium may be adopted by a�14/5
vote of the Council, but can only last for 45 days. Thereafter,
the ordinance may be extended, but only after holding a public
hearing. If the City Council adopts this proposed moratorium, a
public hearing would need to be noticed for the July 20 meeting,
since the City Council does not plan to meet in August. At that
time, staff would have a recommendation for the duration of the
moratorium.
STAFF RECObBERMATION (ROLL CALL VOTE 4/5' AFFIRMATION)
1. Adopt Interim Ordinance No. ; and
2. Schedule and notice a public hearing for July 20, 2005, to
extend the Interim Ordinance.
Attachment: Ordinance
S: \Community Development \DEV PMTS \Z 0 A \2005 \MM Urgency Ord \050706 cc agenda rpt.doc 0 00 0315
MEMORANDUM
COMMUNITY DEVELOPMENT DEPARTMENT
TO: Honorable City Council
Steven Kueny, City Manager
FROM: Barry K. Hogan, Community Development Director
By: Laura Stringer, Administrative Services Ma g
DATE: July 7, 2005
SUBJECT: REPORT ON THE MEASURES TAKEN TO ALLEVIATE THE
CONDITIONS WHICH LED THE CITY TO ENACT THE INTERIM
URGENCY ORDINANCE ON JULY 6, 2005
BACKGROUND /DISCUSSION
On July 6, 2005, the Moorpark City Council enacted an interim urgency ordinance (the
"45 Day Ordinance ") to impose a moratorium on issuance of any land use entitlements
for medical marijuana dispensaries, and directed staff to schedule and notice a pubird
hearing for July 20, 2005, to consider extending the Interim Ordinance for an additional
22 months and fifteen (15) days, or until June 4, 2007.
On or before July 10, 2005, the City must issue a report describing the measures taken
to alleviate the condition which led to the adoption of the interim ordinance (the "Ten
(10) Day Report"). The attached report (with exhibits) is available at the public counter
at City Hall, and copies will be available at the July 20, 2005 City Council meeting.
Please do not hesitate to contact me if you have any questions.
Attachments: Report on the Measures Taken to Alleviate the Condition which Led
the City to Enact the Interim Urgency Ordinance on July 6, 2005
S:1Community DevetopmentlDEV PMTS\Z O A\2005\MM Urgency OrM050705 10 day rpt cover.doc
CC ATTACHMENT 2
000036
REPORT ON THE MEASURES TAKEN TO ALLEVIATE THE
CONDITIONS WHICH LED THE CITY TO ENACT THE
INTERIM URGENCY ORDINANCE ON JULY 6, 2005
Background
On July 6, 2005, pursuant to Government Code § 65858, the
Moorpark City Council enacted an interim urgency ordinance (the
"45 Day Ordinance ") to impose a moratorium on issuance of any
land use entitlements for medical marijuana dispensaries.
Absent any additional action, the interim ordinance would expire
after 45 days. The proposed ordinance (the "Extension
Ordinance ") would extend the moratorium for an additional 22
months and fifteen (15) days, or until June 4, 2007.
Reasons for the 45 Day Ordinance
The Extension Ordinance, if adopted, would be adopted for the
same reasons that the 45 Day Ordinance was originally adopted,
as those reasons are still accurate.
The 45 Day Ordinance was adopted for various reasons, including:
• Anecdotal reports suggested that crime and other public
nuisances increase in those areas where medical marijuana
facilities exist. The City was unaware of any additional
evidence which indicated whether such facilities in fact
foster crime or other public nuisances. The City needed
time to gather more information.
• Current law was unclear.
o On the one hand, federal law prohibits marijuana use,
distribution and possession. The Supreme Court of the
United States ruled in United States v. Oakland
Cannabis Buyers' Cooperative, 532 US 483 (2001),1 that
notwithstanding California law,2 the federal Controlled
Substances Act continues to prohibit marijuana use,
distribution, and possession, and that no medical
necessity exception exists to these prohibitions.
o Additionally, the Supreme Court of the United States
ruled in Gonzales v. Raich, U.S. LEXIS 4656 (2005),3
that pursuant to the commerce clause, the federal
government has the power to prohibit the local
' This case is attached hereto as Exhibit "A ".
2 Cal Health & Saf. Code 5 11362.5 is attached hereto as Exhibit "B ". The
enrolled version of SE 420 is attached hereto as Exhibit "C ".
' This case is attached hereto as Exhibit "D ".
LA #4828- 8626 -3808 vl
00000`7
cultivation and use of marijuana, even though such
cultivation and use complies with California law.
o On the other hand, California law specifically
indicates that certain uses of marijuana for medical
purposes are legal.
o In Gonzales v. Raich, the Supreme Court of the United
States did not indicate that California law was
invalid, but rather, merely indicated that the federal
government could continue to enforce its medical
marijuana laws.
o It was unclear whether the City was required to allow
medical marijuana facilities, as the City is governed
by state law; or whether the City was required to
prohibit medical marijuana facilities, because
otherwise, the City would be specifically authorizing
what is known to violate federal law. It was also
unclear whether the City had the freedom to determine
whether to allow or prohibit medical marijuana
facilities.
• Future laws might be amended to resolve this discrepancy.
o Members of Congress have introduced bills which would,
among other things, have the effect of legalizing the
medical use of marijuana in California, or impose
moratoriums on all federal government enforcing
marijuana laws against users of marijuana for medical
purposes. For example, on May 4, 2005, Representative
Frank introduced HR 20874, with 36 co- sponsors, to
provide for the medical use of marijuana in accordance
with the laws of the various States. It was expected
that future legislation would answer whether the City
should allow such dispensaries. Unless the City
waited for this legislation, and any subsequent
related pieces of legislation to be voted upon, the
City might be authorizing uses which would ultimately
be illegal.
Measures Taken to Alleviate the Conditions Which Led to the
Adoption of the Ordinance
Thus far, the office of the City Attorney has only begun to
review applicable law in this area, given the recent Supreme
Court cases and recently introduced legislation. Thus far, the
Office of the City Attorney has:
` This bill is attached hereto as Exhibit ,E.,,
LA #4828 -8626 -3808 v1
QQOVu8
• Begun a factual analysis of medical marijuana dispensaries
on a community; and
• Completed a preliminary analysis of Gonzales v. Raich and
United States v. Oakland Cannabis Buyers' Cooperative.
Duration of the Extension ordinance
If adopted by the City Council, the Extension Ordinance
would cause the moratorium on issuance of entitlements relating
to medical dispensaries to be extended until June 4, 2007. It
is not expected that the Extension Ordinance will be necessary
for the entire 22 months and 15 days. However, given the very
recent developments in the law in this area, it may take some
months for the scope of the City's authority to be clarified, as
well as several months for City staff to craft appropriate
regulations thereafter. Because the City may repeal the
Extension Ordinance at any time, the Extension Ordinance has
been drafted to extend for the maximum time permissible under
Government Code section 65858, with the understanding that once
appropriate regulations can be drafted, the Extension Ordinance
can be repealed.
Exhibits
A. U.S. v. Oakland Cannabis Buyers' Cooperative
B. Cal Health & Saf. Code § 11362.5.
C. SB 420 (Chaptered)
D. Gonzales v. Raich
E. HR 2087
LA #4828- 8626 -3808 v1
0000319
EXHIBIT A
LEXSEE 532 US 483
UNITED STATES, PETITIONER v. OAKLAND CANNABIS BUYERS'
COOPERATIVE AND JEFFREY JONES
No. 00 -151
SUPREME COURT OF THE UNITED STATES
532 U.S. 483; 121 S. CC 1711; 149 L. Ed. 2d 722; 2001 U.S. LEXIS 3518; 69
U.S.L.W. 4316; 2001 Cal. Daily Op. Service 3836; 2001 Daily Journal DAR 4691; 14
Fla. L. Weekly S 238; 2001 Colo. J. C.A.R. 2428; 14 Fla. L. Weekly Fed. S 238
March 28, 2001, Argued
May 14, 2001, Decided
PRIOR HISTORY: ON WRiT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT,
DISPOSITION: 190 F.3d 1109, reversed and remanded.
LexisNexis(R) Headnotes
SYLLABUS: Respondent Oakland Cannabis Buyers'
Cooperative was organized to distribute marijuana to
qualified patients for medical purposes. The United
States sued to enjoin the Cooperative and its executive
director, also a respondent (together, the Cooperative),
under the Controlled Substances Act. The United States
argued that the Cooperative's activities violated the Act's
prohibitions on distributing, manufacturing, and
possessing with the intent to distribute or manufacture a
controlled substance. The District Court enjoined the
Cooperative's activities, but the Cooperative continued to
distribute marijuana. The District Court found the
Cooperative in contempt, rejecting its defense that any
distributions were medically necessary. The court later
rejected the Cooperative's motion to modify the
injunction to permit medically necessary distributions.
The Cooperative appealed, and the Ninth Circuit
reversed and remanded the ruling on the motion to
modify the injunction. According to the Ninth Circuit,
medical necessity is a legally cognizable defense likely
applicable in the circumstances, the District Court
mistakenly believed it had no discretion to issue an
injunction more limited in scope than the Controlled
Substances Act, and the District Court should have
weighed the public interest and considered factors such
as the serious harm in depriving patients of marijuana in
deciding whether to modify the injunction.
rMcA
1. There is no medical necessity exception to the
Controlled Substances Act's prohibitions on
manufacturing and distributing maryuana. Pp. 5 -11.
(a) Because that Act classifies marijuana as a schedule 1
controlled substance, it provides only one express
exception to the prohibitions on manufacturing and
distributing the drug: Government- approved research
projects. The Cooperative's contention that a common -
law medical necessity defense should be written into the
Act is rejected There is an open question whether
federal courts ever have authority to recognize a
necessity defense not provided by statute. But that
question need not be answered to resolve the issue
presented here, for the terms of the Controlled
Substances Act leave no doubt that the medical necessity
defense is unavailable. Pp. 5 -7.
(b) Under any conception of legal necessity, the defense
cannot succeed when the legislature itself has made a
determination of values. Here, the Act reflects a
determination that marijuana has no medical benefits
worthy of an exception (other than Government -
approved research). Whereas other drugs can be
dispensed and prescribed for medical use, see 21 U.S.C.
Page 2
532 U.S. 483, *; 121 S. Ct. 1711, * *;
149 L. Ed. 2d 722, * * *; 2001 U.S. LEXIS 3518
§ 829, the same is not true for marjuana, which has 'no
currently accepted medial use" at all, § 811. This
conclusion is supported by the structure of the Act, which
divides drugs into five schedules, depending in part on
whether a drug has a currently accepted medical use,
and then imposes restrictions according to the schedule
in which it has been placed. The Attorney General is
authorized to include a drug in schedule 1, the most
restrictive schedule, only if the drug has no currently
accepted medical use. The Cooperative errs in arguing
that, because Congress, instead of the Attorney General,
placed marijuana into that schedule, marijuana can be
distributed when medically necessary. The statute treats
all schedule 1 drugs alike, and there is no reason why
drugs that Congress placed there should be subject to
fewer controls than those that the Attorney General
placed there. Also rejected is the Cooperative's argument
that a drug may be found medically necessary for a
particular patient or class even when it has not achieved
general acceptance as a medical treatment. It is clear
from the text of the Act that Congress determined that
marijuana has no medical benefits worthy of an
exception granted to other drugs. The statute expressly
contemplates that many drugs have a useful medical
purpose, see § 801(1), but it includes no exception at all
for any medical use oj' marijuana. This Court is
unwilling to view that omission as an accident and is
unable, in any event, to override a legislative
determination manifest in the statute. Finally, the canon
of constitutional avoidance has no application here,
because there is no .statutory ambiguity. Pp. 7 -11.
2. The discretion that courts of equity traditionally
possess in fashioning relief does not serve as a basis for
arming the Ninth Circuit in this case. To be sure,
district courts properly acting as courts of equity have
discretion unless a statute clearly provides otherwise.
But the mere fact that the District Court had discretion
does not suggest that the court, when evaluating the
motion, could consider any and all factors that might
relate to the public interest or the parties' conveniences,
including medical needs. Equity courts cannot ignore
Congress' judgment expressed in legislation. Their
choice is whether a particular means of enforcement
should be chosen over another permissible means, not
whether enforcement is preferable to no enforcement at
all. To the extent a district court considers the public
interest and parties' conveniences. the court is limited to
evaluating how those factors are affected by the selection
of an injunction over other enforcement mechanisms.
Because the Controlled Substances Act covers even those
who have what could be termed a medical necessity, it
precludes consideration of the evidence that the Ninth
Circuii deemed relevant. Pp. 11 -15.
190 F. 3d 1109, reversed and remanded.
COUNSEL: Barbara D, Underwood argued the cause
for petitioner.
Gerald F. Uelmen argued the cause for respondents.
JUDGES: THOMAS, J., delivered the opinion of the
Court, in which REHNQUIST, C. J., and O'CONNOR,
SCALIA, and KENNEDY, JJ., joined. STEVENS, J.,
filed an opinion concurring in the judgment, in which
SOUTER and GINSBURG, JJ., joined. BREYER, J.,
took no part in the consideration or decision of the case.
OPINIONBY: THOMAS
OPINION: [* *1715] [ ** *729] [ *486]
JUSTICE THOMAS delivered the opinion of the
Court.
[ * * *LEdHRIA] [lA] The Controlled Substances Act,
84 Stat. 1242, 21 U.S.C. § 801 et seq., prohibits the
manufacture and distribution of various drugs, including
marijuana. In this case, we must decide whether there is
a medical necessity exception to these prohibitions. We
hold that there is not.
In November 1996, California voters enacted an
initiative measure entitled the Compassionate Use Act of
1996. Attempting "to ensure that seriously ill
Californians have the right to obtain and use marijuana
for medical purposes," Cal. Health & Safety Code Ann. §
11362.5 (West Supp. 2001), the statute creates an
exception to California laws prohibiting the possession
and cultivation of marijuana. These prohibitions no
longer apply to a patient or his primary caregiver who
possesses or cultivates marijuana t'or the patient's
medical purposes upon the recommendation or approval
of a physician. Ibid. In the wake of this voter initiative,
several groups organized "medical cannabis
dispensaries" to meet the needs of qualified patients.
United States v. Cannabis Cultivators Club, 5 F. Supp.
2d 1086, 1092 (ND Cal. 1998). Respondent Oakland
Cannabis Buyers' Cooperative is one of these groups.
The Cooperative is a not - for - profit organization that
operates in downtown Oakland. A physician serves as
medical director, and registered nurses staff the
Cooperative during business hours. To become a
member, a patirnt must provide a written statement from
a treating physician assenting to marijuana therapy and
must submit to a screening interview. If accepted as a
000041
532 U.S. 483,'; 121 S. Ct. 1711, i';
149 L. Ed. 2d 722,' "'; 2001 U.S. LEXIS 3518
member, the patient receives an identification card
entitling him to obtain marijuana from the Cooperative.
In January 1998, the United States sued the
Cooperative and its executive director, respondent
Jeffrey Jones (together, ['487] the Cooperative), in the
United States District Court for the Northern District of
California. Seeking to enjoin the Cooperative from
distributing and manufacturing marijuana, nl the United
States argued that, ["• 17161 whether or not the
Cooperative's activities are legal under California law,
they violate federal law. Specifically, the Government
argued that the Cooperative violated the Controlled
Substances Act's prohibitions on distributing,
manufacturing, and possessing with the intent to
distribute or manufacture a controlled substance. 21
U.S.C. § 841(a). Concluding that the Government had
established a probability of success on the merits, the
District Court granted a preliminary [' "'730]
injunction. App. to Pet. for Cert. 39a -40a, 5 F. Supp. 2d
at 1105.
nl The Government requested, and the
District Court granted, an injunction that
prohibited the possession of marijuana with the
intent to manufacture and distribute, as well as
the distribution and manufacture of marijuana.
For simplicity, in this opinion, we refer to these
activities collectively as distributing and
manufacturing marijuana. The legal issues are the
same for all of these activities.
The Cooperative did not appeal the injunction but
instead openly violated it by distributing marijuana to
numerous persons, App, to Pet. for Cert. at 21 a -23a. To
terminate these violations, the Government initiated
contempt proceedings. In defense, the Cooperative
contended that any distributions were medically
necessary. Marijuana is the only drug, according to the
Cooperative, that can alleviate the severe pain and other
debilitating symptoms of the Cooperative's patients. Id.
at 29a. The District Court rejected this defense, however,
after determining there was insufficient evidence that
each recipient of marijuana was in actual danger of
imminent harm without the drug. Id. at 29a -32a. The
District Court found the Cooperative in contempt and, at
the Government's request, modified the preliminary
injunction to empower the United States Marshal to seize
the Cooperative's premises. Id. at 37a. Although
recognizing that ['488] "human suffering" could result,
the District Court reasoned that a court's "equitable
powers [do] not permit it to ignore federal law." Ibid.
Three days later, the District Court summarily rejected a
Page 3
motion by the Cooperative to modify the injunction to
permit distributions that are medically necessary.
The Cooperative appealed both the contempt order
and the denial of the Cooperative's motion to modify.
Before the Court of Appeals for the Ninth Circuit
decided the case, however, the Cooperative voluntarily
Purged its contempt by promising the District Court that
it would comply with the initial preliminary injunction,
Consequently, the Court of Appeals determined that the
appeal of the contempt order was moot. 190 F.3d 1109,
1112 -1113 (1999).
The denial of the Cooperative's motion to modify the
injunction, however, presented a live controversy that
was appealable under 28 U.S.C. § 1292(a)(1). Reaching
the merits of this issue, the Court of Appeals reversed
and remanded. According to the Court of Appeals, the
medical necessity defense was a "legally cognizable
defense" that likely would apply in the circumstances.
190 F.3d at 1114. Moreover, the Court of Appeals
reasoned, the District Court erroneously "believed that it
had no discretion to issue an injunction that was more
limited in scope than the Controlled Substances Act
itself." Id. at 1114 -1115. Because, according to the
Court of Appeals, district courts retain "broad equitable
discretion" to fashion injunctive relief, the District Court
could have, and should have, weighed the "public
interest" and considered factors such as the serious harm
in depriving patients of marijuana. Ibid. Remanding the
case, the Court of Appeals instructed the District Court
to consider "the criteria for a medical necessity
exemption, and, should it modify the injunction, to set
forth those criteria in the modification order." Id. at
1115. Following these instructions, the District Court
granted the Cooperative's [ "489] motion to modify the
injunction to incorporate a medical necessity defense. n2
n2 The amended preliminary injunction
reaffirmed that the Cooperative is generally
enjoined from manufacturing, distributing, and
possessing with the intent to manufacture or
distribute marijuana, but it carved out an
exception for cases of medical necessity.
Specifically, the District Court ordered that "the
foregoing injunction does not apply to the
distribution of cannabis by (the Cooperative] to
patient- members who (1) suffer from a serious
medical condition, (2) will suffer imminent harm
if the patient- member does not have access to
cannabis, (3) need cannabis for the treatment of
the patient- member's medical condition, or need
cannabis to alleviate the medical condition or
symptoms associated with the medical condition,
and (4) have no reasonable legal alternative to
000042
532 U.S. 483, *; 121 S. Ct. 1711, * *;
149 L. Ed. 2d 722, * * *; 2001 U.S. LEXIS 3518
cannabis for the effective treatment or alleviation
of the patient - member's medical condition or
symptoms associated with the medical condition
because the patient - member has tried all other
legal alternatives to cannabis and the alternatives
have been ineffective in treating or alleviating the
patient- member's medical condition or symptoms
associated with the medical condition, or the
alternatives result in side effects which the
patient- member cannot reasonably tolerate." App.
to Pet. for Cert. 16a -17a.
The United States appealed the District
Court's order amending the preliminary
injunction. At the Government's request, we
stayed the order pending the appeal. 530 U.S.
1298 (2000). The Court of Appeals has
postponed oral argument pending our decision in
this case.
[* *1717] [ ** *731]
The United States petitioned for certiorari to review
the Court of Appeals' decision that medical necessity is a
legally cognizable defense to violations of the Controlled
Substances Act. Because the decision raises significant
questions as to the ability of the United States to enforce
the Nation's drug laws, we granted certiorari. 531 U.S.
1010 (2000).
Il
The Controlled Substances Act provides that,
"except as authorized by this subchapter, it shall be
unlawful for any person knowingly or intentionally ... to
manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a
controlled substance." 21 U.S.C. § 841(a)(1). The
subchapter, in turn, establishes exceptions. [ *490] For
marijuana (and other drugs that have been classified as
"schedule I" controlled substances), there is but one
express exception, and it is available only for
Government- approved research projects, § 823(f). Not
conducting such a project, the Cooperative cannot, and
indeed does not, claim this statutory exemption.
[ * * *LEdHRIB] [1B]The Cooperative contends,
however, that notwithstanding the apparently absolute
language of § 841(a), the statute is subject to additional,
implied exceptions, one of which is medical necessity.
According to the Cooperative, because necessity was a
defense at common law, medical necessity should be
read into the Controlled Substances Act. We disagree,
[ * * *LEd1IR2] [2]As an initial matter, we note that it is
an open question whether federal courts ever have
authority to recognize a necessity defense not provided
Page 4
by statute. A necessity defense "traditionally covered the
situation where physical forces beyond the actor's control
rendered illegal conduct the lesser of two evils." United
States v. Bailey, 444 U.S. 394, 410, 62 L. Ed. 2d 575,
100 S. Ct. 624 (1980). Even at common law, the defense
of necessity was somewhat controversial. See, e.g.,
Queen v. Dudley & Stephens, 14 QB 273 (1884). And
under our constitutional system, in which federal crimes
are defined by statute rather than by common law, see
United States v. Hudson, 1 I U.S. 32, 7 Cranch 32, 34, 3
L. Ed. 259 (1812), it is especially so. As we have stated:
"Whether, as a policy matter, an exemption should be
created is a question for legislative judgment, not judicial
inference." United States v. Rutherford, 442 U.S. 544,
559, 61 L. Ed. 2d 68, 99 S. Ct. 2470 (1979). Nonetheless,
we recognize that this Court [ ** *732] has discussed the
possibility of a necessity defense without altogether
rejecting it. See, e.g., Bailey, supra, at 415. n3
n3 The Cooperative is incorrect to suggest
that Bailey has settled the question whether
federal courts have authority to recognize a
necessity defense not provided by statute. There,
the Court rejected the necessity defense of a
prisoner who contended that adverse prison
conditions justified his prison escape. The Court
held that the necessity defense is unavailable to
prisoners, like Bailey, who fail to present
evidence of a bona fide effort to surrender as
soon as the claimed necessity had lost its coercive
force. 444 U.S. at 415. It was not argued, and so
there was no occasion to consider, whether the
statute might be unable to bear any necessity
defense at all. And although the Court noted that
Congress "legislates against a background of
Anglo -Saxon common law" and thus "may" have
contemplated a necessity defense, the Court
refused to "balance [the] harms," explaining that
"we are construing an Act of Congress, not
drafting it." Id. at 415, n. 11.
[* *1718] [ *491]
[ * * *LEdHRIC] [IC] [ * * *[.EdHR3] [3]
[* * *LEdHR4A] [4A]We need not decide, however,
whether necessity can ever be a defense when the federal
statute does not expressly provide for it. In this case, to
resolve the question presented, we need only recognize
that a medical necessity exception for marijuana is at
odds with the terms of the Controlled Substances Act.
The statute, to be sure, does not explicitly abrogate the
defense, n4 But its provisions leave no doubt that the
defense is unavailable.
[ * * *LEdfIR4B] [4B]
000043
532 U.S. 483,'; 121 S. Ct. 1711, * *;
149 L. Ed. 2d 722, * * *; 2001 U.S. LEXIS 3518
n4 We reject the Cooperative's intimation
that elimination of the defense requires an
"explicit" statement. Brief for Respondents 21.
Considering that we have never held necessity to
be a viable justification for violating a federal
statute, see supra, at 5-6, and n. 3, and that such a
defense would entail a social balancing that is
better left to Congress, we decline to set the bar
so high.
[ * * *LEdHRiD] [ID] [ * *'LEdHR5] [5]Under any
conception of legal necessity, one principle is clear: The
defense cannot succeed when the legislature itself has
made a "determination of values." I W. LaFave & A.
Scott, Substantive Criminal Law § 5.4, p. 629 (1986).
In the case of the Controlled Substances Act, the statute
reflects a determination that marijuana has no medical
benefits worthy of an exception (outside the confines of a
Government- approved research project). Whereas some
other drugs can be dispensed and prescribed for medical
use, see 21 U.S.C. § 829, the same is not true for
marijuana. Indeed, for purposes of the Controlled
Substances Act, marijuana has "no currently accepted
medical use" at all. § 811.
[ * * *LEdIIRIE] [IE]The structure of the Act supports
this conclusion. The statute divides drugs into five
schedules, depending in part on whether the particular
drug has a currently accepted [ *492] medical use. The
Act then imposes restrictions on the manufacture and
distribution of the substance according to the schedule in
which it has been placed. Schedule I is the most
restrictive schedule. n5 The Attorney General can
include a drug in schedule I only if the drug "has no
currently accepted medical use in treatment in the United
States," "has a high potential for abuse," and has "a lack
of accepted safety for use . . . under medical
supervision." § § 812(b)(1)(A) -(C). Under the statute,
the Attorney General could not put marijuana into
schedule I if [•* *733] marijuana had any accepted
medical use.
n5 As noted, supra, at 5, the only express
exception for schedule I drugs is the
Govern ment- approved research project, see 21
U.S.C. § 823(f). Unlike drugs in other schedules,
see § 829, schedule I drugs cannot be dispensed
under a prescription.
The Cooperative points out, however, that the
Attorney General did not place marijuana into schedule I.
Congress put it there, and Congress was not required to
Page 5
find that a drug lacks an accepted medical use before
including the drug in schedule 1. We are not persuaded
that this distinction has any significance to our inquiry.
Under the Cooperative's logic, drugs that Congress
places in schedule I could be distributed when medically
necessary whereas drugs that the Attorney General
places in schedule I could not. Nothing in the statute,
however, suggests that there are two tiers of schedule I
narcotics, with drugs in one tier more readily available
than drugs in the other. On the contrary, the statute
consistently treats all schedule I drugs alike. See, e.g., §
823(a) (providing criteria for Attorney General to
consider when determining whether to register an
applicant to manufacture schedule I controlled
substances), § 823(b) (providing criteria for Attorney
General to consider [* *1719] when determining
whether to register an applicant to distribute schedule I
controlled substances), § 823(f) (providing procedures
for becoming a government- approved research project),
§ 826 (establishing production quotas for schedule 1
drugs). Moreover, [ *493] the Cooperative offers no
convincing explanation for why drugs that Congress
placed on schedule I should be subject to fewer controls
than the drugs that the Attorney General placed on the
schedule. Indeed, the Cooperative argues that, in placing
marijuana and other drugs on schedule 1, Congress
"wished to assert the most restrictive level of controls
created by the [Controlled Substances Act]." Brief for
Respondents 24. If marijuana should be subject to the
most restrictive level of controls, it should not be treated
any less restrictively than other schedule I drugs.
[ * * *LEdHR1F] [IF] [ ..LEdHR6A] [6A]The
Cooperative further argues that use of schedule I drugs
generally -- whether placed in schedule I by Congress or
the Attorney General -- can be medically necessary,
notwithstanding that they have "no currently accepted
medical use." According to the Cooperative, a drug may
not yet have achieved general acceptance as a medical
treatment but may nonetheless have medical benefits to a
particular patient or class of patients. We decline to parse
the statute in this manner. It is clear from the text of the
Act that Congress has made a determination that
marijuana has no medical benefits worthy of an
exception. The statute expressly contemplates that many
drugs "have a useful and legitimate medical purpose and
are necessary to maintain the health and general welfare
of the American people," § 801(1), but it includes no
exception at all for any medical use of marijuana.
Unwilling to view this omission as an accident, and
unable in any event to override a legislative
determination manifest in a statute, we reject the
Cooperative's argument. n6
[' *'LEdHR6B] [6B]
532 U.S. 483,'; 121 S. Ct. 1711, * *;
149 L. Ed. 2d 722, ** *; 2001 U.S. LEXIS 3518
n6 The Government argues that the 1998
"sense of the Congress" resolution, 112 Stat.
2681 -760 to 2681 -761, supports its position that
Congress has foreclosed the medical necessity
defense. Entitled "Not Legalizing Marijuana for
Medicinal Use," the resolution declares that
"Congress continues to support the existing
Federal legal process for determining the safety
and efficacy of drugs and opposes efforts to
circumvent this process by legalizing marijuana,
and other Schedule I drugs, for medicinal use
without valid scientific evidence and the approval
of the Food and Drug Administration." Because
we conclude that the Controlled Substances Act
cannot sustain the medical necessity defense, we
need not consider whether the 1998 "sense of the
Congress resolution" is additional evidence of a
legislative determination to eliminate the defense.
[*494]
[* **LEdHR7] [7] [ * **LEdHR8] [8]17inally, the
Cooperative contends [ ** *734] that we should construe
the Controlled Substances Act to include a medical
necessity defense in order to avoid what it considers to
be difficult constitutional questions. In particular, the
Cooperative asserts that, shorn of a medical necessity
defense, the statute exceeds Congress' Commerce Clause
powers, violates the substantive due process rights of
patients, and offends the fundamental liberties of the
people under the Fifth, Ninth, and Tenth Amendments.
As the Cooperative acknowledges, however, the canon of
constitutional avoidance has no application in the
absence of statutory ambiguity. Because we have no
doubt that the Controlled Substances Act cannot bear a
medical necessity defense to distributions of marijuana,
we do not find guidance in this avoidance principle. Nor
do we consider the underlying constitutional issues
today, Because the Court of Appeals did not address
these claims, we decline to do so in the first instance.
[* * *LEd]IRIG] [IG] [ * *'LEdlIR9A] [9A]
[ *'*LEdHRIOA] [IOA]For these reasons, we hold that
medical necessity is not a defense to manufacturing and
distributing marijuana. n7 [**1720] The [*495] Court
of Appeals erred when it held that medical necessity is a
"legally cognizable defense." 190 F.3d at 1114. It further
erred when it instructed the District Court on remand to
consider "the criteria for a medical necessity exemption,
and, should it modify the injunction, to set forth those
criteria in the modification order." Id. at 1 1 15.
[ * * *LEdHR9B] 19131
Page 6
n7 Lest there be any confusion, we clarify
that nothing in our analysis, or the statute,
suggests that a distinction should be drawn
between the prohibitions on manufacturing and
distributing and the other prohibitions in the
Controlled Substances Act. Furthermore, the very
point of our holding is that there is no medical
necessity exception to the prohibitions at issue,
even when the patient is "seriously ill" and lacks
alternative avenues for relief. Indeed, it is the
Cooperative's argument that its patients are
"seriously ill," see, e.g., Brief for Respondents
11, 13, 17, and lacking "alternatives," see, e.g.,
id. at 13. We reject the argument that these
factors warrant a medical necessity exception. If
we did not, we would be affirming instead of
reversing the Court of Appeals.
Finally, we share JUSTICE STEVENS'
concern for "showing respect for the sovereign
States that comprise our Federal Union." Post, at
3 (opinion concurring in judgment). However, we
are "construing an Act of Congress, not drafting
it." United States v. Bailey, 444 U.S. 394, 415, n.
11, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980).
Because federal courts interpret, rather than
author, the federal criminal code, we are not at
liberty to rewrite it. Nor are we passing today on
a constitutional question, such as whether the
Controlled Substances Act exceeds Congress'
power under the Commerce Clause.
[ * **LEdHRI IA] [1 IA]The Cooperative contends that,
even if the Controlled Substances Act forecloses the
medical necessity defense, there is an alternative ground
for affirming the Court of Appeals. This case, the
Cooperative reminds us, arises from a motion to modify
an injunction to permit distributions that are medically
necessary. According to the Cooperative, the Court of
Appeals was correct that the District Court had "broad
equitable discretion" to tailor the injunctive relief to
account for medical necessity, irrespective of whether
there is a legal defense of necessity in the statute. Id. at
1114. To sustain [ ** *7351 the judgment below, the
argument goes, we need only reaffirm that federal courts,
in the exercise of their equity jurisdiction, have
discretion to modify an injunction based upon a
weighing of the public interest. n8
[** *LFdl]R11B] [1113]
000045
532 U.S. 483, *; 121 S. Ct. 1711, * *;
149 L. Ed. 2d 722, * * *; 2001 U.S. LEXIS 3518
n8 Notwithstanding JUSTICE STEVENS'
concerns, post, at 4, it is appropriate for us to
address this issue because this case arises from a
motion to modify the injunction, because the
Court of Appeals held that the District Court
misconstrued its equitable discretion, and because
the Cooperative offers this conclusion as an
alternative ground for affirmance.
[ * * *LEdHR10B] [10B] [ * * *LEdHR12A] [12A]We
disagree. Although district courts whose equity powers
have been properly invoked indeed have discretion in
fashioning injunctive relief (in the absence of a statutory
restriction), the Court of Appeals erred concerning the
factors that the district courts may consider in exercising
such discretion. [ *4961
A
[ * * *LEdHR12B] [12B]As an initial matter, the
Cooperative is correct that, when district courts are
properly acting as courts of equity, they have discretion
unless a statute clearly provides otherwise. For "several
hundred years," courts of equity have enjoyed "sound
discretion" to consider the "necessities of the public
interest" when fashioning injunctive relief. Hecht Co. v.
Bowles, 321 U.S. 321, 329 -330, 88 L. Ed. 754, 64 S. Ct.
587 (1944). See also id. at 329 ( "The essence of equity
jurisdiction has been the power of the Chancellor to do
equity and to mould each decree to the necessities of the
particular case. Flexibility rather than rigidity has
distinguished it "); Weinberger v. Romero - Barcelo, 456
U.S. 305, 312, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982)
( "In exercising their sound discretion, courts of equity
should pay particular regard for the public consequences
in employing the extraordinary remedy of injunction ").
Such discretion is displaced only by a "clear and valid
legislative command." Porter v. Warner Holding Co.,
328 U.S. 395, 398, 90 L. Ed. 1332, 66 S. Ct. 1086
(1946). See also Romero - Barcelo, supra, at 313 ( "Of
course, Congress may intervene and guide [ ** 17211 or
control the exercise of the courts' discretion, but we do
not lightly assume that Congress has intended to depart
from established principles ").
[ * * *LEdlIR13] 113 ]The Cooperative is also correct that
the District Court in this case had discretion. The
Controlled Substances Act vests district courts with
jurisdiction to enjoin violations of the Act, 21 U.S.C. §
882(a). But a "grant of jurisdiction to issue [equitable
relief) hardly suggests an absolute duty to do so under
any and all circumstances," Hecirr, supra, at 329
(emphasis omitted). Because the District Court's use of
equitable power is not textually required by any "clear
Page 7
and valid legislative command," the court did not have to
issue an injunction.
TVA v. Hill, 437 U.S. 153, 57 L. Ed. 2d 117, 98 S.
Ct. 2279 (1978), does not support the Government's
contention that the District Court lacked discretion in
fashioning injunctive relief. In Hill, the Court held that
the Endangered Species Act of 1973 required the [ *497]
District Court to enjoin completion of a dam, whose
operation would either eradicate the known population of
the snail darter or destroy its critical habitat. Id. at 193-
195. [* *•736] The District Court lacked discretion
because an injunction was the "only means of ensuring
compliance." Romero - Barcelo, supra, at 314 (explaining
why the District Court in Hill lacked discretion).
Congress order of priorities," as expressed in the statute,
would be deprived of effect if the District Court could
choose to deny injunctive relief. Hill, supra, at 194. In
effect, the District Court had only a Hobson's choice. By
contrast, with respect to the Controlled Substances Act,
criminal enforcement is an alternative, and indeed the
customary, means of ensuring compliance with the
statute. Congress' resolution of the policy issues can be
(and usually is) upheld without an injunction.
B
[* * *1,EdHRIOC] 110C]But the mere fact that the
District Court had discretion does not suggest that the
District Court, when evaluating the motion to modify the
injunction, could consider any and all factors that might
relate to the public interest or the conveniences of the
parties, including the medical needs of the Cooperative's
patients. On the contrary, a court sitting in equity cannot
"ignore the judgment of Congress, deliberately expressed
in legislation." Virginian R. Co. v. Railway F,mplayees,
300 U.S. 515, 551 (1937). A district court cannot, for
example, override Congress' policy choice, articulated in
a statute, as to what behavior should be prohibited.
"Once Congress, exercising its delegated powers, has
decided the order of priorities in a given area, it is ... for
the courts to enforce them when enforcement is sought."
Hill, 437 U.S. 153, 194. Courts of equity cannot, in their
discretion, reject the balance that Congress has struck in
a statute. Id. at 194 -195. 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 [ *498] means; their
choice is not whether enforcement is preferable to no
enforcement at all. n9 Consequently, [* *1722] when a
court of equity exercises its discretion, it may not
consider the advantages and disadvantages of
nonenforcement of the statute, but only the advantages
and disadvantages of "employing the extraordinary
remedy of injunction," Romero - Barcelo, 456 U.S. at 311,
over the other available methods of enforcement.
000046
532 U.S. 483,'; 121 S. Ct. 1711, * *;
149 L. Ed. 2d 722, * * *; 2001 U.S. LEXIS 3518
[* **7371 CC id. at 316 (referring to "discretion to rely
on remedies other than an immediate prohibitory
injunction ") To the extent the district court considers the
public interest and the conveniences of the parties, the
court is limited to evaluating how such interest and
conveniences are affected by the selection of an
injunction over other enforcement mechanisms.
n9 Hecht Co. v. Bowles, 321 U.S. 321, 88 L.
Ed. 754, 64 S. Ct. 587 (1944), for example, held
that the District Court was not required to issue
an injunction to restrain violations of the
Emergency Price Control Act of 1942 and
regulations thereunder when "some 'other order'
might be more appropriate, or at least so appear
to the court." Id. at 328 (quoting statutory
provision that enabled district court to issue an
injunction, a restraining order, "or other order ").
Weinberger v. Romero- Barcelo, 456 U.S. 305, 72
L. Ed. 2d 91, 102 S. Ct. 1798 (1982), held that a
District Court had discretion not to issue an
injunction precluding the United States Navy
from releasing ordnance into water, but to rely on
other means of ensuring compliance, including
ordering the Navy to obtain a permit. Id. at 314-
318. See also Amoco Production Co. v. Gambell,
480 U.S. 531, 544 -546, 94 L. Ed. 2d 542, 107 S.
Ct. 1396 (1987) (holding that a District Court did
not err in declining to issue an injunction to bar
exploratory drilling on Alaskan public lands,
because the district court's decision "did not
undermine" the policy of the Alaska National
Interest Lands Conservation Act, 16 U.S.C. §
3120, and because the Secretary of the interior
had other means of meaningfully complying with
the statute).
C
In this case, the Court of Appeals erred by
considering relevant the evidence that some people have
"serious medical conditions for whom the use of
cannabis is necessary in order to treat or alleviate those
conditions or their symptoms," that these people "will
suffer serious harm if they are denied cannabis," and that
"there is no legal alternative to cannabis [ *499] for the
effective treatment of their medical conditions." 190 F.3d
at 1115. As explained above, in the Controlled
Substances Act, the balance already has been struck
against a medical necessity exception. Because the
statutory prohibitions cover even those who have what
could be termed a medical necessity, the Act precludes
consideration of this evidence. It was thus error for the
Court of Appeals to instruct the District Court on remand
to consider "the criteria for a medical necessity
Page 8
exemption, and, should it modify the injunction, to set
forth those criteria in the modification order." Ibid.
The judgment of the Court of Appeals is reversed,
and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE BREYER took no part in the consideration
or decision of this case.
CONCURBY: STEVENS
CONCUR:
JUSTICE STEVENS, with whom JUSTICE
SOUTER and JUSTICE GINSBURG join, concurring in
the judgment.
Lest the Court's narrow holding be lost in its broad
dicta, let me restate it here: "We hold that medical
necessity is not a defense to manufacturing and
distributing marijuana." Ante, at 10 (emphasis added).
This confined holding is consistent with our grant of
certiorari, which was limited to the question "whether the
Controlled Substances Act, 21 U.S.C. 801 et seq.,
forecloses a medical necessity defense to the Act's
prohibition against manufacturing and distributing
marijuana, a Schedule 1 controlled substance." Pet. for
Cert. (1) (emphasis added). And, at least with respect to
distribution, this holding is consistent with how the issue
was raised and litigated below. As stated by the District
Court, the question before it was "whether [respondents']
admitted distribution of marijuana for use by seriously
[ *500] ill persons upon a physician's recommendation
violates federal law," and if so, whether such distribution
"should be enjoined pursuant to the injunctive relief
provisions of the federal Controlled Substances Act."
United States v. Cannabis Cultivators Club, 5 F. Supp.
2d 1086, 1091 (ND Cal. 1998) (emphasis added).
Accordingly, in the lower courts as well as here,
respondents have raised the medical necessity defense as
a justification for distributing marijuana to cooperative
members, and it 1 ** *738] was in that context that
1* *17231 the Ninth Circuit determined that respondents
had "a legally cognizable defense." 190 F.3d 1109, 1114
(1999). The Court is surely correct to reverse that
determination. Congress' classification of marijuana as a
schedule I controlled substance — that is, one that cannot
be distributed outside of approved research projects, see
21 U.S.C. § § 812, 823(f), 829 -- makes it clear that "the
Controlled Substances Act cannot bear a medical
necessity defense to distributions of marijuana," ante, at
10 (emphasis added)). n
000047
532 U.S. 483, *; 121 S. Ct. 1711, * *;
149 L. Ed. 2d 722, * * *; 2001 U.S. LEXIS 3518
nl In any event, respondents do not fit the
paradigm of a defendant who may assert
necessity. The defense "traditionally covered the
situation where physical forces beyond the actor's
control rendered illegal conduct the lesser of two
evils." United States v. Bailey, 444 U.S. 394, 410,
62 L. Ed. 2d 575, 100 S. C1. 624 (1980); see
generally 1 W. LaFave & A. Scott, Substantive
Criminal Law § 5.4, pp. 627 -640 (1986).
Respondents, on the other hand, have not been
forced to confront a choice of evils -- violating
federal law by distributing marijuana to seriously
ill patients or letting those individuals suffer --
but have thrust that choice upon themselves by
electing to become distributors for such patients.
Of course, respondents also cannot claim
necessity based upon the choice of evils facing
seriously ill patients, as that is not the same
choice respondents face.
Apart from its limited holding, the Court takes two
unwarranted and unfortunate excursions that prevent me
from joining its opinion. First, the Court reaches beyond
its holding, and beyond the facts of the case, by
suggesting that the defense of necessity is unavailable for
anyone under the [ *501) Controlled Substances Act.
Ante, at 6 -9, 10, n. 7, 15. Because necessity was raised in
this case as a defense to distribution, the Court need not
venture an opinion on whether the defense is available to
anyone other than distributors. Most notably, whether the
defense might be available to a seriously ill patient for
whom there is no alternative means of avoiding
starvation or extraordinary suffering is a difficult issue
that is not presented here. n2
n2 As a result, perhaps the most glaring
example of the Court's dicta is its footnote 7,
where it opines that "nothing in our analysis, or
the statute, suggests that a distinction should be
drawn between the prohibitions on manufacturing
and distributing and the other prohibitions in the
Controlled Substances Act." Ante, at 10, n. 7.
Second, the Court gratuitously casts doubt on
"whether necessity can ever be a defense" to any federal
statute that does not explicitly provide for it, calling such
a defense into question by a misleading reference to its
existence as an "open question." Ante, at 5, 6. By
contrast, our precedent has expressed no doubt about the
viability of the common -law defense, even in the context
of federal criminal statutes that do not provide for it in so
many words. See, e.g., United States v. Bailey, 444 U.S.
Page 9
394, 4I5, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980) ( "We
therefore hold that, where a criminal defendant is
charged with escape and claims that he is entitled to an
instruction on the theory of duress or necessity, he must
proffer evidence of a bona fide effort to surrender or
return to custody as soon as the claimed duress or
necessity had lost its coercive force "); id. at 415, n. I 1
( "Our principal difference with the dissent, therefore, is
not as to the existence of such a defense but as to the
importance of surrender as an element of it" (emphasis
added)). Indeed, the Court's comment on the general
availability [ ** *739] of the necessity defense is
completely unnecessary because the Government has
made no such suggestion. Cf. Brief for Petitioner 17 -18
(narrowly arguing that necessity defense cannot succeed
if legislature has [ *502] already "canvassed the issue"
and precluded it for a particular statute (internal
quotation marks omitted)). The Court's opinion on this
point is pure dictum.
The overbroad language of the Court's opinion is
especially unfortunate given the importance of showing
respect for the sovereign States that comprise our Federal
Union. That respect imposes a duty on federal courts,
whenever possible, to avoid [* *1724] or minimize
conflict between federal and state law, particularly in
situations in which the citizens of a State have chosen to
"serve as a laboratory" in the trial of "novel social and
economic experiments without risk to the rest of the
country." New State ke Co. Y. l iebmann, 285 U.S. 262,
311, 76 L. Ed. 747, 52 S. Ct. 371 (1932) (Brandeis, J.,
dissenting). In my view, this is such a case. n3 By
passing Proposition 215, California voters have decided
that seriously ill patients and their primary caregivers
should be exempt from prosecution under state laws for
cultivating and possessing marijuana if the patient's
physician recommends using the drug for treatment. n4
This case does not call upon the Court to deprive all such
patients of the benefit of the necessity defense to federal
prosecution, when the case itself does not involve any
such patients.
n3 Cf. Feeney, Bush Backs States' Rights on
Marijuana: He Opposes Medical Use But Favors
Local Control, Dallas Morning News, Oct. 20,
1999, p. 6 A. 1999 WL 28018944 (then - Governor
Bush supporting state self - determination on
medical marijuana use).
n4 Since 1996, six other States -- Alaska,
Colorado, Maine, Nevada, Oregon, and
Washington -- have passed medical marijuana
initiatives, and Hawaii has enacted a similar
measure through its legislature. See Alaska Stat.
Ann. § § 11.71 .090, 17.37.010 to 17.37.080
Page 10
532 U.S. 483, "; 121 S. Ct. 1711, •';
149 L. Ed. 2d 722,'•"; 2001 U.S. LEXIS 3518
(2000); Colo. Const., Art. XVIII, § 14; Haw. Substances Act. I do not, however, join the dicta in the
Rev. Stat. § § 329 -121 to 329 -128 (Supp. 2000); Court's opinion.
Me. Rev. Stat. Ann., Tit. 22, § 2383 -8(5) (2000);
Nev. Const., Art. 4, § 38; Ore. Rev. Stat. § § REFERENCES: Return To Full Text Opinion
475.300 to 475.346 (1999); Wash. Rev. Code § §
69,51A.005 to 69.51A.902 (1997 and Supp.
2000 - 2001). Go to Supreme Court Brief(s)
Go to Oral Argument Transcript
An additional point deserves emphasis. This case
does not require us to rule on the scope of the District
Court's discretion to enjoin, or to refuse to enjoin, the
possession of marijuana or other potential violations of
the Controlled ['5031 Substances Act by a seriously ill
patient for whom the drug may be a necessity. Whether it
would be an abuse of discretion for the District Court to
refuse to enjoin those sorts of violations, and whether the
District Court may consider the availability of the
necessity defense for that sort of violator, are questions
that should be decided on the authority of cases such as
Hecht Co. v. Bowles, 321 U.S. 321, 88 L. Ed. 754, 64 S.
Ct. 587 (1944), and Weinberger v. Romero- Barcelo, 456
U.S. 305, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982), and
that properly should be left "open" by this case.
join the Court's judgment of reversal because I
agree that a distributor of marijuana does not have a
medical necessity defense under the Controlled
25 Am Jur 2d, Drugs and Controlled Substances 65, 130,
153, 180, 200
21 USCS 841(a)
L Ed Digest, Courts 92.3; Drugs, Narcotics, and Poisons
6
L Ed Index, Marijuana
Annotation References:
Sufficiency of evidence that possessor of marijuana
had intent to distribute it, so as to violate 21 USCS
841(a)(1). 79 ALR Fed 113.
000049
EXHIBIT B
LEXSTAT CAL. HEALTH & SAF CODE 11362.5
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2005 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
••' THIS DOCUMENT REFLECTS ALL URGENCY LEGISLATION ENACTED "•»
THROUGH 2005 CH. 14, APPROVED 6/17/2005 "••
HEALTH AND SAFETY CODE
DIVISION 10. Uniform Controlled Substances Act
CHAPTER 6. Offenses and Penalties
ARTICLE 2. Marijuana
CO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Health & Saf Code § 11362.5 (2005)
§ 11362.5. Use of marijuana for medical purposes
(a) "Phis section shall be known and may be cited as the Compassionate Use Act of 1996.
(b)(l) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of
1996 are as follows:
(A) To 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.
(13) To 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.
(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable
distribution of marijuana to all patients in medical need of marijuana.
(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct
that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.
(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or
privilege, for having recommended marijuana to a patient for medical purposes.
(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana,
shall not apply to a patient, or to 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.
(e) For the purposes of this section, "primary caregiver" means the individual designated by the person exempted
under this section who has consistently assumed responsibility for the housing, health, or safety of that person.
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Cal Health & Saf Code § 11362.5
HISTORY:
Adopted by the voters, Prop. 215 § I, effective November 6, 1996.
NOTES:
Note:
Proposition 215 (1996) provides:
SECTION. 2. If any provision of this measure or the application thereof to any person or circumstance is held invalid,
that invalidity shall not affect other provisions or applications of the measure that can be given effect without the invalid
provision or application, and to this end the provisions of his measure are severable. Related Statutes & Rules:
Medical Marijuana Program: H & S C § § 11362.7 et seq.Collateral References:
Cal Criminal Defense Practice (Matthew Bender) ch 145 "Narcotics and Alcohol Offenses" § 145.01(3).
Law Review Articles:
Good Cop, Bad Cop: Federal Prosecution of State - Legalized Medical Marijuana Use After United States v. Lopez.
88 Cal LR 1575.
The Growing Debate on Medical Marijuana: Federal Power vs. States Rights. 37 Cal Western LR 369.
Proposition 215: legal strategies for the medicinal use of marijuana. 21 LA Law, No. 5, p. 21.
"Silence Is a Fence Around Wisdom ": How Conant V. Walters Broke down the Fence by Securing Physicians' First
Amendment Right to Recommend Medical Marijuana to 'Their Patients. 37 Loy. L.A. L. Rev. 1771.
Raich v. Ashcroft: Medical Marijuana and the Revival of Federalism. 41 San Diego L. Rev. 1873.
Medical Marijuana: State Law Undermines Federal Marijuana Policy -- Is the Establishment Going to Pot? 7 San
Joaquin Agricultural Law Review 73.
Notes of Decisions: 0.5. Constitutionality 1, In General 2. Particular Applications 3. Burden of Proof 4. Return of
Seized Marijuana
0.5. Constitutionality
California residents who suffered from a variety of serious medical conditions sought to avail themselves of medical
marijuana pursuant to the terms of the Compassionate Use Act, H & S C § 11352, and subsequently federal Drug
Enforcement Administration (DEA) agents seized and destroyed the residents' cannabis plants; the residents sought
injunctive and declaratory relief prohibiting enforcement of the federal Controlled Substances Act (CSA), 21 U.S.C.S. §
801 et seq., to the extent it prevented them from possessing, obtaining, or manufacturing cannabis for their personal
medical use; the US Supreme Court held that the power vested in Congress by US Const. Art. 1, § 8, included the
power to prohibit the local cultivation and use of marijuana, even though such cultivation and use was in compliance
with California law. Gonzales v. Raich, 2005 U.S. LF,XIS 4656.
1. In General
The Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5) (marijuana for medical purposes), which was
enacted while defendant's appeal from convictions for possessing and transporting marijuana was pending, could be
applied retroactively to provide, if its terms and the applicable facts permitted, a defense to defendant. The Legislature
is presumed to have extended to defendants whose appeals are pending the benefits of intervening statutory
amendments that decriminalize formerly illicit conduct or reduce the punishment for acts that remain unlawful. No
different rule applies to an affirmative defense to the crime for which a defendant was convicted, which defense was
enacted during the pendency of his or her appeal. Since Health & Saf. Code, § 11362.5, contains no savings clause, it
may operate retrospectively to defend against criminal liability, in whole or in part, for some who are appealing
convictions for possessing, cultivating, and using marijuana. People v Trippet (1997, 1st Dist) 56 Cal App 4th 1532, 66
Cal Rptr 2d 559.
Health & Saf. Code, § 1 1362.5 (Prop. 215; "Medical Use of Marijuana" initiative), provides a partial defense to
charges of possession of marijuana, but not to charges of selling marijuana or possessing marijuana for sale. People ex
rel. Lungren v Peron (1997, 1 st Dist) 59 Cal App 4th 1383, 70 Cal Rptr 2d 20.
Although the sale and distribution of marijuana remain criminal offenses under Ilealth & Saf. Code, § 11360, bona
fide primary caregivers, as defined by the "Medical Use of Marijuana" initiative (Prop. 215; Health & Saf. Code, §
1 1362.5), should not be precluded from receiving bona fide reimbursement for their actual expense of cultivating and
furnishing marijuana for the patient's approved medical treatment. Consistently assuming responsibility for the housing,
health, or safety of a patient does not preclude the caregiver from charging the patient for such services. However, Prop.
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Cal Health & Saf Code § 11362.5
215 provides a defense for patients and primary caregivers only, to prosecution for two criminal offenses only:
possession (Health & Saf. Code, § 11357), and cultivation (Health & Saf. Code, § 11358). People ex rel. Lungren v
Peron (1997, 1st Dist) 59 Cal App 4th 1383, 70 Cal Rptr 2d 20.
In sentencing a defendant who pleaded guilty to cultivating marijuana, the trial court properly imposed a probation
condition prohibiting him from using or possessing marijuana, without providing an exception for medical use.
Although the Compassionate Use Act included language indicating a broad purpose to provide for the medical use of
marijuana and to exempt patients from criminal sanction (H & S C § 11362.5), these provisions could not be read so
broadly as to abrogate the trial court's traditional discretion to impose appropriate conditions of probation. Here the
condition at issue was directly related to defendant's criminal offense and was reasonably related to the goal of ensuring
that he did not commit subsequent criminal offenses under state law. The Compassionate Use Act did not condone the
diversion of marijuana use for nonmedical purposes and defendant had apparently done just that in the past. People v
Bianco (2001, 3rd Dist) 93 Cal App 4th 748, 113 Cal Rptr 2d 392.
Diabetic criminally accused of possession and cultivation of marijuana at advice of his physician was allowed to raise
his status as qualified patient under Compassionate Use Act of 1996 to move for dismissal of indictment; H & S C §
11362.5(d) provided that H & S C § 11357, criminalizing the possession of marijuana, and H & S C § 11358,
criminalizing the cultivation of marijuana, did not apply to a patient, or to a patient's primary caregiver, who possessed
Or cultivated marijuana for medical purposes. People v Mower (2002) 28 Cal 4th 457, 122 Cal Rptr 2d 326, 49 P3d
1067.
For a defendant to be able to avoid criminal prosecution or sanction pursuant to H & S C § I I362.5(b)(1)(B), when
charged with possession or cultivation of marijuana in violation of II & S C § § 11357, 11358, he or she must be able
to defend on the ground that these provisions do not apply because he or she is a qualified patient or primary caregiver
under H & S C § I I362.5(d). People v Mower (2002) 28 Cal 4th 457, 122 Cal Rptr 2d 326, 49 P3d 1067.
Probable cause depends on all of the surrounding facts, including those that reveal a person's status as a qualified
patient or primary caregiver under 11 & S C § I I362.5(d). The requirement that law enforcement officers have probable
cause for an arrest does not mean that § I I362.5(d) must be interpreted to grant such persons immunity from arrest.
People v Mower (2002) 28 Cal 4th 457, 122 Cal Rptr 2d 326, 49 P3d 1067.
H & S C § 11362.5(d) grants a defendant a limited immunity from prosecution, which not only allows a defense at
trial, but also permits a motion to set aside an indictment or information prior to trial. People v Mower (2002) 28 Cal
4th 457, 122 Cal Rptr 2d 326, 49 P3d 1067.
H & S C § I I362.5(d)'s grant of limited immunity from prosecution does not operate, as does that of Ins C §
12924(b), for reasons extrinsic to the criminality of the underlying conduct. Rather, it operates, in the manner of Pen C
§ 602(n), to render noncriminal certain conduct that otherwise would be criminal. People v Mower (2002) 28 Cal 4th
457, 122 Cal Rptr 2d 326, 49 P3d 1067.
Transportation of marijuana allegedly used or to be used for medical purposes was not exempted from prosecution
under Cal. Proposition 215, nor was a medical necessity defense created for those possessing marijuana who were not
patients or their primary caregivers. People v Galambos (2002, 3rd Dist) 104 Cal App 4th 1147, 128 Cal Rptr 2d 844.
Medical necessity defense is not the measure of the right to obtain marijuana for medical purposes granted by H & S
C § 11362.5. People v Tilehkooh (2003, 3rd Dist) 113 Cal App 4th 1433.
Defendant may assert H & S C § 11362.5 as a defense to the criminal sanction of revocation of his probation where
there is no claim that his conduct endangered others or that he diverted marijuana for nonmedical purposes as set forth
in H & S C § 11365.5, nor does a probation condition which prohibits the lawful use of a prescription drug serve a
rehabilitative purpose. People v Tilehkooh (2003, 3rd Dist) 113 Cal App 4th 1433.
Since the federal marijuana law is given effect only by its incorporation in the state law as a probation condition, it is
subject to the state law defense of H & S C § 11362.5. People v Tilehkooh (2003, 3rd Dist) 113 Cal App 4th 1433.
California courts do not enforce the federal marijuana possession laws when defendants prosecuted for marijuana
possession have a qualified immunity under H & S C § 11362.5; similarly, California courts should not enforce federal
marijuana law for probationers who qualify for the immunity provided by § 11362.5. People v Tilehkooh (2003, 3rd
Dist) 113 Cal App 4th 1433.
Where defendants pled guilty to the federal offense of maintaining a place for the manufacturing of marijuana after a
police raid of a commercially- leased building led to the seizure of at least 1,245 rooted plants, and defendants sought a
downward sentencing departure on the basis that their conduct was permissible under H & S C § 1 1362.5, no
downward departure was warranted because § 11362.5 did not immunize large -scale growing operations intended to
distribute marijuana. United States v Landa (2003, ND Cal) 281 F Supp 2d 1139.
Where medical marijuana users and growers challenged the constitutionality of the Controlled Substances Act (CSA),
21 U.S.C.S. § § 801 et seq., they were entitled to a preliminary injunction because they demonstrated a strong
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Cal Health & Saf Code § 11362.5
likelihood of success on their claim that, as applied to them, the CSA was an unconstitutional exercise of Congress'
Commerce Clause, U.S. Const. art. 1, § 8, cl. 3, authority. Reich v Ashcroft (2003, CA9 Cal) 2003 US App LEXIS
25317.
Conviction for cultivating marijuana was reversed because the jury was erroneously instructed that for a
compassionate use defense, defendant had to prove that he was "seriously ill." The question of whether the medical use
of marijuana was appropriate was a determination that was to be made by a physician and that was not to be second -
guessed by jurors. People v Spark (2004, Cal App 5th Dist) 2004 Cal App LEXIS 1261.
2. Particular Applications
In a prosecution in which defendant was convicted of transporting marijuana and possession of more than 28.5 grams
of marijuana, remand for a limited retrial was required for the trial court to determine whether the Compassionate Use
Act of 1996 (H & S C § 11362.5) (marijuana for medical purposes), which was enacted while defendant's appeal was
pending, and which applied retroactively, provided her with a partial defense to either or both of the charges against her.
First, H & S C § 11362.5(d), provides that H & S C § 11357, relating to the possession of marijuana, does not apply to
a patient who possesses marijuana for the personal medical purposes of the patient upon the written or oral
recommendation or approval of a physician. Although, defendant could not show that her physician "recommended"
marijuana to her to treat her migraine headaches, the record was unclear as to whether or not any physician had
"approved" defendant's use of marijuana. It was possible that, on retrial, defendant could show that the quantity of
marijuana possessed, and the form and manner in which it was possessed, was reasonably related to her current medical
needs. Second, Health & Saf. Code, § 11362.5, does not exempt the transportation of marijuana allegedly used or to be
used for medical purposes from prosecution under Health & Saf. Code, § 11360. However, if the quantity transported
and the method, timing, and distance of the transportation are reasonably related to the patient's current medical needs,
there can be an implied defense to a Health & Saf. Code, § 11360, charge. In this case, there was a remote possibility
that defendant could establish that the two pounds of marijuana she was transporting at the time of her arrest met this
test. People v Trippet (1997, 1 st Dist) 56 Cal App 4th 1532, 66 Cal Rptr 2d 559.
The trial court erred when it modified a preliminary injunction that prohibited certain individuals from selling and
furnishing marijuana at a "Cannabis Buyers' Club" that was open to the public in a large city, so as to allow the
individuals to engage in nonprofit marijuana sales under the "Medical Use of Marijuana" initiative (Prop. 215; Health &
Saf. Code, § 11362.5). The sale and possession for sale of marijuana continue to be proscribed by Health & Saf. Code,
§ § 11360, subd. (a), and 11359, following enactment of Prop. 215, and the lack of profit to the seller does not exempt
such activities from prosecution. The laws prohibiting the distribution of controlled substances, including marijuana, do
not distinguish between sales and gifts. Although Prop. 215 allows patients to cultivate their own medicinal marijuana,
the analysis and arguments contained in the ballot pamphlet indicate that the drafters were aware of both state and
federal law prohibiting such sales and did not seek to overrule those laws. People ex rel. Lungren v Peron (1997, 1 st
Dist) 59 Cal App 4th 1383, 70 Cal Rptr 2d 20.
The trial court erred when it modified a preliminary injunction that prohibited certain individuals from selling and
furnishing marijuana at a "Cannabis Buyers' Club" that was open to the public in a large city, so as to allow the
individuals to sell marijuana to persons who had designated the individuals as their "primary caregivers" under the
"Medical Use of Marijuana" initiative (Prop. 215; Health & Saf. Code, § 11362.5). The thousands of persons who
patronized the club, and who designated the marijuana sellers in the club as "primary caregivers" at the time of sale, did
not thereby confer that status on the sellers. Prop. 215 defines "primary caregiver" as an individual "who has
consistently assumed responsibility for the housing, health, or safety" of a patient for whom medicinal marijuana has
been prescribed (Health & Saf. Code, § 11362.5, subd. (e)). Even though an individual may be a "primary caregiver" to
more than one patient, a person purchasing marijuana for medicinal purposes cannot designate seriatim, and on an ad
hoc basis, drug sellers as "primary caregivers." Thus, the "consistency" of these sellers' purported primary carcgiving
was a myth. People ex rel. Lungren v Peron (1997, 1 st Dist) 59 Cal App 4th 1383, 70 Cal Rptr 2d 20.
Where defendant was arrested for cultivation of marijuana the day before the effective date of the Compassionate Use
Act of 1996 (H & S C § 11362.5) and, over three months later, he obtained a doctor's approval on a written prescription
form for medical use of marijuana, the trial court did not err in ruling that approval three months after the arrest did not
bring the case within § 11362.5. People v Rigo (1999, 1st Dist) 69 Cal App 4th 409, 81 Cal Rptr 2d 624.
Defendant was properly convicted of transporting 135.3 grams of marijuana in his car, despite the claim the trial court
erred in failing to instruct the jury on mistake of fact because defendant believed he was entitled to transport marijuana
under the Compassionate Use Act of 1996 (H & S C § 11362.5). The Act, which on its face exempted only possession
and cultivation from criminal sanctions for qualifying patients, did not provide defendant with a defense to the charge of
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Cal Health & Saf Code § 1 1362.5
transportation of marijuana; accordingly, defendant's assumption that this defense applied to him was an inexcusable
mistake of law, not a mistake of fact. People v Young (2001, 3rd Dist) 92 Cal App 4th 229, 111 Cal Rptr 2d 726.
Law enforcement officers were not required to abandon a search for marijuana authorized by a search warrant, even
though a resident of the premises to be searched produced documents that suggested he had a physician's permission to
possess the marijuana pursuant to the Compassionate Use Act of 1996 (H & S C § 11362.5(d)). Nowhere in § 11362.5
was any criminal offense defined. Subdivision (d) did no more than refer to the offenses already defined in H & S C § §
11357, 11358, and created an exception to their applicability. Since the exception provided by subdivision (d) did not
constitute any part of the definition of the offenses described by § § 11357, 11358, the exception constituted an
affirmative defense to be proven by the defendant at trial. People v Fisher (2002, 3rd Dist) 96 Cal App 4th 1147, 117
Cal Rptr 2d 838.
Defendant's probation could not be revoked on the ground that he violated a condition of his probation by possessing
marijuana, where defendant gave his probation officer a notarized physician's certificate, signed by a doctor, that
recommended cannabis for defendant's medical condition, where a card with defendant's picture and signature identified
him as a medical marijuana user, and where there was no claim that his conduct endangered others or that he diverted
marijuana foe nonmedical purposes. People v Tilthkooh (2443, 3rd Dist) 113 Cal App 4th 1433.
Ina probation revocation proceeding, the People may not evade H & S C § 11362.5 on the ground that a defendant
violated a probation condition that he obey the federal marijuana laws. People v Tilehkooh (2003, 3rd Dist) 113 Cal
App 4th 1433.
H & S C § 11362,5 provides a "defense in court" in a probation revocation proceeding because if successful it would
obviate any need for the criminal sanction of revocation. People v Tilehkooh (2003, 3rd Dist) 113 Cal App 4th 1433.
H & S C § 11362.5 provides a defense to a probation revocation based on marijuana possession or use. People v
Tilehkooh (2003, 3rd Dist) 113 Cal App 4th 1433.
H & S C § 11362.5 applied to any illness for which marijuana provides relief. People v Tilehkooh (2003, 3rd Dist)
113 Cal App 4th 1433.
Motion to reinstate a complaint for cultivating marijuana was properly heard and denied by the superior court.
Applying the substantial evidence standard to the trial court's finding that defendant was cultivating marijuana for
personal medical use, the court found that defendant had the requisite medical authorization and several back injuries
that caused him severe pain, which was impervious to traditional pain medications; although his garden was extremely
healthy and could have possibly yielded up to one pound of marijuana for each of 12 plants, his previous two efforts had
yielded no more than two to three ounces per plant. People v Arbacauskas (2004, 3rd Dist) 123 Cal App 4th 502, mod
(Cal App 3rd Dist) 2004 Cal App LEXIS 1942.
Where defendant asserted the compassionate use of marijuana defense, the trial court accurately instructed the jury on
the meaning of the term "primary caregiver" under H & S C § 11362.5(e) by using an instruction that tracked the
statutory language. People v Frazier (2005, 3rd Dist) 128 Cal App 4th 807.
Because a federal court would not have jurisdiction in forfeiture proceedings against the subject marijuana, the court
therefore improperly issued a seizure warrant and the federal government was ordered to return the marijuana to state
custody where a California court had ordered the marijuana returned to a petitioner who possessed it pursuant to H & S
C § 11362,5. In re Seizure of Approximately 28 Grams of Marijuana (2003, ND Cal) 2003 US Dist LEXIS 14853.
As California's statutory defense of medical necessity was inapplicable to the charges against petitioner (possession of
marijuana while in prison), the exclusion of evidence in support of such defense did not violate petitioner's
constitutional right to present a defense; H & S C § 11362.5, which provided a defense to the possession of marijuana
based on medical necessity, did not apply to charges under Pen C § 4573.6. Taylor v Hamlet (2003, ND Cal) 2003 US
Dist LEXIS 19451.
In a case regarding whether petitioner doctor indiscriminately recommended the medicinal use of marijuana to one of
his patients, where the Medical Board of California obtained an order from respondent, and the Superior Court of Los
Angeles County (California), directed the doctor to comply with the administrative subpoena for the patient's records,
the appellate court granted the doctor's petition for a writ of mandate and ordered the trial court to vacate its order
enforcing the subpoena for the patient's medical records; Medical Board failed to demonstrate sufficient facts to support
a finding of good cause to invade the patient's right of privacy in his medical records. Bearman v Superior Court (2004,
Cal App 2nd Dist) 2004 Cal App LEXIS 438.
By showing park rangers a letter stating that he possessed marijuana for personal medical purposes pursuant to 14 &S
C § 1 1362.5, the patient did not waive his right to privacy in his medical records under Cal Const Art 1, § 1 ; if he had
not produced the record he would have been detained or arrested, and interpreting H & S C § 1 1362.5 as necessitating
waiver of the fundamental right to privacy in order to enjoy its protection would hinder the intent of the statute.
Bearman v Superior Court (2004, Cal App 2nd Dist) 2004 Cal App LEXIS 438.
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Cal Health & Saf Code § 11362.5
Trial court erred in precluding defendant from relying on the compassionate use defense; the Compassionate Use Act
can provide a defense to the charge of transporting marijuana when there is reasonable doubt as to whether the
transportation was reasonably related to the defendant's medical needs. People v Wright (2004, Cal App 4th Dist) 2004
Cal App LEXIS 1450.
3. Burden of Proof
Physician gives his or her "approval" of a patient's marijuana use within the meaning of the Compassionate Use Act if
the physician expresses to the patient a favorable opinion of marijuana use for treatment of the patient's illness. When a
Compassionate Use Act defense is the subject of a pretrial hearing under Evi C § 402, the defendant need only produce
evidence sufficient to raise a reasonable doubt on that element of the defense. People v Jones (2003, 3rd Dist) 112 Cal
App 4th 341.
To meet the requirements of H & S C § 11362.5, it is a defendant's burden to show that he or she was a patient or
primary caregiver, that he or she possessed or cultivated the marijuana in question for the personal medical purposes of
a patient, and that he or she did so on the recommendation or approval of a physician. People v Tilehkooh (2003, 3rd
Dist) 113 Cal App 4th 1433.
Where defendant asserted the compassionate use of marijuana defense under H & S C § 11362.5(d), the use of Cal.
Jury Instructions Crim. No. 12.24.1 (2003 rev.) was proper because it correctly identified the facts required to establish
the defense and stated that defendant had the burden of raising a reasonable doubt concerning the facts underlying the
defense. People v Frazier (2005, 3rd Dist) 128 Cal App 4th 807.
Defendant has the burden of proof when it comes to establishing the compassionate use defense; however, to prevail
at trial he need only raise a reasonable doubt, and so long as he presents the trial court with sufficient evidence to satisfy
this standard, then the defense should go to the jury to decide. A defendant need not prove he is seriously ill to invoke
the Compassionate Use Act; the question of whether the medical use of marijuana is appropriate for a patient's illness is
a determination to be made by a physician, and the physician's determination on this medical issue is not to be second -
guessed by jurors who might not deem the patient's condition to be sufficiently "serious." People v Wright (2004, Cal
App 4th Dist) 2004 Cal App LEXIS 1450.
4. Return of Seized Marijuana
Motion to return a portion of seized marijuana was properly denied, even though the State conceded that the petitioner
was a qualified patient and even though the State had dismissed charges against him in the interests of justice, because
the amount of marijuana seized (4.5 pounds dried, 10 pounds drying, and 46 plants) confirmed that the petitioner was
not in lawful possession. H & S C § § 11473.5 and 11475 required the destruction of the marijuana, destruction did not
violate the Compassionate Use Act, and the court was without authority to return contraband to the individual from
whom it was seized. Chavez v Superior Court (2004, 4th Dist) 123 Cal App 4th 104.
000055
EXHIBIT C
Senate Sill No. 420
CHAPTER 875
An act to add Article 2.5 (commencing with Section 11362.7) to
Chapter 6 of Division 10 of the Health and Safety Code, relating to
controlled substances.
IApproved by Governor October 12. 2003. Filed
with Secretary of State October 12, 2003.1
LEGISL,\TIVF. COUNSEL'S DIGEST
SB 420, Vasconcellos. Medical marijuana.
Existing law, the Compassionate Use Act of 1996, prohibits any
physician from being punished, or denied any right or privilege, for
having recommended marijuana to a patient for medical purposes. The
act prohibits the provisions of law making unlawful the possession or
cultivation of marijuana from applying to a patient, or to 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.
This bill would require the State Department of Health Services to
establish and maintain a voluntary program for the issuance of
identification cards to qualified patients and would establish procedures
under which a qualified patient with an identification card may use
marijuana for medical purposes. The bill would specify the department's
duties in this regard, including developing related protocols and forms,
and establishing application and renewal fees for the program.
The bill would impose various duties upon county health departments
relating to the issuance of identification cards, thus creating a
state - mandated local program.
The bill would create various crimes related to the identification card
program, thus imposing a state- mandated local program.
This bill would authorize the Attorney General to set forth and clarify
details concerning possession and cultivation limits, and other
regulations, as specified. The bill would also authorize the Attorney
General to recommend modifications to the possession or cultivation
limits set forth in the bill. The bill would require the Attorney General
to develop and adopt guidelines to ensure the security and nondiversion
of marijuana grown for medical use, as specified.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that
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Ch. 875 —2—
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide and
other procedures for claims whose statewide costs exceed 51,000,000.
This bill would provide that no reimbursement is required by this act
for specified reasons.
The people of the State of California do enact as follows:
SECTION 1. (a) The Legislature finds and declares all of the
following:
(1) On November 6, 1996, the people of the State of California
enacted the Compassionate Use Act of 1996 (hereafter the act), codified
in Section 11362.5 of the Health and Safety Code, in order to allow
seriously ill residents of the state, who have the oral or written approval
or recommendation of a physician, to use marijuana for medical
purposes without fear of criminal liability under Sections 11357 and
11358 of the Health and Safety Code.
(2) However, reports from across the state have revealed problems
and uncertainties in the act that have impeded the ability of law
enforcement officers to enforce its provisions as the voters intended and,
therefore, have prevented qualified patients and designated primary
caregivers from obtaining the protections afforded by the act.
(3) Furthermore, the enactment of this law, as well as other recent
legislation dealing with pain control, demonstrates that more
information is needed to assess the number of individuals across the state
who are suffering from serious medical conditions that are not being
adequately alleviated through the use of conventional medications.
(4) In addition, the act called upon the state and the lederal
government to develop a plan for the safe and affordable distribution of
marijuana to all patients in medical need thereof.
(b) It is the intent of the legislature, therefore, to do all of the
following:
(1) Clarifv the scope of the application of the act and facilitate the
prompt identification of qualified patients and their designated primary
caregivers in order to avoid unnecessary arrest and prosecution of these
individuals and provide needed guidance to law enforcement officers.
(2) Promote uniform and consistent application of the act among the
counties within the state.
(3) Enhance the access of patients and caregivers to medical
marijuana through collective, cooperative cultivation projects.
(c) It is also the intent of the Legislature to address additional issues
that were not included within the act, and that must be resolved in order
to promote the fair and orderly implementation of the act.
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(d) The Legislature further finds and declares both of the following:
(1) A state identification card program will further the goals outlined
in this section.
(2) With respect to individuals, the identification system established
pursuant to this act must be wholly voluntary, and a patient entitled to
the protections of Section 11362.5 of the Health and Safety Code need
not possess an identification card in order to claim the protections
afforded by that section.
(e) The Legislature further finds and declares that it enacts this act
pursuant to the powers reserved to the State of California and its people
under the Tenth Amendment to the United States Constitution.
SEC. 2. Article 2.5 (commencing with Section 11362.7) is added to
Chapter 6 of Division 10 of the Health and Safety Code, to read:
Article 2.5. Medical Marijuana Program
11362.7. For purposes of this article, the following definitions shall
apply:
(a) "Attending physician" means an individual who possesses a
license in good standing to practice medicine or osteopathy issued by the
Medical Board of California or the Osteopathic Medical Board of
California and who has taken responsibility for an aspect of the medical
care, treatment, diagnosis, counseling, or referral of a patient and who
has conducted a medical examination of that patient before recording in
the patient's medical record the physician's assessment of whether the
patient has a serious medical condition and whether the medical use of
marijuana is appropriate.
(b) "Department" means the State Department of Health Services.
(e) "Person with an identification card" means an individual who is
a qualified patient who has applied for and received a valid identification
card pursuant to this article.
(d) "Primary caregiver" means the individual, designated by a
qualified patient or by a person with an identification card, who has
consistently assumed responsibility for the housing, health, or safety of
that patient or person, and may include any of the following:
(1) In any case in which a qualified patient or person with an
identification card receives medical care or supportive services, or both,
from a clinic licensed pursuant to Chapter 1 (commencing with Section
1200) of Division 2, a health care facility licensed pursuant to Chapter
2 (commencing with Section 1250) of Division 2, a residential care
facility for persons with chronic life- threatening illness licensed
pursuant to Chapter 3.01 (commencing with Section 1568.01) of
Division 2, a residential care facility for the elderly licensed pursuant to
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Ch. 875 —4—
Chapter 3.2 (commencing with Section 1569) of Division 2, a hospice,
or a home health agency licensed pursuant to Chapter 8 (commencing
with Section 1725) of Division 2, the owner or operator, or no more than
three employees who are designated by the owner or operator, of the
clinic, facility, hospice, or home health agency, if designated as a
primary caregiver by that qualified patient or person with an
identification card.
(2) An individual who has been designated as a primary caregiver by
more than one qualified patient or person with an identification card, if
every qualified patient or person with an identification card who has
designated that individual as a primary caregiver resides in the same city
or county as the primary caregiver.
(3) An individual who has been designated as a primary caregiver by
a qualified patient or person with an identification card who resides in
a city or county other than that of (lie primary caregiver, if the individual
has not been designated as a primary caregiver by any other qualified
patient or person with an identification card.
(e) A primary caregiver shall be at least 18 years of age, unless the
primary caregiver is the parent of a minor child who is a qualified patient
or a person with an identification card or the primary caregiver is a
person otherwise entitled to make medical decisions under state law
pursuant to Sections 6922, 7002, 7050, or 7120 of the Family Code.
(f) "Qualified patient" means a person who is entitled to the
protections of Section 1] 362.5, but who does not have an identification
card issued pursuant to this article.
(g) "Identification card" means a document issued by the State
Department of Health Services that document identifies a person
authorized to engage in the medical use of marijuana and the person's
designated primary caregiver, if any.
(h) "Serious medical condition" means all of the following medical
conditions:
(1) Acquired immune deficiency syndrome (AIDS).
(2) Anorexia.
(3) Arthritis.
(4) Cachexia.
(5) Cancer.
(6) Chronic pain.
(7) Glaucoma.
(8) Migraine.
(9) Persistent muscle spasms, including, but not limited to, spasms
associated with multiple sclerosis.
(10) Seizures, including, but not limited to, seizures associated with
epilepsy.
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(11) Severe nausea.
(12) Any other chronic or persistent medical symptom that either:
(A) Substantially limits the ability of the person to conduct one or
more major life activities as defined in the Americans with Disabilities
Act of 1990 (Public Law 101 -336).
(B) If not alleviated, may cause serious harm to the patient's safety
or physical or mental health.
(i) "Written documentation" means accurate reproductions of those
portions of a patient's medical records that have been created by the
attending physician, that contain the information required by paragraph
(2) of subdivision (a) of Section 11362.715, and that the patient may
submit to a county health department or the county's designee as part of
an application for an identification card.
11362.71. (a) (1) The department shall establish and maintain a
voluntary program for the issuance of identification cards to qualified
patients who satisfy the requirements of this article and voluntarily apply
to the identification card program.
(2) The department shall establish and maintain a 24 -hour, toll -free
telephone number that will enable state and local law enforcement
officers to have immediate access to information necessary to verify the
validity of an identification card issued by the department, until a
cost - effective Internet Web -based system can be developed for this
purpose.
(b) Every county health department, or the county's designee, shall
do all of the following:
(1) Provide applications upon request to individuals seeking to join
the identification card program.
(2) Receive and process completed applications in accordance with
Section 11362.72.
(3) Maintain records of identification card programs.
(4) Utilize protocols developed by the department pursuant to
paragraph (1) of subdivision (d).
(5) Issue identification cards developed by the department to
approved applicants and designated primary caregivers.
(c) The county board of supervisors may designate another
health- related governmental or nongovernmental entity or organization
to perform the functions described in subdivision (b), except for an entity
or organization that cultivates or distributes marijuana.
(d) The department shall develop all of the following:
(1) Protocols that shall be used by a county health department or the
county's designee to implement the responsibilities described in
subdivision (b), including, but not limited to, protocols to confirm the
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Ch. 875 —6—
accuracy of information contained in an application and to protect the
confidentiality of program records.
(2) Application forms that shall be issued to requesting applicants.
(3) An identification card that identifies a person authorized to
engage in the medical use of marijuana and an identification card that
identifies the person's designated primary caregiver, if any. The two
identification cards developed pursuant to this paragraph shall be easily
distinguishable from each other.
(e) No person or designated primary caregiver in possession of a valid
identification card shall be subject to arrest for possession,
transportation, delivery, or cultivation of medical marijuana in an
amount established pursuant to this article, unless there is reasonable
cause to believe that the information contained in the card is false or
falsified, the card has been obtained by means of fraud, or the person is
otherwise in violation of the provisions of this article.
(f) It shall not be necessary for a person to obtain an identification
card in order to claim the protections of Section 11362.5.
11362.715. (a) A person who seeks an identification card shall pay
the fee, as provided in Section 11362.755, and provide all of the
following to the county health department or the county's designee on
a form developed and provided by the department:
(1) The name of the person, and proof of his or her residency within
the county.
(2) Written documentation by the attending physician in the person's
medical records stating that the person has been diagnosed with a serious
medical condition and that the medical use of marijuana is appropriate.
(3) The name, office address, office telephone number, and California
medical license number of the person's attending physician.
(4) The name and the duties of the primary caregiver.
(5) A government- issued photo identification card of the person and
of the designated primary caregiver, if any. If the applicant is a person
under 18 years of' age, a certified copy of a birth certificate shall be
deemed sufficient proof of identity.
(b) If the person applying for an identification card lacks the capacity
to make medical decisions, the application may be made by the person's
legal representative, including, but not limited to, any of the following:
(1) A conservator with authority to make medical decisions.
(2) An attorney -in -fact under a durable power of attorney for health
care or surrogate decisionmaker authorized tinder another advanced
health care directive.
(3) Any other individual authorized by statutory or decisional law to
make medical decisions for the person.
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(c) The legal representative described in subdivision (b) may also
designate in the application an individual, including himself or herself,
to serve as a primary caregiver for the person, provided that the
individual meets the definition of a primary caregiver.
(d) The person or legal representative submitting the written
information and documentation described in subdivision (a) shall retain
a copy thereof.
1 1362.72. (a) Within 30 days of receipt of an application for an
identification card, a county health department or the county's designee
shall do all of the following:
(1) For purposes of processing the application, verify that the
information contained in the application is accurate. If the person is less
than 18 years of age, the county health department or its designee shall
also contact the parent with legal authority to make medical decisions,
legal guardian, or other person or entity with legal authority to make
medical decisions, to verify the information.
(2) Verify with the Medical Board of California or the Osteopathic
Medical Board of California that the attending physician has a license
in good standing to practice medicine or osteopathy in the state.
(3) Contact the attending physician by facsimile, telephone, or mail
to confirm that the medical records submitted by the patient are a true
and correct copy of those contained in the physician's office records.
When contacted by a county health department or the county's designee,
the attending physician shall confirm or deny that the contents of the
medical records are accurate.
(4) Take a photograph or otherwise obtain an electronically
transmissible image of the applicant and of the designated primary
caregiver, if any.
(5) Approve or deny the application. If an applicant who meets the
requirements of Section 11362.715 can establish that an identification
card is needed on an emergency basis, the county or its designee shall
issue a temporary identification card that shall be valid for 30 days from
the date of issuance. The county, or its designee, may extend the
temporary identification card for no more than 30 days at a time, so long
as the applicant continues to meet the requirements of this paragraph.
(b) If the county health department or the county's designee approves
the application, it shall, within 24 hours, or by the end of the next
working day of approving the application, electronically transmit the
following information to the department:
(1) A unique user identification number of the applicant.
(2) The date of expiration of the identification card.
(3) The name and telephone number of the county health department
or the county's designee that has approved the application.
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Ch. 875 —8—
(c) The county health department or the county's designee shall issue
an identification card to the applicant and to his or her designated
primary caregiver, if any, within five working days of approving the
application.
(d) In any case involving an incomplete application, the applicant
shall assume responsibility for rectifying the deficiency. The county
shall have 14 days from the receipt of information from the applicant
pursuant to this subdivision to approve or deny the application.
11362.735. (a) An identification card issued by the county health
department shall be serially numbered and shall contain all of the
following.
(1) A unique user identification number of the cardholder.
(2) The date of expiration of the identification card.
(3) The name and telephone number of the county health department
or the county's designee that has approved the application.
(4) A 24 -hour, toll -free telephone number, to be maintained by the
department, that will enable state and local law enfomemem officers to
have immediate access to information necessary to verify the validity of
the card.
(5) Photo identification of the cardholder.
(b) A separate identification card shall be issued to the person's
designated primary caregiver, if any, and shall include a photo
identification of the caregiver.
11362.74. (a) The county health department or the county's
designee may deny an application only for any of the following reasons:
(1) The applicant did not provide the information required by Section
11362.715, and upon notice of the deficiency pursuant to subdivision (d)
of Section 11362.72, did not provide the information within 30 days.
(2) The county health department or the county's designee
determines that the information provided was false.
(3) The applicant does not meet the criteria set forth in this article.
(b) Any person whose application has been denied pursuant to
subdivision (a) may not reapply for six months from the date of denial
unless otherwise authorized by the county health department or the
county's designee or by a court of competent jurisdiction.
(c) Any person whose application has been denied pursuant to
subdivision (a) may appeal that decision to the department. The county
health department or the county's designee shall make available a
telephone number or address to which the denied applicant can direct an
appeal.
11362.745. (a) An identification card shall be valid for a period of
one year.
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Ch. 875
(b) Upon annual renewal of an identification card, the county health
department or its designee shall verify all new information and may
verify any other information that has not changed.
(c) The county health department or the county's designee shall
transmit its determination of approval or denial of a renewal to the
department.
11362.755. (a) The department shall establish application and
renewal fees for persons seeking to obtain or renew identification cards
that are sufficient to cover the expenses incurred by the department,
including the startup cost, the cost of reduced fees for Medi -Cal
beneficiaries in accordance with subdivision (b), the cost of identifying
and developing a cost - effective Internet Web -based system, and the cost
of maintaining the 24 -hour toll -free telephone number. Each county
health department or the county's designee may charge an additional fee
for all costs incurred by the county or the county's designee for
administering the program pursuant to this article.
(b) Upon satisfactory proof of participation and eligibility in the
Medi -Cal program, a Medi -Cal beneficiary shall receive a 50 percent
reduction in the fees established pursuant to this section.
11362.76. (a) A person who possesses an identification card shall:
(1) Within seven days, notify the county health department or the
county's designee of any change in the person's attending physician or
designated primary caregiver, if any.
(2) Annually submit to the county health department or the county's
designee the following:
(A) Updated written documentation of the person's serious medical
condition.
(B) The name and duties of the person's designated primary
caregiver, if any, for the forthcoming year.
(b) If a person who possesses an identification card fails to comply
with this section, the card shall be deemed expired. If an identification
card expires, the identification card of any designated primary caregiver
of the person shall also expire.
(c) If the designated primary caregiver has been changed, the
previous primary caregiver shall return his or her identification card to
the department or to the county health department or the county's
designee.
(d) If the owner or operator or an employee of the owner or operator
of a provider has been designated as a primary caregiver pursuant to
paragraph (1) of subdivision (d) of Section 11362.7, of the qualified
patient or person with an identification card, the owner or operator shall
notify the county health department or the county's designee, pursuant
93
• •
Ch. 875 _10—
to Section 11362.715, if a change in the designated primary caregiver has
occurred.
11362.765. (a) Subject to the requirements of this article, the
individuals specified in subdivision (b) shall not be subject, on that sole
basis, to criminal liability under Section 11357, 11358, 11359, 11360,
11366, 11366.5, or 11570. However, nothing in this section shall
authorize the individual to smoke or otherwise consume marijuana
unless otherwise authorized by this article, nor shall anything in this
section authorize any individual or group to cultivate or distribute
marijuana for profit.
(b) Subdivision (a) shall apply to all of the following:
(1) A qualified patient or a person with an identification card who
transports or processes marijuana for his or her own personal medical
use.
(2) A designated primary caregiver who transports, processes,
administers, delivers, or gives away marijuana for medical purposes, in
amounts not exceeding those established in subdivision (a) of Section
11362.77, only to the qualified patient of the primary caregiver, or to the
person with an identification card who has designated the individual as
a primary caregiver.
(3) Any individual who provides assistance to a qualified patient or
a person with an identification card, or his or her designated primary
caregiver, in administering medical marijuana to the qualified patient or
person or acquiring the skills necessary to cultivate or administer
marijuana for medical purposes to the qualified patient or person.
(c) A primary caregiver who receives compensation for actual
expenses, including reasonable compensation incurred for services
provided to an eligible qualified patient or person with an identification
card to enable that person to use marijuana under this article, or for
payment for out -of- pocket expenses incurred in providing those
services, or both, shall not, on the sole basis of that fact, be subject to
prosecution or punishment under Section 11359 or 11360.
11362.77. (a) A qualified patient or primary caregiver may possess
no more than eight ounces of dried marijuana per qualified patient. In
addition, a qualified patient or primary caregiver may also maintain no
more than six mature or 12 irnmaturc marijuana plants per qualified
patient.
(b) If a qualified patient or primary caregiver has a doctor's
recommendation that this quantity does not meet the qualified patient's
medical needs, the qualified patient or primary caregiver may possess an
amount of marijuana consistent with the patient's needs.
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11 — Ch. 875
(c) Counties and cities may retain or enact medical marijuana
guidelines allowing qualified patients or primary caregivers to exceed
the state limits set forth in subdivision (a).
(d) Only the dried mature processed flowers of female cannabis plant
or the plant conversion shall be considered when determining allowable
quantities of marijuana under this section.
(e) The Attorney General may recommend modifications to the
possession or cultivation limits set forth in this section. These
recommendations, if any, shall be made to the Legislature no later than
December 1, 2005, and may be made only after public comment and
consultation with interested organizations, including, but not limited to,
patients, health care professionals, researchers, law enforcement, and
local governments. Any recommended modification shall be consistent
with the intent of this article and shall be based on currently available
scientific research.
(f) A qualified patient or a person holding a valid identification card,
or the designated primary caregiver of that qualified patient or person,
may possess amounts of marijuana consistent with this article.
11362.775. Qualified patients, persons with valid identification
cards, and the designated primary caregivers of qualified patients and
persons with identification cards, who associate within the State of
California in order collectively or cooperatively to cultivate marijuana
for medical purposes, shall not solely on the basis of that fact be subject
to state criminal sanctions under Section 11357, 11358, 11359, 11360,
1 1366, 11366.5, or 11570.
11362.78. A state or local law enforcement agency or officer shall
not refuse to accept an identification card issued by the department
unless the state or local law enforcement agency or officer has reasonable
cause to believe that the information contained in the card is false or
fraudulent, or the card is being used fraudulently.
11362.785. (a) Nothing in this article shall require any
accornmodation of any medical use of marijuana on the property or
premises of any place of employment or during the hours of employment
or on the property or premises of any jail, correctional facility, or other
type of penal institution in which prisoners reside or persons under arrest
are detained.
(b) Notwithstanding subdivision (a), a person shall not be prohibited
or prevented from obtaining and submitting the written information and
documentation necessary to apply for an identification card on the basis
that the person is incarcerated in a jail, correctional facility, or other
penal institution in which prisoners reside or persons under arrest are
detained.
93
Ch. 875 —12—
(c) Nothing in this article shall prohibit a jail, correctional facility, or
other penal institution in which prisoners reside or persons under arrest
are detained, from permitting a prisoner or a person under arrest who has
an identification card, to use marijuana for medical purposes under
circumstances that will not endanger the health or safety of other
prisoners or the security of the facility.
(d) Nothing in this article shall require a governmental, private, or
any other health insurance provider or health care service plan to be
liable for any claim for reimbursement for the medical use of marijuana.
11362.79. Nothing in this article shall authorize a qualified patient
or person with an identification card to engage in the smoking of medical
marijuana under any of the following circumstances:
(a) In any place where smoking is prohibited by law.
(b) In or within 1,000 feet of the grounds of a school, recreation
center, or youth center, unless the medical use occur% within a residence.
(c) On a schoolbus.
(d) While in a motor vehicle that is being operated.
(e) While operating a boat.
11362.795. (a) (1) Any criminal defendant who is eligible to use
marijuana pursuant to Section 11362.5 may request that the court
confirm that he or she is allowed to use medical marijuana while he or
she is on probation or released on bail.
(2) The court's decision and the reasons for the decision shall be
stated on the record and an entry stating those reasons shall be made in
the minutes of the court.
(3) During the period of probation or release on bail, if a physician
recommends that the probationer or defendant use medical marijuana,
the probationer or defendant may request a modification of the
conditions of probation or bail to authorize the use of medical marijuana.
(4) The court's consideration of the modification request authorized
by this subdivision shall comply with the requirements of this section.
(b) (1) Any person who is to be released on parole from a jail, state
prison, school, road camp, or other state or local institution of
confinement and who is eligible to use medical marijuana pursuant to
Section 11362.5 may request that he or she be allowed to use medical
marijuana during the period he or she is released on parole. A parolee's
written conditions of parole shall reflect whether or not a request for a
modification of the conditions of his or her parole to use medical
marijuana was made, and whether the request was granted or denied.
(2) During the period of the parole, where a physician recommends
that the parolee use medical marijuana, the parolee may request a
modification of the conditions of the parole to authorize the use of
medical marijuana.
93
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13— Ch. 875
(3) Any parolee whose request to use medical marijuana while on
parole was denied may pursue an administrative appeal of the decision.
Any decision on the appeal shall be in writing and shall reflect the
reasons for the decision.
(4) The administrative consideration of the modification request
authorized by this subdivision shall comply with the requirements of this
section.
11362.8. No professional licensing board may impose a civil
penalty or take other disciplinary action against a licensee based solely
on the fact that the licensee has performed acts that are necessary or
appropriate to carry out the licensee's role as a designated primary
caregiver to a person who is a qualified patient or who possesses a lawful
identification card issued pursuant to Section 11362.72. However, this
section shall not apply to acts performed by a physician relating to the
discussion or recommendation of the medical use of marijuana to a
patient. These discussions or recommendations, or both, shall be
governed by Section 11362.5.
11362.81. (a) A person specified in subdivision (b) shall be subject
to the following penalties:
(1) For the first offense, imprisonment in the county jail for no more
than six months or a fine not to exceed one thousand dollars ($1,000),
or both.
(2) For a second or subsequent offense, imprisonment in the county
jail for no more than one year, or a fine not to exceed one thousand dollars
($1,000), or both.
(b) Subdivision (a) applies to any of the following:
(1) A person who fraudulently represents a medical condition or
fraudulently provides any material misinformation to a physician,
county health department or the county's designee, or state or local law
enforcement agency or officer, for the purpose of falsely obtaining an
identification card.
(2) A person who steals or fraudulently uses any person's
identification card in order to acquire, possess, cultivate, transport, use,
produce, or distribute marijuana.
(3) A person who counterfeits, tampers with, or fraudulently
produces an identification card.
(4) A person who breaches the confidentiality requirements of this
article to information provided to, or contained in the records of, the
department or of a county health department or the county's designee
pertaining to an identification card program.
(c) In addition to the penalties prescribed in subdivision (a), any
person described in subdivision (b) may be precluded from attempting
93
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Ch. 875 —14
to obtain, or obtaining or using, an identification card for a period of up
to six months at the discretion of the court.
(d) In addition to the requirements of this article, the Attorney
General shall develop and adopt appropriate guidelines to ensure the
security and nondiversion of marijuana grown for medical use by
patients qualified under the Compassionate Use Act of 1996.
11362.82. If any section, subdivision, sentence, clause, phrase, or
portion of this article is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, that portion shall be deemed a
separate, distinct, and independent provision, and that holding shall not
affect the validity of the remaining portion thereof.
11362.83. Nothing in this article shall prevent a city or other local
governing body from adopting and enforcing laws consistent with this
article.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for certain
costs that may be incurred by a local agency or school district because
in that regard this act creates a new crime or infraction, eliminates a
crime or infraction, or changes the penalty for a crime or infraction.
within the meaning of Section 17556 of the Government Code, or
changes the definition of a crime within the meaning of Section 6 of
Article XIII B of the California Constitution.
In addition, no reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for other costs
mandated by the state because this act includes additional revenue that
is specifically intended to fund the costs of' the state mandate in an
amount sufficient to fund the cost of the state mandate, within the
meaning of Section 17556 of the Government Code.
U
93
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EXHIBIT D
LEXSEE 2005 U.S. LEXIS 4656
ALBERTO R. GONZALES, ATTORNEY GENERAL, ET AL., PETITIONERS v.
ANGEL MCCLARY RAICH ET AL.
No. 03 -1454
SUPREME COURT OF THE UNITED STATES
2005 U.S. LEXIS 4656
November 29, 2004, Argued
June 6, 2005, Decided
NOTICE: [' I ] This preliminary LEXIS version is unedited and subject to revision.
The LEXIS pagination of this document is subject to change pending release of the final published version.
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT.
DISPOSITION: 352 F.3d 1222, vacated and remanded.
SYLLABUS: California's Compassionate Use Act authorizes limited marijuana use for medicinal purposes.
Respondents Raich and Monson are California residents who both use doctor - recommended marijuana for serious
medical conditions. After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of
Monson's cannabis plants, respondents brought this action seeking injunctive and declaratory relief prohibiting the
enforcement of the federal Controlled Substances Act (CSA) to the extent it prevents them from possessing, obtaining,
or manufacturing cannabis for their personal medical use. Respondents claim that enforcing [ "2] the CSA against them
would violate the Commerce Clause and other constitutional provisions. The District Court denied respondents' motion
for a preliminary injunction, but the Ninth Circuit reversed, finding that they had demonstrated a strong likelihood of
success on the claim that the CSA is an unconstitutional exercise of Congress' Commerce Clause authority as applied to
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. Tlie court relied heavily on United States v. Lopez, 514 U.S.
549, and United Stares v. Morrison, 529 U.S. 598, to hold that this separate class of purely local activities was beyond
the reach of federal power.
Held: Congress' Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in
compliance with California law. Pp. 6 -31.
(a) For the purposes of consolidating various drug laws into a comprehensive statute, providing meaningful regulation
over legitimate sources of drugs to prevent diversion into illegal channels, and strengthening law ['31 enforcement
tools against international and interstate drug trafficking, Congress enacted the Comprehensive Drug Abuse Prevention
and Control Act of 1970, Title II of which is the CSA. To effectuate the statutory goals, Congress devised a closed
regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except as
authorized by the CSA. 21 U.S.C. § § 841(a)(] ), 844(a). All controlled substances are classified into five schedules, §
812, based on their accepted medical uses, their potential for abuse, and their psychological and physical effects on the
body, § § 811, 812. Marijuana is classified as a Schedule 1 substance, § 812(c), based on its high potential for abuse,
no accepted medical use, and no accepted safety for use in medically supervised treatment, § 812(b)(I ). This
CADocumcnts and Sell ings\Poner- S \Dcsklop \Gonzales v. Raich doc
\111-111 �1
Page 2
2005 U.S. LEXIS 4656, *
classification renders the manufacture, distribution, or possession of marijuana a criminal offense. § § 841(a)() ),
844(a). Pp. 6 -11.
(b) Congress' power to regulate purely local activities that are part of an economic "class of activities" that have a
substantial effect on interstate commerce is firmly established. See, e.g., Perez v. United States, 402 U.S. 146, 151. [ *41
If Congress decides that the "'total incidence "' of a practice poses a threat to a national market, it may regulate the entire
class, See, e.g., id., at 154 -155. Of particular relevance here is Wickard v. Filburn, 317 U.S. 111, 127 -128, where, in
rejecting the appellee farmer's contention that Congress' admitted power to regulate the production of wheat for
commerce did not authorize federal regulation of wheat production intended wholly for the appellee's own consumption,
the Court established that Congress can regulate purely intrastate activity that is not itself "commercial," i.e., not
produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the
interstate market in that commodity. The similarities between this case and Wickard are striking. In both cases, the
regulation is squarely within Congress' commerce power because production of the commodity meant for home
consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that
commodity. In assessing the scope of Congress' Commerce Clause authority, the Court need not determine [ *51
whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether
a "rational basis" exists for so concluding. E.g., Lopez, 514 U.S., at 557. Given the enforcement difficulties that attend
distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns
about diversion into illicit channels, the Court has no difficulty concluding that Congress had a rational basis for
believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in
the CSA. Pp. 12 -20.
(c) Respondents' heavy reliance on Lopez and Morrison overlooks the larger context of modern -era Commerce Clause
jurisprudence preserved by those cases, while also reading those cases far too broadly. The statutory challenges at issue
there were markedly different from the challenge here. Respondents ask the Court to excise individual applications of a
concededly valid comprehensive statutory scheme. In contrast, in both Lopez and Morrison, the parties asserted that a
particular statute or provision fell outside Congress' [ *61 commerce power in its entirety. This distinction is pivotal for
the Court has often reiterated that "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." Perez, 402 U.S., at 154.
Moreover, the Court emphasized that the laws at issue in Lopez and Morrison had nothing to do with "commerce" or
any sort of economic enterprise. See Lopez, 514 U.S., at 561; Morrison, 529 U.S., at 610. In contrast, the CSA regulates
quintessentially economic activities: the production, distribution, and consumption of commodities for which there is an
established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of
commerce is a rational means of regulating commerce in that product. The Ninth Circuit cast doubt on the CSA's
constitutionality by isolating a distinct class of activities that it held to be beyond the reach of federal power: the
intrastate, noncommercial cultivation, possession, and use of marijuana for personal medical purposes on the advice of a
physician [ *71 and in accordance with state law. However, Congress clearly acted rationally in determining that this
subdivided class of activities is an essential part of the larger regulatory scheme. The case comes down to the claim that
a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal
regulation. Given the CSA's findings and the undisputed magnitude of the commercial market for marijuana, Wickard
and its progeny foreclose that claim. Pp. 20 -30.
352 F.3d 1222, vacated and remanded.
JUDGES: STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and
BREYER, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment. O'CONNOR, J., filed a dissenting
opinion, in which REHNQUIST, C. J., and THOMAS, J., joined as to all but Part 111. THOMAS, J., filed a dissenting
opinion.
OPINIONBY: STEVENS
OPINION:
JUSTICE STEVENS delivered the opinion of the Court.
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California is one of at least nine States that authorize the use of marijuana for medicinal purposes. nl The question
presented in this case is whether the power vested in Congress by Article I, § 8, of the Constitution "to make all Laws
[ *8] which shall be necessary and proper for carrying into Execution" its authority to "regulate Commerce with foreign
Nations, and among the several States" includes the power to prohibit the local cultivation and use of marijuana in
compliance with California law.
nl See Alaska Stat. § § 11.71.090, 17.37.010- 17.37.080 (Lexis 2004); Colo. Const., Art. XVIII, § 14,
Colo, Rev, Stat. § 18- 18406.3 (Lexis 2004); Haw. Rev. Stat. § § 329 -121 to 329 -128 (2004 Cum. Supp.); Me.
Rev. Stat. Ann., Tit. 22, § 2383 -B(5) (West 2004); Nev. Const., Art. 4, § 38, Nev. Rev. Stat. § § 453A.010-
453A.810 (2003); Ore. Rev. Stat. § § 475.300- 475.346 (2003); Vt. Stat. Ann., Tit. 18, § § 447244744 (Supp.
2004); Wash. Rev. Code § § 69.51.010- 69.51.080 (2004); see also Ariz. Rev. Stat. Ann. § 13- 3412.01 (West
Supp. 2004) (voter initiative permitting physicians to prescribe Schedule I substances for medical purposes that
was purportedly repealed in 1997, but the repeal was rejected by voters in 1998). In November 2004, Montana
voters approved Initiative 148, adding to the number of States authorizing the use of marijuana for medical
purposes.
[ *9j
California has been a pioneer in the regulation of marijuana. In 1913, California was one of the first States to
prohibit the sale and possession of marijuana, n2 and at the end of the century, California became the first State to
authorize limited use of the drug for medicinal purposes. In 1996, California voters passed Proposition 215, now
codified as the Compassionate Use Act of 1996. n3 The proposition was designed to ensure that "seriously ill" residents
of the State have access to marijuana for medical purposes, and to encourage Federal and State Governments to take
steps towards ensuring the safe and affordable distribution of the drug to patients in need. n4 The Act creates an
exemption from criminal prosecution for physicians, n5 as well as for patients and primary caregivers who possess or
cultivate marijuana for medicinal purposes with the recommendation or approval of a physician. n6 A "primary
caregiver" is a person who has consistently assumed responsibility for the housing, health, or safety of the patient. n7
n2 1913 Cal. Stats. ch. 324, § 8a; see also Gieringer, The Origins of Cannabis Prohibition in California,
Contemporary Drug Problems, 21 -23 (rev. 2005). [*101
n3 Cal. Health & Safety Code Ann. § 11362.5 (West Supp. 2005). The California Legislature recently
enacted additional legislation supplementing the Compassionate Use Act. § § 11362.7-11362.9 (West Supp.
2005).
n4 "The people of the State of California hereby find and declare that the purposes of the Compassionate
Use Act of 1996 are as follows:
"(A) To 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.
"(B) To 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.
"(C) To encourage the federal and state governments to implement a plan to provide for the safe and
affordable distribution of marijuana to all patients in medical need of marijuana." § 1 I362.5(b)(1) (West Supp.
2005). [ *11]
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n5 "Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any
right or privilege, for having recommended marijuana to a patient for medical purposes." § 11362.5(c) (West
Supp. 2005).
n6 "Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of
marijuana, shall not apply to a patient, or to 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." § I I362.5(d) (West Supp. 2005).
n7§ 11362.5(e) (West Supp. 2005).
Respondents Angel Raich and Diane Monson are California residents who suffer from a variety of serious medical
conditions and have sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use
Act. They are being treated by licensed, board - certified family practitioners, who have concluded, after prescribing a
host of conventional medicines to treat respondents' conditions and to alleviate their associated symptoms, that [• 121
marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a
medication for several years pursuant to their doctors' recommendation, and both rely heavily on cannabis to function
on a daily basis. Indeed, Raich's physician believes that forgoing cannabis treatments would certainly cause Raich
excruciating pain and could very well prove fatal.
Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and
using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers,
litigating as "John Does," to provide her with locally grown marijuana at no charge. These caregivers also process the
cannabis into hashish or keif, and Raich herself processes some of the marijuana into oils, balms, and foods for
consumption.
On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA)
came to Monson's home. After a thorough investigation, the county officials concluded that her use of marijuana was
entirely lawful as a matter of California law. Nevertheless, after a 3 -hour standoff, the federal agents ['13] seized and
destroyed all six of her cannabis plants.
Respondents thereafter brought this action against the Attorney General of the United States and the head of the
DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act
(CSA), 84 Stat. 1242, 21 U.S.C. § 801 et seq., to the extent it prevents them from possessing, obtaining, or
manufacturing cannabis for their personal medical use. In their complaint and supporting affidavits, Raich and Monson
described the severity of their afflictions, their repeatedly futile attempts to obtain relief with conventional medications,
and the opinions of their doctors concerning their need to use marijuana. Respondents claimed that enforcing the CSA
against them would violate the Commerce Clause, the Due Process Clause of the Fifth Amendment, the Ninth and
Tenth Amendments of the Constitution, and the doctrine of medical necessity.
The District Court denied respondents' motion for a preliminary injunction. Raich v. Ashcroft, 248 F. Supp. 2d 918
(ND Cal. 2003). Although the court found that the federal enforcement interests "waned" when compared [' 14] to the
harm that California residents would suffer if denied access to medically necessary marijuana, it concluded that
respondents could not demonstrate a likelihood of success on the merits of their legal claims. Id., at 931.
A divided panel of the Court of Appeals for the Ninth Circuit reversed and ordered the District Court to enter a
preliminary injunction. n8 Raich v. Ashcroft, 352 F.3d 1222 (2003). The court found that respondents had
"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." Id., at 1227. "The Court of Appeals distinguished prior Circuit cases
upholding the CSA in the face of Commerce Clause challenges by focusing on what it deemed to be the "separate and
distinct class of activities" at issue in this case: "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." Id., at 1228.
The court found the latter class of activities "different in kind from drug trafficking" [' 151 because interposing a
physician's recommendation raises different health and safety concerns, and because "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." Ibid.
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n8 On remand, the District Court entered a preliminary injunction enjoining petitioners "'from arresting or
prosecuting Plaintiffs Angel McClary Raich and Diane Monson, seizing their medical cannabis, forfeiting their
property, or seeking civil or administrative sanctions against them with respect to the intrastate, non - commercial
cultivation, possession, use, and obtaining without charge of cannabis for personal medical purposes on the
advice of a physician and in accordance with state law, and which is not used for distribution, sale, or
exchange. "' Brief for Petitioners 9.
The majority placed heavy reliance on our decisions in United States v. Lopez, 514 U.S. 549 (1995), [' 161 and
United States v. Morrison, 529 U.S. 598 (2000), as interpreted by recent Circuit precedent, to hold that this separate
class of purely local activities was beyond the reach of federal power. In contrast, the dissenting judge concluded that
the CSA, as applied to respondents, was clearly valid under Lopez and Morrison; moreover, he thought it "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." 352 F.3d
at 1235 (Beam, J., dissenting) (citation omitted).
The obvious importance of the case prompted our grant of certiorari. 542 U.S. 936 (2004). The case is made
difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding
to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is
wise to enforce the statute in these circumstances; rather, it is whether Congress' power to regulate interstate markets for
medicinal substances [• 171 encompasses the portions of those markets that are supplied with drugs produced and
consumed locally. Well- settled law controls our answer. The CSA is a valid exercise of federal power, even as applied
to the troubling facts of this case. We accordingly vacate the judgment of the Court of Appeals.
11
Shortly after taking office in 1969, President Nixon declared a national "war on drugs." n9 As the first campaign of
that war, Congress set out to enact legislation that would consolidate various drug laws on the books into a
comprehensive statute, provide meaningful regulation over legitimate sources of drugs to prevent diversion into illegal
channels, and strengthen law enforcement tools against the traffic in illicit drugs. n10 That effort culminated in the
passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236.
n9 See D. Musto & P. Korsmeyer, The Quest for Drug Control 60 (2002) (hereinafter Musto & Korsmeyer).
n10 H. R. Rep, No. 91 -1444, pt. 2, p. 22 (1970) (hereinafter H. R. Rep.); 26 Congressional Quarterly
Almanac 531 (1970) (hereinafter Almanac); Musto & Korsmeyer 56 -57.
•18
This was not, however, Congress' first attempt to regulate the national market in drugs. Rather, as early as 1906
Congress enacted federal legislation imposing labeling regulations on medications and prohibiting the manufacture or
shipment of any adulterated or misbranded drug traveling in interstate commerce. n I I Aside from these labeling
restrictions, most domestic drug regulations prior to 1970 generally came in the guise of revenue laws, with the
Department of the Treasury serving as the Federal Government's primary enforcer. nl2 For example, the primary drug
control law, before being repealed by the passage of the CSA, was the Harrison Narcotics Act of 1914, 38 Stat. 785
(repealed 1970). The Harrison Act sought to exert control over the possession and sale of narcotics, specifically cocaine
and opiates, by requiring producers, distributors, and purchasers to register with the Federal Government, by assessing
taxes against parties so registered, and by regulating the issuance of prescriptions. n13
n 1 1 Pure Food and Drug Act of 1906, ch. 3915, 34 Stat. 768, repealed by Act of June 25, 1938, ch. 675, §
902(a), 52 Stat. 1059. ["191
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n12 See United States Y. Doremus, 249 U.S. 86 (1919); Leary v. United States, 395 U.S. 6, 14 -16 (1969).
n 13 See Doremus, 249 U.S., at 90 -93.
Marijuana itself was not significantly regulated by the Federal Government until 1937 when accounts of
marijuana's addictive qualities and physiological effects, paired with dissatisfaction with enforcement efforts at state
and local levels, prompted Congress to pass the Marihuana Tax Act, Pub. L. 75 -238, 50 Stat. 551 (repealed 1970). n14
Like the Harrison Act, the Marihuana "Tax Act did not outlaw the possession or sale of marijuana outright. Rather, it
imposed registration and reporting requirements for all individuals importing, producing, selling, or dealing in
marijuana, and required the payment of annual taxes in addition to transfer taxes whenever the drug changed hands, n 15
Moreover, doctors wishing to prescribe marijuana for medical purposes were required to comply with rather
burdensome administrative requirements. nl6 Noncompliance exposed traffickers to severe federal penalties, whereas
['20] compliance would often subject them to prosecution under state law, n17 Thus, while the Marihuana Tax Act did
not declare the drug illegal per se, the onerous administrative requirements, the prohibitively expensive taxes, and the
risks attendant on compliance practically curtailed the marijuana trade.
n14 R. Bonnie & C. Whitebread, The Marijuana Conviction 154 -174 (1999); L. Grinspoon & J. Bakalar,
Marihuana, the Forbidden Medicine 7 -8 (rev. ed. 1997) (hereinafter Grinspoon & Bakalar). Although this was
the Federal Government's first attempt to regulate the marijuana trade, by this time all States had in place some
form of legislation regulating the sale, use, or possession of marijuana. R. Isralowitz, Drug Use, Policy, and
Management 134 (2d ed. 2002).
n15 Leary, 395 U.S., at 14 -16.
n16 Grinspoon & Bakalar 8.
n17 Leary, 395 U.S., at 16 -18.
Then in 1970, after declaration of the national "war on drugs," federal drug policy underwent a significant
transformation. ['21 ] A number of noteworthy events precipitated this policy shift. First, in Leary v. United States,
395 U.S. 6 (1969), this Court held certain provisions of the Marihuana Tax Act and other narcotics legislation
unconstitutional. Second, at the end of his term, President Johnson fundamentally reorganized the federal drug control
agencies. The Bureau of Narcotics, then housed in the Department of Treasury, merged with the Bureau of Drug Abuse
Control, then housed in the Department of Health, Education, and Welfare (HEW), to create the Bureau of Narcotics
and Dangerous Drugs, currently housed in the Department of Justice. n18 Finally, prompted by a perceived need to
consolidate the growing number of piecemeal drug laws and to enhance federal drug enforcement powers, Congress
enacted the Comprehensive Drug Abuse Prevention and Control Act. n19
nl8 Musto & Korsmeyer 32 -35; 26 Almanac 533. In 1973, the Bureau of Narcotics and Dangerous Drugs
became the Drug Enforcement Administration (DEA). See Reorg. Plan No. 2 of 1973, § I, 28 CFR § 0.100
(1973).
n19 The Comprehensive Drug Abuse Prevention and Control Act of 1970 consists of three titles. Title I
relates to the prevention and treatment of narcotic addicts through HEW (now the Department of Health and
Iluman Services). 84 Stat. 1238. Title 11, as discussed in more detail above, addresses drug control and
enforcement as administered by the Attorney General and the DEA. Id., at 1242. Title III concerns the import
and export of controlled substances. Id., at 1285.
'22
Title Il of that Act, the CSA, repealed most of the earlier antidrug laws in favor of a comprehensive regime to
combat the international and interstate traffic in illicit drugs. The main objectives of the CSA were to conquer drug
abuse and to control the legitimate and illegitimate traffic in controlled substances, n20 Congress was particularly
concerned with the need to prevent the diversion of drugs from legitimate to illicit channels. n21
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n20 In particular, Congress made the following findings:
"(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." 21 U.S.C. § § 801(1) -(6). [ *231
n21 See United States v. Moore, 423 U.S. 122, 135 (1975); see also H. R. Rep., at 22.
To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture,
distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U.S.C. § §
841(a)(1), 844(a). The CSA categorizes all controlled substances into five schedules. § 812. The drugs are grouped
together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on
the body. § § 811, 812. Each schedule is associated with a distinct set of controls regarding the manufacture,
distribution, and use of the substances listed therein. § § 821 -830. The CSA and its implementing regulations set forth
strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping.
/bid. 21 CFR § 1301 et seq. (2004).
In enacting the CSA, Congress classified marijuana as a Schedule 1 drug. 21 U.S.C. § 812(c). This preliminary
[ *241 classification was based, in part, on the recommendation of the Assistant Secretary of HEW "that marihuana be
retained within schedule 1 at least until the completion of certain studies now underway." n22 Schedule 1 drugs are
categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any
accepted safety for use in medically supervised treatment. § 812(b)(I). These three factors, in varying gradations, are
also used to categorize drugs in the other four schedules. For example, Schedule 11 substances also have a high potential
for abuse which may lead to severe psychological or physical dependence, but unlike Schedule I drugs, they have a
currently accepted medical use. § 812(b)(2). By classifying marijuana as a Schedule I drug, as opposed to listing it on a
lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole
exception being use of the drug as part of a Food and Drug Administration pre - approved research study. § § 823(f),
841(a)(1), 844(a); see also United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 490 (2001).
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n22 H. R. Rep., at 61 (quoting letter from Roger E. Egeberg, M. D. to Hon. Harley O. Staggers (Aug. 14,
1970)).
1'251
The CSA provides for the periodic updating of schedules and delegates authority to the Attorney General, after
consultation with the Secretary of Health and Human Services, to add, remove, or transfer substances to, from, or
between schedules. § 81 1. Despite considerable efforts to reschedule marijuana, it remains a Schedule I drug. n23
n23 Starting in 1972, the National Organization for the Reform of Marijuana Laws (NORML) began its
campaign to reclassify marijuana. Grinspoon & Bakalar 13 -17. After some fleeting success in 1988 when an
Administrative Law Judge (ALJ) declared that the DEA would be acting in an "unreasonable, arbitrary, and
capricious" manner if it continued to deny marijuana access to seriously ill patients, and concluded that it should
be reclassified as a Schedule IIl substance, Grinspoon v. DEA, 828 F.2d 881, 883 -884 (CAI 1987), the
campaign has proved unsuccessful. The DEA Administrator did not endorse the ALJ's findings, 54 Fed. Reg.
53767 (1989), and since that time has routinely denied petitions to reschedule the drug, most recently in 2001.
66 Fed. Reg. 20038 (2001). The Court of Appeals for the District of Columbia Circuit has reviewed the petition
to reschedule marijuana on five separate occasions over the course of 30 years, ultimately upholding the
Administrator's final order. See Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1133 (1994).
'261
111
Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse
Prevention and Control Act, was well within Congress' commerce power. Brief for Respondents 22, 38. Nor do they
contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority.
Rather, respondents' challenge is actually quite limited; they argue that the CSA's categorical prohibition of the
manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for
medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause.
In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in
isolation. As charted in considerable detail in United Slates v. Lopez, our understanding of the reach of the Commerce
Clause, as well as Congress' assertion of authority thereunder, has evolved over time. n24 The Commerce Clause
emerged as the Framers' response to the central problem giving rise to the Constitution itself. the absence of any federal
commerce power under the Articles of Confederation. n25 For the first ['271 century of our history, the primary use of
the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. n26 Then, in
response to rapid industrial development and an increasingly interdependent national economy, Congress "ushered in a
new era of federal regulation under the commerce power," beginning with the enactment of the Interstate Commerce
Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U.S.C. § 2 et seq. n27
n24 United States v. Lopez, 514 U.S. 549, 552 -558 (1995); id., at 568 -574 (KENNEDY, J., concurring); id.,
at 604 -607 (SOUTER, J., dissenting).
n25 See Gibbons v. Ogden, 9 Wheat. 1, 224 (1824) (opinion of Johnson, J.); Stern, That Commerce Which
Concerns More States Than One, 47 Harv. L. Rev. 1335, 1337, 1340 -1341 (1934); G. Gunther, Constitutional
Law 127 (9th ed. 1975).
n26 See Lopez, 514 U.S., at 553 -554; id., at 568 -569 (KENNEDY, J., concurring); see also Granholm v.
Heald, 544 U.S. _, _, (2005) (slip op., at 8 -9). 1 *28]
n27 Lopez, 514 U.S., at 554; see also Wickard v. Filburn, 317 U.S. 1 11, 121 (1942) ( "It was not until 1887,
with the enactment of the Interstate Commerce Act, that the interstate commerce power began to exert positive
influence in American law and life. This first important federal resort to the commerce power was followed in
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1890 by the Sherman Anti -Trust Act and, thereafter, mainly after 1903, by many others. These statutes ushered
in new phases of adjudication, which required the Court to approach the interpretation of the Commerce Clause
in the light of an actual exercise by Congress of its power thereunder" (footnotes omitted)).
Cases decided during that "new era," which now spans more than a century, have identified three general categories
of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the
channels of interstate commerce. Perez v. United Stales, 402 U.S. 146, 150 (1971). Second, Congress has authority to
regulate and protect the instrumentalities of interstate commerce, [ *29] and persons or things in interstate commerce.
Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). Only the third category is implicated in the case at hand.
Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic
"class of activities" that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U.S., at 151; Wickard v.
Filburn, 317 U.S. 111, 128 -129 (1942). As we stated in Wickard, "even if appellee's 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. We have never required Congress to legislate with scientific
exactitude. When Congress decides that the "'total incidence "' of a practice poses a threat to a national market, it may
regulate the entire class. See Perez, 402 U.S., at 154 -155 (quoting Westfall v. United States, 274 U.S. 256, 259 (1927)
[ *30] ( "When it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be
prevented it may do so ")). 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. "'
E.g., Lopez, 514 U.S., at 558 (emphasis deleted) (quoting Maryland v. Wirtz, 392 U.S. 183, 196, n. 27 (1968)).
Our decision in Wickard, 317 U.S. 111, is of particular relevance. In Wickard, we upheld the application of
regulations promulgated under the Agricultural Adjustment Act of 1938, 52 Stat. 31, which were designed to control the
volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and consequent abnormally low
prices. The regulations established an allotment of 11.1 acres for Filburn's 1941 wheat crop, but he sowed 23 acres,
intending to use the excess by consuming it on his own farm. Filburn argued that even though we had sustained
Congress' power to regulate the production of goods for commerce, that power did not authorize "federal 1*31 ]
regulation [of) production not intended in any part for commerce but wholly for consumption on the farm." Wickard,
317 U.S., at 118. Justice Jackson's opinion for a unanimous Court rejected this submission. He wrote:
"The effect of the statute before us is to restrict the amount which may be produced for market and the
extent as well to which one may forestall resort to the market by producing to meet his own needs. That
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 -128.
Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself "commercial," in that it is
not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the
interstate market in that commodity.
The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are
cultivating, for home consumption, a fungible [ *32] commodity for which there is an established, albeit illegal,
interstate market. n28 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, id., at
115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and
unlawful drug markets. See nn. 20 -21, supra. 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.
n28 Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has
personally participated in that market, and Monson expresses a willingness to do so in the future. App. 59, 74,
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87. See also Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 770, 774, n. 12, and 780, n. 17
(1994) (discussing the "market value" of marijuana); id., at 790 (REHNQUIST, C. J., dissenting); id, at 792
(O'CONNOR, J., dissenting); Whalen v. Roe, 429 U.S. 589, 591 (1977) (addressing prescription drugs "for
which there is both a lawful and an unlawful market "); Turner v. United States, 396 U.S. 398, 417, n. 33 (1970)
(referring to the purchase of drugs on the "retail market ").
*33
More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that
rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317
U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA
is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the
diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of
commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal
interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is
squarely within Congress' commerce power because production of the commodity meant for home consumption, be it
wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. n29
n29 To be sure, the wheat market is a lawful market that Congress sought to protect and stabilize, whereas
the marijuana market is an unlawful market that Congress sought to eradicate. This difference, however, is of no
constitutional import. It has long been settled that Congress' power to regulate commerce includes the power to
prohibit commerce in a particular commodity. Lopez, 514 U.S., at 571 (KENNEDY, J., concurring) ( "In the
Lottery Case, 188 U.S. 321 (1903), the Court rejected the argument that Congress lacked [the] power to prohibit
the interstate movement of lottery tickets because it had power only to regulate, not to prohibit "), see also
Wickard, 317 U.S., at 128 ( "The stimulation of commerce is a use of the regulatory function quite as definitely
as prohibitions or restrictions thereon ").
[ *34]
Nonetheless, respondents suggest that Wickard differs from this case in three respects: (I ) the Agricultural
Adjustment Act, unlike the CSA, exempted small farming operations; (2) Wickard involved a "quintessential economic
activity" -- a commercial farm -- whereas respondents do not sell marijuana; and (3) the Wickard record made it clear
that the aggregate production of wheat for use on farms had a significant impact on market prices. Those differences,
though factually accurate, do not diminish the precedential force of this Court's reasoning.
The fact that Wickard's own impact on the market was "trivial by itself " was not a sufficient reason for removing
him from the scope of federal regulation. 317 U.S., at 127. That the Secretary of Agriculture elected to exempt even
smaller farms from regulation does not speak to his power to regulate all those whose aggregated production was
significant, nor did that fact play any role in the Court's analysis. Moreover, even though Wickard was indeed a
commercial farmer, the activity he was engaged in -- the cultivation of wheat for home consumption -- was not treated
by the Court as part of his commercial farming [ *35] operation. n30 And while it is true that the record in the Wickard
case itself established the causal connection between the production for local use and the national market, we have
before us findings by Congress to the same effect.
n30 See Wickard, 317 U.S., at 125 (recognizing that Wickard's activity "may not be regarded as
commerce ").
Findings in the introductory sections of the CSA explain why Congress deemed it appropriate to encompass local
activities within the scope of the CSA. See n. 20, supra. The submissions of the parties and the numerous amici all seem
to agree that the national, and international, market for marijuana has dimensions that are fully comparable to those
defining the class of activities regulated by the Secretary pursuant to the 1938 statute. n31 Respondents nonetheless
insist that the CSA cannot be constitutionally applied to their activities because Congress did not make a specific
finding that the intrastate cultivation and possession of marijuana for [ 436] medical purposes based on the
recommendation of a physician would substantially affect the larger interstate marijuana market. Be that as it may, we
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have never required Congress to make particularized findings in order to legislate, see Lopez, 514 U.S., at 562; Perez,
402 U.S., at 156, absent a special concern such as the protection of free speech, see, e.g., Turner Broadcasting System,
Inc. v. FCC, 512 U.S. 622, 664 -668 (1994) (plurality opinion). While congressional findings are certainly helpful in
reviewing the substance of a congressional statutory scheme, particularly when the connection to commerce is not self-
evident, and while we will consider congressional findings in our analysis when they are available, the absence of
particularized findings does not call into question Congress' authority to legislate. n32
n31 The Executive Office of the President has estimated that in 2000 American users spent S 10.5 billion on
the purchase of marijuana. Office of Nat. Drug Control Policy, Marijuana Fact Sheet 5 (Feb. 2004), available at
http: / /www.whitehousedrugpoIicy.gov/ publications /factsht/marijuana/index.htmI (all Internet materials as
visited June 2, 2005, and available in Clerk of Court's case file). [`37]
n32 Moreover, as discussed in more detail above, Congress did make findings regarding the effects of
intrastate drug activity on interstate commerce. See n. 20, supra. Indeed, even the Court of Appeals found that
those findings "weighed in favor" of upholding the constitutionality of the CSA. 352 F.3d 1222, 1232 (CA9
2003) (case below). The dissenters, however, would impose a new and heightened burden on Congress (unless
the litigants can garner evidence sufficient to cure Congress' perceived "inadequacies ") -- that legislation must
contain detailed findings proving that each activity regulated within a comprehensive statute is essential to the
statutory scheme. Post, at 13 -15 (O'CONNOR, 1., dissenting); post, at 8 (THOMAS, J., dissenting). Such an
exacting requirement is not only unprecedented, it is also impractical. Indeed, the principal dissent's critique of
Congress for "not even" including "declarations" specific to marijuana is particularly unpersuasive given that the
CSA initially identified 80 other substances subject to regulation as Schedule I drugs, not to mention those
categorized in Schedules 11 -V. Post, at 14 (O'CONNOR, J., dissenting). Surely, Congress cannot be expected
(and certainly should not be required) to include specific findings on each and every substance contained therein
in order to satisfy the dissenters' unfounded skepticism.
"38
In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a
modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate
commerce in fact, but only whether a "rational basis" exists for so concluding. Lopez, 514 U.S., at 557; see also Hodel
v. Yrrgrnia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276 -280 (1981); Perez, 402 U.S., at 155 -156;
Katzenbach v. McClung, 379 U.S. 294, 299 -301 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241,
252 -253 (1964). Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and
marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels, n33 we have no
difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture
and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted
comprehensive legislation to regulate ['39] the interstate market in a fungible commodity, Congress was acting well
within its authority to "make all Laws which shall be necessary and proper" to "regulate Commerce ... among the
several States." U.S. Const., Art. 1, § 8. That the regulation ensnares some purely intrastate activity is of no moment. As
we have done many times before, we refuse to excise individual components of that larger scheme.
n33 See n. 21, supra (citing sources that evince Congress' particular concern with the diversion of drugs
from legitimate to illicit channels).
1V
To support their contrary submission, respondents rely heavily on two of our more recent Commerce Clause cases.
In their myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by
those cases. Moreover, even in the narrow prism of respondents' creation, they read those cases far too broadly. Those
two cases, of course, are Lopez, 514 U.S. 549, and Morrison, 529 U.S. 598. As an initial 1'40] matter, the statutory
challenges at issue in those cases were markedly different from the challenge respondents pursue in the case at hand.
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Ilere, respondents ask us to excise individual applications of a concededly valid statutory scheme. In contrast, in both
Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress' commerce power in
its entirety. This distinction is pivotal for we have often reiterated that "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." Perez, 402 U.S., at 154 (emphasis deleted) (quoting Wirtz, 392 U.S., at 193); see also Hodel, 452 U.S., at 308.
At issue in Lopez, 514 U.S. 549, was the validity of the Gun -Free School Zones Act of 1990, which was a brief,
single- subject statute making it a crime for an individual to possess a gun in a school zone. 104 Stat. 48444845, 18
U.S.C. § 922(q)(1)(A). The Act did not regulate any economic activity and did not contain any requirement that the
possession [•41 ] of a gun have any connection to past interstate activity or a predictable impact on future commercial
activity. Distinguishing our earlier cases holding that comprehensive regulatory statutes may be validly applied to local
conduct that does not, when viewed in isolation, have a significant impact on interstate commerce, we held the statute
invalid. We explained:
"Section 922(q) is a criminal statute that by its terms has nothing to do with 'commerce' or any sort of
economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential
pan of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless
the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding
regulations of activities that arise out of or are connected with a commercial transaction, which viewed in
the aggregate, substantially affects interstate commerce." 514 U.S., at 561.
The statutory scheme that the Government is defending in this litigation is at the opposite end of the regulatory
spectrum. As explained above, the CSA, enacted in 1970 as part of the Comprehensive Drug Abuse Prevention ['42]
and Control Act, 84 Stat. 1242 -1284, was a lengthy and detailed statute creating a comprehensive framework for
regulating the production, distribution, and possession of five classes of "controlled substances." Most of those
substances -- those listed in Schedules 11 through V -- "have a useful and legitimate medical purpose and are necessary
to maintain the health and general welfare of the American people." 21 U.S.C. § 801(1). The regulatory scheme is
designed to foster the beneficial use of those medications, to prevent their misuse, and to prohibit entirely the possession
or use of substances listed in Schedule 1, except as a part of a strictly controlled research project.
While the statute provided for the periodic updating of the five schedules, Congress itself made the initial
classifications. It identified 42 opiates, 22 opium derivatives, and 17 hallucinogenic substances as Schedule I drugs. 84
Stat. 1248. Marijuana was listed as the I Oth item in the third subcategory. That classification, unlike the discrete
prohibition established by the Gun -Free School Zones Act of 1990, was merely one of many "essential parts of a larger
regulation of economic activity, [043] in which the regulatory scheme could be undercut unless the intrastate activity
were regulated." Lopez, 514 U.S., at 561. n34 Our opinion in Lopez casts no doubt on the validity of such a program.
n34 The principal dissent asserts that by "seizing upon our language in Lopez," post, at 5 (opinion of
O'CONNOR, J.), i.e., giving effect to our well- established case law, Congress will now have an incentive to
legislate broadly. Even putting aside the political checks that would generally curb Congress' power to enact a
broad and comprehensive scheme for the purpose of targeting purely local activity, there is no suggestion that
the CSA constitutes the type of "evasive" legislation the dissent fears, nor could such an argument plausibly be
made. Post, at 6 (O'CONNOR, J., dissenting).
Nor does this Court's holding in Morrison, 529 U.S. 598. The Violence Against Women Act of 1994, 108 Stat.
1902, created a federal civil remedy for the victims of gender - motivated [*44] crimes of violence. 42 U.S.C. § 13981.
The remedy was enforceable in both state and federal courts, and generally depended on proof of the violation of a state
law. Despite congressional findings that such crimes had an adverse impact on interstate commerce, we held the statute
unconstitutional because, like the statute in Lopez, it did not regulate economic activity. We concluded that "the
noneconomic, criminal nature of the conduct at issue was central to our decision" in Lopez, and that our prior cases had
identified a clear pattern of analysis: "'Where economic activity substantially affects interstate commerce, legislation
regulating that activity will be sustained. "' n35 Morrison, 529 U.S., at 610.
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n35 Lopez, 514 U.S., at 560; see also id., at 573 -574 (KENNEDY, J., concurring) (stating that Lopez did not
alter our "practical conception of commercial regulation" and that Congress may "regulate in the commercial
sphere on the assumption that we have a single market and a unified purpose to build a stable national
economy ").
['45]
Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic.
"Economics" refers to "the production, distribution, and consumption of commodities." Webster's Third New
International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption
of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession
or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that
product, n36 Such prohibitions include specific decisions requiring that a drug be withdrawn from the market as a result
of the failure to comply with regulatory requirements as well as decisions excluding Schedule 1 drugs entirely from the
market. Because the CSA is a statute that directly regulates economic, commercial activity, our opinion in Morrison
casts no doubt on its constitutionality.
n36 See 16 U.S.C. § 668(a) (bald and golden eagles); 18 U.S.C. § 175(a) (biological weapons); § 83l(a)
(nuclear material); § 842(n)(1) (certain plastic explosives); § 2342(a) (contraband cigarettes).
•46
The Court of Appeals was able to conclude otherwise only by isolating a "separate and distinct" class of activities
that it held to be beyond the reach of federal power, 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." 352
F.3d at 1229. The court characterized this class as "different in kind from drug trafficking." Id., at 1228. The differences
between the members of a class so defined and the principal traffickers in Schedule I substances might be sufficient to
justify a policy decision exempting the narrower class from the coverage of the CSA. The question, however, is whether
Congress' contrary policy judgment, i.e., its decision to include this narrower "class of activities" within the larger
regulatory scheme, was constitutionally deficient. We have no difficulty concluding that Congress acted rationally in
determining that none of the characteristics making up the purported class, whether viewed individually or in the
aggregate, compelled an exemption from the CSA; rather, the subdivided class of activities defined [•471 by the Court
of Appeals was an essential part of the larger regulatory scheme.
First, the fact that marijuana is used "for personal medical purposes on the advice of a physician" cannot itself serve
as a distinguishing factor. 352 F.3d at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by
characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses.
Moreover, the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances
can be utilized for medicinal purposes, and in what manner. Indeed, most of the substances classified in the CSA "have
a useful and legitimate medical purpose." 21 U.S.C. § 801(1). Thus, even if respondents are correct that marijuana does
have accepted medical uses and thus should be redesignated as a lesser schedule drug, n37 the CSA would still impose
controls beyond what is required by California law. The CSA requires manufacturers, physicians, pharmacies, and other
handlers of controlled substances to comply with statutory and regulatory provisions mandating registration with the
DEA, compliance ['48] with specific production quotas, security controls to guard against diversion, recordkeeping
and reporting obligations, and prescription requirements. See 21 U.S.C. § § 821 -830; 21 CFR § 1301 et seq. (2004).
Furthermore, the dispensing of new drugs, even when doctors approve their use, must await federal approval. United
States v. Rutherford, 442 U.S. 544 (1979). Accordingly, the mere fact that marijuana -- like virtually every other
controlled substance regulated by the CSA -- is used for medicinal purposes cannot possibly serve to distinguish it from
the core activities regulated by the CSA.
n37 We acknowledge that evidence proffered by respondents in this case regarding the effective medical
uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that
require marijuana to be listed in Schedule 1. See, e.g., Institute of Medicine, Marijuana and Medicine: Assessing
the Science Base 179 (J. Joy, S. Watson, & J. Benson eds. 1999) (recognizing that "scientific data indicate the
potential therapeutic value of cannabinoid drugs, primarily THC [Tetrahydrocannabinoll for pain relief, control
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of nausea and vomiting, and appetite stimulation "); see also Conant v. Walters, 309 F.3d 629, 640 -643 (CA9
2002) (Kozinski, J., concurring) (chronicling medical studies recognizing valid medical uses for marijuana and
its derivatives). But the possibility that the drug may be reclassified in the future has no relevance to the question
whether Congress now has the power to regulate its production and distribution. Respondents' submission, if
accepted, would place all homegrown medical substances beyond the reach of Congress' regulatory jurisdiction.
['49]
Nor can it serve as an "objective marker" or "objective factor" to arbitrarily narrow the relevant class as the
dissenters suggest, post, at 6 (O'CONNOR, J., dissenting); post, at 12 (THOMAS, J., dissenting). More fundamentally,
if, as the principal dissent contends, the personal cultivation, possession, and use of marijuana for medicinal purposes is
beyond the "'outer limits' of Congress' Commerce Clause authority," post, at I (O'CONNOR, J., dissenting), it must also
be true that such personal use of marijuana (or any other homegrown drug) for recreational purposes is also beyond
those "'outer limits, "' whether or not a State elects to authorize or even regulate such use. JUSTICE THOMAS' separate
dissent suffers from the same sweeping implications. That is, the dissenters' rationale logically extends to place any
federal regulation (including quality, prescription, or quantity controls) of any locally cultivated and possessed
controlled substance for any purpose beyond the "'outer limits "' of Congress' Commerce Clause authority. One need not
have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other
drugs) [450] locally cultivated for personal use (which presumably would include use by friends, neighbors, and
family members) may have a substantial impact on the interstate market for this extraordinarily popular substance. The
congressional judgment that an exemption for such a significant segment of the total market would undermine the
orderly enforcement of the entire regulatory scheme is entitled to a strong presumption of validity. Indeed, that
judgment is not only rational, but "visible to the naked eye," Lopez, 514 U.S., at 563, under any commonsense appraisal
of the probable consequences of such an open -ended exemption.
Second, limiting the activity to marijuana possession and cultivation "in accordance with state law" cannot serve to
place respondents' activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is
any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over
commerce is "'superior to that of the States to provide for the welfare or necessities of their inhabitants, "' however
legitimate or dire those necessities may be. Wirtz, 392 U.S., at 196 [1511 (quoting Sanitary Dist. of Chicago v. United
States, 266 U.S. 405, 426 (1925)). See also 392 U.S., at 195 -196; Wickard, 317 U.S., at 124 ( "'No form of state activity
can constitutionally thwart the regulatory power granted by the commerce clause to Congress "'). Just as state
acquiescence to federal regulation cannot expand the bounds of the Commerce Clause, see, e.g., Morrison, 529 U.S., at
661 -662 (BREYER, J., dissenting) (noting that 38 States requested federal intervention), so too state action cannot
circumscribe Congress' plenary commerce power. See United States v. Darby, 312 U.S. 100, 114 (194 1) ( "That power
can neither be enlarged nor diminished by the exercise or non - exercise of state power "). n38
n38 That is so even if California's current controls (enacted eight years after the Compassionate Use Act
was passed) are "effective," as the dissenters would have us blindly presume, post, at 15 (O'CONNOR, J.,
dissenting); post, at 6, 12 (THOMAS, J., dissenting). California's decision (made 34 years after the CSA was
enacted) to impose "strict controls" on the "cultivation and possession of marijuana for medical purposes," post,
at 6 (THOMAS, J., dissenting), cannot retroactively divest Congress of its authority under the Commerce
Clause. Indeed, JUSTICE. THOMAS' urgings to the contrary would turn the Supremacy Clause on its head, and
would resurrect limits on congressional power that have long since been rejected. See post, at 8 (SCALIA, J.,
concurring in judgment) (quoting McCulloch v. Maryland, 4 Wheat. 316, 424 (1819)) ( "'To impose on
[Congressl the necessity of resorting to means which it cannot control, which another government may furnish
or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on
other governments, which might disappoint its most important designs, and is incompatible with the language of
the constitution "').
Moreover, in addition to casting aside more than a century of this Court's Commerce Clause jurisprudence,
it is noteworthy that JUSTICE THOMAS' suggestion that States possess the power to dictate the extent of
Congress' commerce power would have far- reaching implications beyond the facts of this case. For example,
under his reasoning, Congress would be equally powerless to regulate, let alone prohibit, the intrastate
possession, cultivation, and use of marijuana for recreational purposes, an activity which all States "strictly
control." Indeed, his rationale seemingly would require Congress to cede its constitutional power to regulate
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commerce whenever a State opts to exercise its "traditional police powers to define the criminal law and to
protect the health, safety, and welfare of their citizens." Post, at 9 -10 (dissenting opinion).
*52
Respondents acknowledge this proposition, but nonetheless contend that their activities were not "an essential part
of a larger regulatory scheme" because they had been "isolated by the State of California, and [are] policed by the State
of California," and thus remain "entirely separated from the market." Tr, of Oral Arg. 27. The dissenters fall prey to
similar reasoning. See n. 38, supra this page. The notion that California law has surgically excised a discrete activity
that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more
importantly, one that Congress could have rationally rejected.
Indeed, that the California exemptions will have a significant impact on both the supply and demand sides of the
market for marijuana is not just "plausible" as the principal dissent concedes, post, at 16 (O'CONNOR, J., dissenting), it
is readily apparent. The exemption for physicians provides them with an economic incentive to grant their patients
permission to use the drug. In contrast to most prescriptions for legal drugs, which limit the dosage and duration of the
usage, under California law the doctor's permission to recommend [ *53] marijuana use is open - ended. The authority to
grant permission whenever the doctor determines that a patient is afflicted with "any other illness for which marijuana
provides relief," Cal. Health & Safety Code Ann. § I I362.5(b)(1)(A) (West Supp. 2005), is broad enough to allow even
the most scrupulous doctor to conclude that some recreational uses would be therapeutic. n39 And our cases have taught
us that there are some unscrupulous physicians who overprescribe when it is sufficiently profitable to do so, n40
n39 California's Compassionate Use Act has since been amended, limiting the catchall category to "any
other chronic or persistent medical symptom that either:... substantially limits the ability of the person to
conduct one or more major life activities as defined" in the Americans with Disabilities Act of 1990, or "if not
alleviated, may cause serious harm to the patient's safety or physical or mental health." Cal. Health & Safety
Code Ann. § § 11362.7(h)(12)(A) to (12)(B) (West Supp. 2005).
n40 See, e.g., United States v. Moore, 423 U.S. 122 (1975); United States v. Doremus, 249 U.S. 86 (1919)
[ *54]
'The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California
market. n41 The likelihood that all such production will promptly terminate when patients recover or will precisely
match the patients' medical needs during their convalescence seems remote; whereas the danger that excesses will
satisfy some of the admittedly enormous demand for recreational use seems obvious. n42 Moreover, that the national
and international narcotics trade has thrived in the face of vigorous criminal enforcement efforts suggests that no small
number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it
is feasible to do so. n43 Taking into account the fact that California is only one of at least nine States to have authorized
the medical use of marijuana, a fact JUSTICE O'CONNOR's dissent conveniently disregards in arguing that the
demonstrated effect on commerce while admittedly "plausible" is ultimately "unsubstantiated," post, at 14, 16, Congress
could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from
federal supervision is [ *55] unquestionably substantial.
n41 'The state policy allows patients to possess up to eight ounces of dried marijuana, and to cultivate up to
6 mature or 12 immature plants. Cal. Health & Safety Code Ann. § I I362.77(a) (West Supp. 2005). However,
the quantity limitations serve only as a floor. Based on a doctor's recommendation, a patient can possess
whatever quantity is necessary to satisfy his medical needs, and cities and counties are given carte blanche to
establish more generous limits. Indeed, several cities and counties have done just that. For example, patients
residing in the cities of Oakland and Santa Cruz and in the counties of Sonoma and Tehama are permitted to
possess up to 3 pounds of processed marijuana. Reply Brief for United States 19 (citing Proposition 215
Enforcement Guidelines). Putting that quantity in perspective, 3 pounds of marijuana yields roughly 3,000 joints
or cigarettes. Executive Office of the President, Office of National Drug Control Policy, What America's Users
Spend on illegal Drugs 24 (Dec. 2001),
ht tp: / /www.whitehousedrugpoIicy.gov/ publications/ pdf /american_users_spend_2002.pdf And the street price
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for that amount can range anywhere from $ 900 to $ 24,000. DEA, Illegal Drug Price and Purity Report (Apr.
2003) (DEA- 02058). ['561
n42 For example, respondent Raich attests that she uses 2.5 ounces of cannabis a week. App. 82. Yet as a
resident of Oakland, she is entitled to possess up to 3 pounds of processed marijuana at any given time, nearly
20 times more than she uses on a weekly basis.
n43 See, e.g., People ex rel. Lungren v. Peron, 59 Cal. App. 4th 1383, 1386 -1387 (1997) (recounting how a
Cannabis Buyers' Club engaged in an "indiscriminate and uncontrolled pattern of sale to thousands of persons
among the general public, including persons who had not demonstrated any recommendation or approval of a
physician and, in fact, some of whom were not under the care of a physician, such as undercover officers," and
noting that "some persons who had purchased marijuana on respondents' premises were reselling it unlawfully
on the street ").
So, from the "separate and distinct" class of activities identified by the Court of Appeals (and adopted by the
dissenters), we are left with "the intrastate, noncommercial cultivation, possession and use of marijuana." 352 F.3d at
1229. Thus the case [ *571 for the exemption comes down to the claim that a locally cultivated product that is used
domestically rather than sold on the open market is not subject to federal regulation. Given the findings in the CSA and
the undisputed magnitude of the commercial market for marijuana, our decisions in Wickard v. Filburn and the later
cases endorsing its reasoning foreclose that claim.
V
Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity
defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals. We
therefore do not address the question whether judicial relief is available to respondents on these alternative bases. We do
note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the
statute authorizes procedures for the reclassification of Schedule I drugs. But perhaps even more important than these
legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be
heard in the halls of Congress. Under the present state of the law, however, the judgment of the Court of Appeals [0581
must be vacated. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
CONCURBY: SCALIA
CONCUR:
JUSTICE SCALIA, concurring in the judgment.
1 agree with the Court's holding that the Controlled Substances Act (CSA) may validly be applied to respondents'
cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my
understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at
least more nuanced.
Since Perez v. United States, 402 U.S. 146 (1971), our cases have mechanically recited that the Commerce Clause
permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of
interstate commerce, and persons or things in interstate commerce; and (3) activities that "substantially affect" interstate
commerce. Id., at 150; see United States v. Morrison, 529 U.S. 598, 608 -609 (2000); United States v. Lopez, 514 U.S.
549, 558 -559 (1995); Hodel v, Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276 -277 (1981). [ *591
The first two categories are self - evident, since they are the ingredients of interstate commerce itself. See Gibbons v.
Ogden, 9 Wheat. 1, 189 -190 (1824). The third category, however, is different in kind, and its recitation without
explanation is misleading and incomplete.
It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that
substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate
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them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United
States v. Coombs, 12 Pet. 72 (1838), Congress's regulatory authority over intrastate activities that are not themselves
part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the
Necessary and Proper Clause. Id., at 78; Katzenbach v. McClung, 379 U.S. 294, 301 -302 (1964); United States v.
Wrightwood Dairy Co., 315 U.S. 110, 119 (1942); Shreveport Rate Cases, 234 U.S. 342, 353 (1914); United States v. E.
C. Knight Co., 156 U.S. 1, 39-40 (1895) [ *60] (Harlan, J., dissenting). n And the category of "activities that
substantially affect interstate commerce," Lopez, supra, at 559, is incomplete because the authority to enact laws
necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that
substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective,
Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.
nl See also Garcia V. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 584 -585 (1985)
(O'CONNOR, J., dissenting) (explaining that it is through the Necessary and Proper Clause that "an intrastate
activity 'affecting' interstate commerce can be reached through the commerce power ").
Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of
interstate commerce in two general [ *61 ] circumstances. Most directly, the commerce power permits Congress not only
to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating
potential obstructions, and to restrict it by eliminating potential stimulants. See NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1, 36 -37 (1937). That is why the Court has repeatedly sustained congressional legislation on the ground that
the regulated activities had a substantial effect on interstate commerce. See, e.g., Hodel, supra, at 281 (surface coal
mining); Katzenbach, supra, at 300 (discrimination by restaurants); lleart of Atlanta Motel, Inc. v. United States, 379
U.S. 241, 258 (1964) (discrimination by hotels); Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S.
219, 237 (1948) (intrastate price - fixing); Board of Trade of Chicago v. Olsen, 262 U.S. 1, 40 (1923) (activities of a
local grain exchange); Stafford v. Wallace, 258 U.S. 495, 517, 524 -525 (1922) (intrastate transactions at stockyard).
Lopez and Morrison recognized [ *62] the expansive scope of Congress's authority in this regard: "The pattern is clear.
Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained."
Lopez, supra, at 560; Morrison, supra, at 610 (same).
This principle is not without limitation, In Lopez and Morrison, the Court -- conscious of the potential of the
"substantially affects" test to "'obliterate the distinction between what is national and what is local, "' Lopez, supra, at
566 -567 (quoting A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 554 (1935)); see also Morrison,
supra, at 615 -616 -- rejected the argument that Congress may regulate noneconomic activity based solely on the effect
that it may have on interstate commerce through a remote chain of inferences. Lopez, supra, at 564 -566; Morrison,
supra, at 617 -618. "If we were to accept [such] arguments," the Court reasoned in Lopez, "we are hard pressed to posit
any activity by an individual that Congress is without power to regulate. [ *63] " Lopez, supra, at 564; see also
Morrison, supra, at 615 -616. Thus, although Congress's authority to regulate intrastate activity that substantially affects
interstate commerce is broad, it does not permit the Court to "pile inference upon inference," Lopez, supra, at 567, in
order to establish that noneconomic activity has a substantial effect on interstate commerce.
As we implicitly acknowledged in Lopez, however, Congress's authority to enact laws necessary and proper for the
regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial
effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it
could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could
be undercut unless the intrastate activity were regulated." 514 U.S., at 561. This statement referred to those cases
permitting the regulation of intrastate activities "which in a substantial way interfere with or obstruct the exercise of the
granted power." Wrighrwood Dairy Co., 315 U.S., at 119; [ *64] see also United States v. Darby, 312 U.S. 100, 118 -119
(1941); Shreveport Rate Cases, 234 U.S., at 353. As the Court put it in Wrightwood Dairy, where Congress has the
authority to enact a regulation of interstate commerce, "it possesses every power needed to make that regulation
effective." 315 U.S., at 118 -119.
Although this power "to make ... regulation effective" commonly overlaps with the authority to regulate economic
activities that substantially affect interstate commerce, n2 and may in some cases have been confused with that
authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of
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interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce.
Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if
that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The
relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate [`651
end under the commerce power. See Darby, supra, at 121.
n2 Wickard v. Filburn, 317 U.S. 111 (1942), presented such a case. Because the unregulated production of
wheat for personal consumption diminished demand in the regulated wheat market, the Court said, it carried
with it the potential to disrupt Congress's price regulation by driving down prices in the market. Id., at 127 -129.
This potential disruption of Congress's interstate regulation, and not only the effect that personal consumption of
wheat had on interstate commerce, justified Congress's regulation of that conduct, id., at 128 -129.
[n Darby, for instance, the Court explained that "Congress, having ... adopted the policy of excluding from
interstate commerce all goods produced for the commerce which do not conform to the specified labor standards," 312
U.S., at 121, could not only require employers engaged in the production of goods for interstate commerce [•661 to
conform to wage and hour standards, id., at 119-12 1, but could also require those employers to keep employment
records in order to demonstrate compliance with the regulatory scheme, id, at 125. While the Court sustained the
former regulation on the alternative ground that the activity it regulated could have a "great effect" on interstate
commerce, id., at 122 -123, it affirmed the latter on the sole ground that "the requirement for records even of the
intrastate transaction is an appropriate means to a legitimate end," id., at 125.
As the Court said in the Shreveport Rate Cases, the Necessary and Proper Clause does not give "Congress ... the
authority to regulate the internal commerce of a State, as such," but it does allow Congress "to take all measures
necessary or appropriate to" the effective regulation of the interstate market, "although intrastate transactions ... may
thereby be controlled." 234 U.S., at 353; see also Jones & Laughlin Steel Corp., 301 U.S., at 38 (the logic of the
Shreveport Rate Cases is not limited to instrumentalities of commerce).
Today's [•671 principal dissent objects that, by permitting Congress to regulate activities necessary to effective
interstate regulation, the Court reduces Lopez and Morrison to "little more than a drafting guide." Post, at 5 (opinion of
O'CONNOR, J.). I think that criticism unjustified. Unlike the power to regulate activities that have a substantial effect
on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be
exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures
necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may
regulate noneconomic intrastate activities only where the failure to do so "could ... undercut" its regulation of interstate
commerce. See Lopez, supra, at 561; ante, at 15, 21, 22. This is not a power that threatens to obliterate the line between
"what is truly national and what is truly local." Lopez, supra, at 567 -568.
Lopez and Morrison affirm that Congress may not regulate certain "purely local" activity within the States ['68]
based solely on the attenuated effect that such activity may have in the interstate market. But those decisions do not
declare noneconomic intrastate activities to be categorically beyond the reach of the Federal Government. Neither case
involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive
scheme of regulation; Lopez expressly disclaimed that it was such a case, 514 U.S., at 561, and Morrison did not even
discuss the possibility that it was. (The Court of Appeals in Morrison made clear that it was not. See Brzonkala v.
Virginia Polytechnic Inst., 169 F.3d 820, 834 -835 (CA4 1999) (en bane).) To dismiss this distinction as "superficial and
formalistic," see post, at 6 (O'CONNOR, J., dissenting), is to misunderstand the nature of the Necessary and Proper
Clause, which empowers Congress to enact laws in effectuation of its enumerated powers that are not within its
authority to enact in isolation. See McCulloch v. Maryland, 4 Wheat. 316, 421 -422 (1819).
And there are other restraints upon the Necessary and Proper Clause authority. As Chief Justice Marshall ['691
wrote in McCulloch v. Maryland, even when the end is constitutional and legitimate, the means must be "appropriate"
and "plainly adapted" to that end. Id., at 421. Moreover, they may not be otherwise "prohibited" and must be "consistent
with the letter and spirit of the constitution." Ibid. These phrases are not merely hortatory. For example, cases such as
Printz v. United States, 521 U.S. 898 (1997), and New York v. United States, 505 U.S. 144 (1992), affirm that a law is
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not "'proper for carrying into Execution the Commerce Clause "' "when [it] violates [a constitutional] principle of state
sovereignty." Printz, supra, at 923 -924; see also New York, supra, at 166.
III
The application of these principles to the case before us is straightforward. In the CSA, Congress has undertaken to
extinguish the interstate market in Schedule 1 controlled substances, including marijuana. The Commerce Clause
unquestionably permits this. The power to regulate interstate commerce "extends not only to those regulations which
aid, foster and protect the commerce, but embraces those which prohibit [•70] it." Darby, 312 U.S., at 113. See also
Nipolite Egg Co. v, United States, 220 U.S. 45, 58 (1911); lottery Case, 188 U.S. 321, 354 (1903). To effectuate its
objective, Congress has prohibited almost all intrastate activities related to Schedule I substances -- both economic
activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple
possession). See 21 U.S.C. § § 841(a), 844(a). That simple possession is a noneconomic activity is immaterial to
whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress's authority to enact all of these
prohibitions of intrastate controlled - substance activities depends only upon whether they are appropriate means of
achieving the legitimate end of eradicating Schedule I substances from interstate commerce.
By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish "controlled
substances manufactured and distributed intrastate" from "controlled substances manufactured and distributed
interstate," but it hardly makes sense to speak in such terms. Drugs [•71 ] like marijuana are fungible commodities. As
the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from
the interstate market -- and this is so whether or not the possession is for medicinal use or lawful use under the laws of a
particular State. n3 See ante, at 23 -30. Congress need not accept on faith that state law will be effective in maintaining a
strict division between a lawful market for "medical" marijuana and the more general marijuana market. See id., at 26-
27, and n. 38. "To impose on [Congress] the necessity of resorting to means which it cannot control, which another
government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create
a dependence on other governments, which might disappoint its most important designs, and is incompatible with the
language of the constitution." McCulloch, supra, at 424.
n3 The principal dissent claims that, if this is sufficient to sustain the regulation at issue in this case, then it
should also have been sufficient to sustain the regulation at issue in United States v. Lopez, 514 U.S. 549 (1995).
See post, at 11 -12 (arguing that "we could have surmised in Lopez that guns in school zones are 'never more than
an instant from the interstate market' in guns already subject to federal regulation, recast Lopez as a Necessary
and Proper Clause case, and thereby upheld the Gun -Free School Zones Act "). This claim founders upon the
shoals of Lopez itself, which made clear that the statute there at issue was "not an essential part of a larger
regulation of economic activity." Lopez, supra, at 561 (emphasis added). On the dissent's view of things, that
statement is inexplicable. Of course it is in addition difficult to imagine what intelligible scheme of regulation of
the interstate market in guns could have as an appropriate means of effectuation the prohibition of guns within
1000 feet of schools (and nowhere else). The dissent points to a federal law, 18 U.S.C. § 922(b)(I ), barring
licensed dealers from selling guns to minors, see post, at 12, but the relationship between the regulatory scheme
of which § 922(b)(1) is a part (requiring all dealers in firearms that have traveled in interstate commerce to be
licensed, see § 922(a)) and the statute at issue in Lopez approaches the nonexistent -- which is doubtless why the
Government did not attempt to justify the statute on the basis of that relationship.
*72
Finally, neither respondents nor the dissenters suggest any violation of state sovereignty of the sort that would
render this regulation "inappropriate," id, at 421 -- except to argue that the CSA regulates an area typically left to state
regulation. See post, at 6 -7, 11 (opinion of O'CONNOR, J.); post, at 8 -9 (opinion of THOMAS, J.); Brief for
Respondents 39-42. That is not enough to render federal regulation an inappropriate means. The Court has repeatedly
recognized that, if authorized by the commerce power, Congress may regulate private endeavors "even when [that
regulation] may pre -empt express state -law determinations contrary to the result which has commended itself to the
collective wisdom of Congress." National League of Cities v. Usery, 426 U.S. 833, 840 (1976); see Cleveland v. United
States, 329 U.S. 14, 19 (1946); McCulloch, supra, at 424. At bottom, respondents' state - sovereignty argument reduces
to the contention that federal regulation of the activities permitted by California's Compassionate Use Act is not
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sufficiently necessary to be "necessary and proper" to Congress's regulation of the interstate [ »73) market. For the
reasons given above and in the Court's opinion, I cannot agree.
I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably
conclude that its objective of prohibiting marijuana from the interstate market "could be undercut" if those activities
were excepted from its general scheme of regulation. See Lopez, 514 U.S., at 561. That is sufficient to authorize the
application of the CSA to respondents.
DISSENTBY: O'CONNOR; THOMAS
DISSENT.:
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join as to all but Part 111,
dissenting.
We enforce the "outer limits" of Congress' Commerce Clause authority not for their own sake, but to protect
historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of
power fundamental to our federalist system of government. United States v. Lopez, 514 U.S. 549, 557 (1995); .NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). One of federalism's chief virtues, of course, is that it promotes
innovation by allowing for the possibility that "a single courageous [ »74] 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." New State Ice Co. v.
Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
This case exemplifies the role of States as laboratories. The States' core police powers have always included
authority to define criminal law and to protect the health, safety, and welfare of their citizens. Brecht v. Abrahamson,
507 U.S. 619, 635 (1993); Whalen v. Roe, 429 U.S. 589, 603, n. 30 (1977). Exercising those powers, California (by
ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive
question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an
application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the
personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has
a substantial effect on interstate commerce and is therefore an appropriate subject [ »75] of federal regulation. In so
doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the
Commerce Clause -- nestling questionable assertions of its authority into comprehensive regulatory schemes -- rather
than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in Lopez,
supra, and United States v. Morrison, 529 U.S. 598 (2000). Accordingly I dissent.
In Lopez, we considered the constitutionality of the Gun -Free School Zones Act of 1990, which made it a federal
offense "for any individual knowingly to possess a firearm ... at a place the individual knows, or has reasonable cause
to believe, is a school zone," 18 U.S.C. § 922(q)(2)(A). We explained that "Congress' commerce authority includes the
power to regulate those activities having a substantial relation to interstate commerce ..., i.e., those activities that
substantially affect interstate commerce." 514 U.S., a1558 -559 (citation omitted). This power derives from the
conjunction of the Commerce Clause and the Necessary and Proper Clause. [ »76] Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528, 585 -586 (1985) (O'CONNOR, J., dissenting) (explaining that United States v. Darby,
312 U.S. 100 (1941), United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942), and Wickard v. Fitburn, 317 U.S.
11 I (1942), based their expansion of the commerce power on the Necessary and Proper Clause, and that "the reasoning
of these cases underlies every recent decision concerning the reach of Congress to activities affecting interstate
commerce "); ante, at 2 (SCALIA, J., concurring in judgment). We held in Lopez that the Gun -Free School Zones Act
could not be sustained as an exercise of that power.
Our decision about whether gun possession in school zones substantially affected interstate commerce turned on
four considerations. Lopez, supra, at 559 -567; see also Morrison, supra, at 609 -613, First, we observed that our
"substantial effects" cases generally have upheld federal regulation of economic activity that affected interstate
commerce, but that § 922(q) was a criminal statute having "nothing [ 077] to do with 'commerce' or any sort of
economic enterprise." Lopez, 514 U.S., at 561. In this regard, we also noted that "section 922(q) is not an essential part
of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate
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activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise
out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate
commerce." Ibid. Second, we noted that the statute contained no express jurisdictional requirement establishing its
connection to interstate commerce. /bid.
Third, we found telling the absence of legislative findings about the regulated conduct's impact on interstate
commerce. We explained that while express legislative findings are neither required nor, when provided, dispositive,
findings "enable us to evaluate the legislative judgment that the activity in question substantially affects interstate
commerce, even though no such substantial effect [is) visible to the naked eye." Id., at 563. Finally, we rejected as too
attenuated ['781 the Government's argument that firearm possession in school zones could result in violent crime which
in turn could adversely affect the national economy. Id., at 563 -567. The Constitution, we said, does not tolerate
reasoning that would "convert congressional authority under the Commerce Clause to a general police power of the sort
retained by the States." Id., at 567. Later in Morrison, supra, we relied on the same four considerations to hold that §
40302 of the Violence Against Women Act of 1994, 42 U.S.C. § 13 98 1, exceeded Congress' authority under the
Commerce Clause.
In my view, the case before us is materially indistinguishable from Lopez and Morrison when the same
considerations are taken into account.
11
I1
What is the relevant conduct subject to Commerce Clause analysis in this case? The Court takes its cues from
Congress, applying the above considerations to the activity regulated by the Controlled Substances Act (CSA) in
general. The Court's decision rests on two facts about the CSA: (1) Congress chose to enact a single statute providing a
comprehensive prohibition on the production, ['79] distribution, and possession of all controlled substances, and (2)
Congress did not distinguish between various forms of intrastate noncommercial cultivation, possession, and use of
marijuana. See 21 U.S.C. § § 841(a)(1), 844(a). Today's decision suggests that the federal regulation of local activity is
immune to Commerce Clause challenge because Congress chose to act with an ambitious, all- encompassing statute,
rather than piecemeal. In my view, allowing Congress to set the terms of the constitutional debate in this way, i.e., by
packaging regulation of local activity in broader schemes, is tantamount to removing meaningful limits on the
Commerce Clause.
The Court's principal means of distinguishing Lopez from this case is to observe that the Gun -Free School Zones
Act of 1990 was a "brief, single- subject statute," ante, at 20, see also ante, at 19, whereas the CSA is "a lengthy and
detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five
classes of'controlled substances, "' ibid. Thus, according to the Court, it was possible in Lopez to evaluate in isolation
the constitutionality [•801 of criminalizing local activity (there gun possession in school zones), whereas the local
activity that the CSA targets (in this case cultivation and possession of marijuana for personal medicinal use) cannot be
separated from the general drug control scheme of which it is a part.
Today's decision allows Congress to regulate intrastate activity without check, so long as there is some implication
by legislative design that regulating intrastate activity is essential (and the Court appears to equate "essential" with
"necessary") to the interstate regulatory scheme. Seizing upon our language in Lopez that the statute prohibiting gun
possession in school zones was "not an essential part of a larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were regulated," 514 U.S., at 561, the Court appears to reason
that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme. Ante, at 21-
22. If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the
relevant crime as "transfer or possession of a firearm ['811 anywhere in the nation" -- thus including commercial and
noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate
commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms
in school zones. Furthermore, today's decision suggests we would readily sustain a congressional decision to attach the
regulation of intrastate activity to a pre- existing comprehensive (or even not -so- comprehensive) scheme. If so, the Court
invites increased federal regulation of local activity even if, as it suggests, Congress would not enact a new interstate
scheme exclusively for the sake of reaching intrastate activity, see ante, at 22, n. 33; ante, at 6 (SCALIA, J., concurring
in judgment).
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1 cannot agree that our decision in Lopez contemplated such evasive or overbroad legislative strategies with
approval. Until today, such arguments have been made only in dissent. See Morrison, 529 U.S., at 657 (BREYER, J.,
dissenting) (given that Congress can regulate an essential part of a larger regulation of economic activity, "' "can
Congress save the present law by including [ "82] it, or much of it, in a broader'Safe Transport' or'Worker Safety'
act ? "). Lopez and Morrison did not indicate that the constitutionality of federal regulation depends on superficial and
formalistic distinctions. likewise 1 did not understand our discussion of the role of courts in enforcing outer limits of
the Commerce Clause for the sake of maintaining the federalist balance our Constitution requires, see Lopez, 514 U.S.,
at 557; id., at 578 (KENNEDY, J., concurring), as a signal to Congress to enact legislation that is more extensive and
more intrusive into the domain of state power. if the Court always defers to Congress as it does today, little may be left
to the notion of enumerated powers.
The hard work for courts, then, is to identify objective markers for confining the analysis in Commerce Clause
cases. Here, respondents challenge the constitutionality of the CSA as applied to them and those similarly situated. l
agree with the Court that we must look beyond respondents' own activities. Otherwise, individual litigants could always
exempt themselves from Commerce Clause regulation merely by pointing to the obvious -- that their personal ['83]
activities do not have a substantial effect on interstate commerce. See Maryland v. Wirtz, 392 U.S. 183, 193 (1968);
Wickard, 317 U.S., at 127 -128. The task is to identify a mode of analysis that allows Congress to regulate more than
nothing (by declining to reduce each case to its litigants) and less than everything (by declining to let Congress set the
terms of analysis). The analysis may not be the same in every case, for it depends on the regulatory scheme at issue and
the federalism concerns implicated. See generally Lopez, 514 U.S., at 567; id., at 579 (KENNEDY, J., concurring).
A number of objective markers are available to confine the scope of constitutional review here. Both federal and
state legislation -- including the CSA itself, the California Compassionate Use Act, and other state medical marijuana
legislation -- recognize that medical and nonmedical (i.e., recreational) uses of drugs are realistically distinct and can be
segregated, and regulate them differently. See 21 U.S.C. § 812; Cal. Health & Safety Code Ann. § 11362.5 (West
Supp. 2005); ante, at I (opinion of [•84] the Court). Respondents challenge only the application of the CSA to
medicinal use of marijuana, Cf. United Stares v. Raines, 362 U.S. 17, 20 -22 (1960) (describing our preference for as-
applied rather than facial challenges). Moreover, because fundamental structural concerns about dual sovereignty
animate our Commerce Clause cases, it is relevant that this case involves the interplay of federal and state regulation in
areas of criminal law and social policy, where "States lay claim by right of history and expertise." Lopez, supra, at 583
(KENNEDY, J., concurring); see also Morrison, supra, at 617 -619; Lopez, supra, at 580 (KENNEDY, J., concurring)
( "The statute before us upsets the federal balance to a degree that renders it an unconstitutional assertion of the
commerce power, and our intervention is required "); cf. Garcia, 469 U.S., at 586 (O'CONNOR, J., dissenting) ( "State
autonomy is a relevant factor in assessing the means by which Congress exercises its powers" under the Commerce
Clause). California, like other States, has drawn on its reserved powers to distinguish the regulation ['85] of medicinal
marijuana. To ascertain whether Congress' encroachment is constitutionally justified in this case, then, I would focus
here on the personal cultivation, possession, and use of marijuana for medicinal purposes.
B
Having thus defined the relevant conduct, we must determine whether, under our precedents, the conduct is
economic and, in the aggregate, substantially affects interstate commerce. Even if intrastate cultivation and possession
of marijuana for one's own medicinal use can properly be characterized as economic, and I question whether it can, it
has not been shown that such activity substantially affects interstate commerce. Similarly, it is neither self - evident nor
demonstrated that regulating such activity is necessary to the interstate drug control scheme.
The Court's definition of economic activity is breathtaking. It defines as economic any activity involving the
production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a
commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because
that intrastate activity is itself economic, or because regulating [ 086] it is a rational part of regulating its market. Putting
to one side the problem endemic to the Court's opinion -- the shift in focus from the activity at issue in this case to the
entirety of what the CSA regulates, see Lopez, supra, at 565 ( "depending on the level of generality, any activity can be
looked upon as commercial ") -- the Court's definition of economic activity for purposes of Commerce Clause
jurisprudence threatens to sweep all of productive human activity into federal regulatory reach.
The Court uses a dictionary definition of economics to skirt the real problem of drawing a meaningful line between
"what is national and what is local," Jones & Laughlin .Steel, 301 U.S., at 37. It will not do to say that Congress may
regulate noncommercial activity simply because it may have an effect on the demand for commercial goods, or because
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the noncommercial endeavor can, in some sense, substitute for commercial activity. Most commercial goods or services
have some sort of privately producible analogue. Home care substitutes for daycare. Charades games substitute for
movie tickets. Backyard or windowsill gardening substitutes for going to the [•87] supermarket. To draw the line
wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything
economic. We have already rejected the result that would follow -- a federal police power. Lopez, supra, at 564.
In Lopez and Morrison, we suggested that economic activity usually relates directly to commercial activity. See
Morrison, 529 U.S., at 611, n. 4 (intrastate activities that have been within Congress' power to regulate have been "of an
apparent commercial character "); Lopez, 514 U.S., at 561 (distinguishing the Gun -Free School Zones Act of 1990 from
"activities that arise out of or are connected with a commercial transaction "). The homegrown cultivation and personal
possession and use of marijuana for medicinal purposes has no apparent commercial character. Everyone agrees that the
marijuana at issue in this case was never in the stream of commerce, and neither were the supplies for growing it.
(Marijuana is highly unusual among the substances subject to the CSA in that it can be cultivated without any materials
that have traveled in interstate commerce.) Lopez makes [•88] clear that possession is not itself commercial activity.
Ibid. And respondents have not come into possession by means of any commercial transaction; they have simply grown,
in their own homes, marijuana for their own use, without acquiring, buying, selling, or bartering a thing of value. Cf. id.,
at 583 (KENNEDY, J., concurring) ( "The statute now before us forecloses the States from experimenting ... and it does
so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term ").
The Court suggests that Wickard, which we have identified as "perhaps the most far reaching example of
Commerce Clause authority over intrastate activity," Lopez, supra, at 560, established federal regulatory power over
any home consumption of a commodity for which a national market exists. I disagree. Wickard involved a challenge to
the Agricultural Adjustment Act of 1938 (AAA), which directed the Secretary of Agriculture to set national quotas on
wheat production, and penalties for excess production. 317 U.S., at 115-116. The AAA itself confirmed that Congress
made an explicit choice not to reach -- and thus ['89] the Court could not possibly have approved of federal control
over -- small - scale, noncommercial wheat farming. In contrast to the CSA's limitless assertion of power, Congress
provided an exemption within the AAA for small producers. When Filburn planted the wheat at issue in Wickard, the
statute exempted plantings less than 200 bushels (about six tons), and when he harvested his wheat it exempted
plantings less than six acres. Id., at 130, n. 30. Wickard, then, did not extend Commerce Clause authority to something
as modest as the home cook's herb garden. This is not to say that Congress may never regulate small quantities of
commodities possessed or produced for personal use, or to deny that it sometimes needs to enact a zero tolerance regime
for such commodities. It is merely to say that Wickard did not hold or imply that small -scale production of commodities
is always economic, and automatically within Congress' reach.
Even assuming that economic activity is at issue in this case, the Government has made no showing in fact that the
possession and use of homegrown marijuana for medical purposes, in California or elsewhere, has a substantial effect
on [090] interstate commerce. Similarly, the Government has not shown that regulating such activity is necessary to an
interstate regulatory scheme. Whatever the specific theory of "substantial effects" at issue (i.e., whether the activity
substantially affects interstate commerce, whether its regulation is necessary to an interstate regulatory scheme, or
both), a concern for dual sovereignty requires that Congress' excursion into the traditional domain of States be justified.
That is why characterizing this as a case about the Necessary and Proper Clause does not change the analysis
significantly. Congress must exercise its authority under the Necessary and Proper Clause in a manner consistent with
basic constitutional principles. Garcia, 469 U.S., at 585 (O'CONNOR, J., dissenting) ( "It is not enough that the 'end be
legitimate'; the means to that end chosen by Congress must not contravene the spirit of the Constitution "). As JUSTICE
SCALIA recognizes, see ante, at 7 (opinion concurring in judgment), Congress cannot use its authority under the Clause
to contravene the principle of state sovereignty embodied in the Tenth Amendment. Ibid. Likewise, that authority [ "91 J
must be used in a manner consistent with the notion of enumerated powers -- a structural principle that is as much pan
of the Constitution as the Tenth Amendment's explicit textual command. Accordingly, something more than mere
assertion is required when Congress purports to have power over local activity whose connection to an intrastate market
is not self - evident. Otherwise, the Necessary and Proper Clause will always be a back door for unconstitutional federal
regulation. Cf Printz v. United States, 521 U.S. 898, 923 (1997) (the Necessary and Proper Clause is "the last, best
hope of those who defend ultra vires congressional action "). Indeed, if it were enough in "substantial effects" cases for
the Court to supply conceivable justifications for intrastate regulation related to an interstate market, then we could have
surmised in Lopez that guns in school zones are "never more than an instant from the interstate market" in guns already
subject to extensive federal regulation, ante, at 8 ( SCALIA, J., concurring in judgment), recast Lopez as a Necessary
and Proper Clause case, and thereby upheld the Gun -Free School Zones Act of 1990. (According to ['92] the Court's
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and the concurrence's logic, for example, the Lopez court should have reasoned that the prohibition on gun possession in
school zones could be an appropriate means of effectuating a related prohibition on "selling" or "delivering" firearms or
ammunition to "any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of
age." 18 U.S.C. § 922(b)(1) (1988 ed., Supp. II).)
There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable
enough class to have a discernable, let alone substantial, impact on the national illicit drug market -- or otherwise to
threaten the CSA regime. Explicit evidence is helpful when substantial effect is not "visible to the naked eye." See
Lopez, 514 U.S., at 563. And here, in part because common sense suggests that medical marijuana users may be limited
in number and that California's Compassionate Use Act and similar state legislation may well isolate activities relating
to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self - evidently
substantial.
In [ *931 this regard, again, this case is readily distinguishable from Wickard. To decide whether the Secretary
could regulate local wheat farming, the Court looked to "the actual effects of the activity in question upon interstate
commerce." 317 U.S., at 120. Critically, the Court was able to consider "actual effects" because the parties had
"stipulated a summary of the economics of the wheat industry." Id., at 125. After reviewing in detail the picture of the
industry provided in that summary, the Court explained that consumption of homegrown wheat was the most variable
factor in the size of the national wheat crop, and that on -site consumption could have the effect of varying the amount of
wheat sent to market by as much as 20 percent. Id., at 127. With real numbers at hand, the Wickard Court could easily
conclude that "a factor of such volume and variability as home - consumed wheat would have a substantial influence on
price and market conditions" nationwide. Id., at 128; see also id., at 128 -129 ( "This record leaves us in no doubt" about
substantial effects).
The Court recognizes that "the record in [ *941 the Wickard case itself established the causal connection between
the production for local use and the national market" and argues that "we have before us findings by Congress to the
same effect." Ante, at 17 (emphasis added). The Court refers to a series of declarations in the introduction to the CSA
saying that (1) local distribution and possession of controlled substances causes "swelling" in interstate traffic; (2) local
production and distribution cannot be distinguished from interstate production and distribution; (3) federal control over
intrastate incidents "is essential to effective control" over interstate drug trafficking. 21 U.S.C. § § 801(1) -(6). These
bare declarations cannot be compared to the record before the Court in Wickard.
They amount to nothing more than a legislative insistence that the regulation of controlled substances must be
absolute. They are asserted without any supporting evidence -- descriptive, statistical, or otherwise. "Simply because
Congress may conclude a particular activity substantially affects interstate commerce does not necessarily make it so,"
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 311 (198 1) [ *951 (REHNQUIST, J.,
concurring in judgment). Indeed, if declarations like these suffice to justify federal regulation, and if the Court today is
right about what passes rationality review before us, then our decision in Morrison should have come out the other way.
In that case, Congress had supplied numerous findings regarding the impact gender- motivated violence had on the
national economy. 529 U.S., at 614; id., at 628 -636 (SOUTER, J., dissenting) (chronicling findings). But, recognizing
that "' "whether 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, "' " we found Congress' detailed
findings inadequate. Id, at 614 (quoting Lopez, supra, at 557, n. 2, in turn quoting Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 273 (1964) (Black, J., concurr ing)). If, as the Court claims, today's decision does not break
with precedent, how can it be that voluminous findings, documenting extensive hearings about the specific topic of
violence against women, [ *961 did not pass constitutional muster in Morrison, while the CSA's abstract,
unsubstantiated, generalized findings about controlled substances do?
In particular, the CSA's introductory declarations are too vague and unspecific to demonstrate that the federal
statutory scheme will be undermined if Congress cannot exert power over individuals like respondents. The declarations
are not even specific to marijuana. (Facts about substantial effects may be developed in litigation to compensate for the
inadequacy of Congress' findings; in part because this case comes to us from the grant of a preliminary injunction, there
has been no such development.) Because here California, like other States, has carved out a limited class of activity for
distinct regulation, the inadequacy of the CSA's findings is especially glaring. The California Compassionate Use Act
exempts from other state drug laws patients and their caregivers "who possess or cultivate marijuana for the personal
medical purposes of the patient upon the written or oral recommendation of a physician" to treat a list of serious medical
conditions. Cal. Health & Safety Code Ann. § § 11362.5(d), 11362.7(h) (West Supp. 2005) (emphasis [ *971 added).
Compare ibid. with, e.g., § 11357(b) (West 1991) (criminalizing marijuana possession in excess of 28.5 grams); §
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11358 (criminalizing marijuana cultivation). The Act specifies that it should not be construed to supersede legislation
prohibiting persons from engaging in acts dangerous to others, or to condone the diversion of marijuana for nonmedical
purposes. § 11362.5(b)(2) (West Supp. 2005), To promote the Act's operation and to facilitate law enforcement,
California recently enacted an identification card system for qualified patients. § § 11362.7-11362.83. We generally
assume States enforce their laws, see Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 795 (1988), and
have no reason to think otherwise here.
The Government has not overcome empirical doubt that the number of Californians engaged in personal
cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten
the federal regime. Nor has it shown that Compassionate Use Act marijuana users have been or are realistically likely to
be responsible for the drug's seeping into the market in a significant way. The [`98] Government does cite one estimate
that there were over 100,000 Compassionate Use Act users in California in 2004, Reply Brief for Petitioners 16, but
does not explain, in terms of proportions, what their presence means for the national illicit drug market. See generally
Wirtz, 392 U.S., at 196, n. 27 (Congress cannot use "a relatively trivial impact on commerce as an excuse for broad
general regulation of state or private activities "); cf. General Accounting Office, Marijuana: Early Experience with Four
States' Laws That Allow Use for Medical Purposes 21 -23 (Rep. No. 03 -189, Nov. 2002),
http:// www .gao.gov /new.items /d03189.pdf (as visited June 3, 2005 and available in Clerk of Court's case file) (in four
California counties before the identification card system was enacted, voluntarily registered medical marijuana patients
were less than 0.5 percent of the population; in Alaska, Hawaii, and Oregon, statewide medical marijuana registrants
represented less than 0.05 percent of the States' populations). It also provides anecdotal evidence about the CSA's
enforcement. See Reply Brief for Petitioners 17 -18. The Court also offers some arguments about the effect of the
Compassionate [`99] Use Act on the national market. It says that the California statute might be vulnerable to
exploitation by unscrupulous physicians, that Compassionate Use Act patients may overproduce, and that the history of
the narcotics trade shows the difficulty of cordoning off any drug use from the rest of the market. These arguments are
plausible; if borne out in fact they could justify prosecuting Compassionate Use Act patients under the federal CSA.
But, without substantiation, they add little to the CSA's conclusory statements about diversion, essentiality, and market
effect. Piling assertion upon assertion does not, in my view, satisfy the substantiality test of Lopez and Morrison.
III
We would do well to recall how lames Madison, the father of the Constitution, described our system of joint
sovereignty to the people of New York: "The powers delegated by the proposed constitution to the federal government
are few and defined. Those which are to remain in the State governments are numerous and indefinite .... 'rhe powers
reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives,
liberties, and properties of the people, [*100] and the internal order, improvement, and prosperity of the State." The
Federalist No. 45, pp. 292 -293 (C. Rossiter ed. 1961).
Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts
of marijuana in one's 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 1
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. For these reasons I dissent.
JUSTICE THOMAS, dissenting.
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never
crossed state lines, and that has had no demonstrable effect on the national market for marijuana. if Congress can
regulate this under the Commerce Clause, then it can regulate virtually [* 101 ] anything -- and the Federal Government
is no longer one of limited and enumerated powers.
Respondents' local cultivation and consumption of marijuana is not "Commerce ... among the several States." U.S.
Const., Art. 1, § 8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under
the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power.
The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating
respondents' conduct, however, is not "necessary and proper for carrying into Execution" Congress' restrictions on the
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interstate drug trade. Art. 1, § S, cl. IS. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants
Congress the power to regulate respondents' conduct.
A
As 1 explained at length in United Stares v, Lopez, 514 U.S. 549 (1995), the Commerce Clause empowers Congress
to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586 -589 (concurring
opinion). The Clause's text, structure, and history all indicate that, at [•102] the time of the founding, the term
"'commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes." Id, at 585
(THOMAS, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and
agriculture. Id., at 586 -587 (THOMAS, J., concurring). Throughout founding -era dictionaries, Madison's notes from the
Constitutional Convention, The Federalist Papers, and the ratification debates, the term "commerce" is consistently used
to mean trade or exchange -- not all economic or gainful activity that has some attenuated connection to trade or
exchange. Ibid. (THOMAS, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev.
101, 112 -125 (2001). The term "commerce" commonly meant trade or exchange (and shipping for these purposes) not
simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence
of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 857 -862 (2003).
Even the majority does not argue that respondents' conduct is itself "Commerce among the [*1031 several States."
Art. 1, § 8, cl. 3. Ante, at 19, Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate
their cannabis entirely in the State of California -- it never crosses state lines, much less as part of a commercial
transaction. Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good
or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it
would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of
marijuana.
On this traditional understanding of "commerce," the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq.,
regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not,
however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market -- intrastate
or interstate, noncommercial or commercial -- for marijuana. Respondents are correct that the CSA exceeds Congress'
commerce power as applied to their conduct, which is purely intrastate and noncommercial. [• 104]
B
More difficult, however, is whether the CSA is a valid exercise of Congress' power to enact laws that are
"necessary and proper for carrying into Execution" its power to regulate interstate commerce. Art. 1, § 8, cl, 18. The
Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to
the exercise of an enumerated power, n I Nor is it, however, a command to Congress to enact only laws that are
absolutely indispensable to the exercise of an enumerated power. n2
nl McCulloch v. Maryland, 4 Wheat. 316, 419-421 (1819); Madison, The Bank Bill, House of
Representatives (Feb. 2, 1791), in 3 The Founders' Constitution 244 (P. Kurland & R. Lemer eds. 1987)
(requiring "direct" rather than "remote" means -end fit); Hamilton, Opinion on the Constitutionality of the Bank
(Feb. 23, 1791), in id, at 248, 250 (requiring "obvious" means -end fit, where the end was "clearly
comprehended within any of the specified powers" of Congress).
n2 McCulloch, supra, at 413415; D. Currie, The Constitution in the Supreme Court: The First Hundred
Years 1789 -1888, p. 162 (1985).
In McCulloch v. Maryland, 4 Wheat. 316 (1819), this Court, speaking through Chief Justice Marshall, set forth a
test for determining when an Act of Congress is permissible under the Necessary and Proper Clause:
"Let the end be legitimate, let it be within the scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter
and spirit of the constitution, are constitutional." Id, at 421.
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To act under the Necessary and Proper Clause, then, Congress must select a means that is "appropriate" and "plainly
adapted" to executing an enumerated power; the means cannot be otherwise "prohibited" by the Constitution; and the
means cannot be inconsistent with "the letter and spirit of the Constitution." /bid.; D. Currie, The Constitution in the
Supreme Court: The First Hundred Years 1789 -1888, pp. 163 -164 (1985). The CSA, as applied to respondents' conduct,
is not a valid exercise of Congress' power under the Necessary and Proper Clause.
Congress has exercised its power over interstate commerce to criminalize trafficking in marijuana across state lines.
[' 1061 The Government contends that banning Monson and Raich's intrastate drug activity is "necessary and proper for
carrying into Execution" its regulation of interstate drug trafficking. Art. 1, § 8, cl. 18. See 21 U.S.C. § 801(6).
However, in order to be "necessary," the intrastate ban must be more than "a reasonable means [ofJ effectuating the
regulation of interstate commerce." Brief for Petitioners 14; see ante, at 19 (majority opinion) (employing rational -basis
review). It must be "plainly adapted" to regulating interstate marijuana trafficking -- in other words, there must be an
"obvious, simple, and direct relation" between the intrastate ban and the regulation of interstate commerce. Sabri v.
United States, 541 U.S. 600, 613 (2004) (THOMAS, 1., concurring in judgment); see also United States v. Dewitt, 9
Wall. 41, 44 (1870) (finding ban on intrastate sale of lighting oils not "appropriate and plainly adapted means for
carrying into execution" Congress' taxing power).
On its face, a ban on the intrastate cultivation, possession and distribution of marijuana may be plainly adapted to
stopping the interstate flow [" 1071 of marijuana. Unregulated local growers and users could swell both the supply and
the demand sides of the interstate marijuana market, making the market more difficult to regulate. Ante, at 9 -10, 19
(majority opinion). But respondents do not challenge the CSA on its face. Instead, they challenge it as applied to their
conduct. The question is thus whether the intrastate ban is "necessary and proper" as applied to medical marijuana users
like respondents. n3
n3 Because respondents do not challenge on its face the CSA's ban on marijuana, 21 U.S.C. § § 841(a)(] ),
844(a), our adjudication of their as- applied challenge casts no doubt on this Court's practice in United States v.
Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000). In those cases, we held that
Congress, in enacting the statutes at issue, had exceeded its Article I powers.
Respondents are not regulable simply because they belong to a large class (local growers [' 108] and users of
marijuana) that Congress might need to reach, if they also belong to a distinct and separable subclass (local growers and
users of state - authorized, medical marijuana) that does not undermine the CSA's interstate ban. Ante, at 6 -7
(O'CONNOR, J., dissenting). The Court of Appeals found that respondents"' limited use is distinct from the broader
illicit drug market," because "their medicinal marijuana ... is not intended for, nor does it enter, the stream of
commerce." Raich v. Ashcroft, 352 F.3d 1222, 1228 (CA9 2003). if that is generally true of individuals who grow and
use marijuana for medical purposes under state law, then even assuming Congress has "obvious" and "plain" reasons
why regulating intrastate cultivation and possession is necessary to regulating the interstate drug trade, none of those
reasons applies to medical marijuana patients like Monson and Raich.
California's Compassionate Use Act sets respondents' conduct apart from other intrastate producers and users of
marijuana. The Act channels marijuana use to "seriously ill Californians," Cal. Health & Safety Code Ann. §
11362.5(b)(1)(A) (West Supp. 2005), and prohibits "the diversion [ "109] of marijuana for nonmedical purposes," §
11362.5(b)(2). n4 California strictly controls the cultivation and possession of marijuana for medical purposes. To be
eligible for its program, California requires that a patient have an illness that cannabis can relieve, such as cancer,
AIDS, or arthritis, § l I362.5(b)(1)(A), and that he obtain a physician's recommendation or approval, § 11362.5(d).
Qualified patients must provide personal and medical information to obtain medical identification cards, and there is a
statewide registry of cardholders. § § 11362.715-.76. Moreover, the Medical Board of California has issued guidelines
for physicians' cannabis recommendations, and it sanctions physicians who do not comply with the guidelines. See, e.g.,
People v. Spark, 121 Cal. App. 4th 259, 263, 16 Cal.Rptr. 3d 840, 843 (2004).
n4 Other States likewise prohibit diversion of marijuana for nonmedical purposes. See, e.g., Colo. Const.,
Art. XV111, § 14(2)(d); Nev. Rev. Stat. § § 453A.300(I)(c )-(f) (2003); Ore. Rev. Stat. § § 475.316(lxc) -(d)
(2003).
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This class of intrastate users is therefore distinguishable from others. We normally presume that States enforce their
own laws, Riley v. Nalional Federation of Blind of N. C., Inc., 487 U.S. 781, 795 (1988), and there is no reason to
depart from that presumption here: Nothing suggests that California's controls are ineffective. "The scant evidence that
exists suggests that few people -- the vast majority of whom are aged 40 or older -- register to use medical marijuana.
General Accounting Office, Marijuana: Early Experiences with Four States' Laws That Allow Use for Medical Purposes
22 -23 (Rep. No. 03 -189, Nov. 2002), http: / /www.gao.gov /new.items /dOl389.pdf(all Internet materials as visited on
June 3, 2005, and available in Clerk of Court's case file). In part because of the low incidence of medical marijuana use,
many law enforcement officials report that the introduction of medical marijuana laws has not affected their law
enforcement efforts. ki., at 32.
These controls belie the Government's assertion that placing medical marijuana outside the CSA's reach "would
prevent effective enforcement of the interstate ban on drug trafficking." Brief for Petitioners [*I 11 ] 33. Enforcement of
the CSA can continue as it did prior to the Compassionate Use Act. Only now, a qualified patient could avoid arrest or
prosecution by presenting his identification card to law enforcement officers. In the event that a qualified patient is
arrested for possession or his cannabis is seized, he could seek to prove as an affirmative defense that, in conformity
with state law, he possessed or cultivated small quantities of marijuana intrastate solely for personal medical use. People
v. Mower, 28 Cal. 4th 457, 469-470, 49 P. 3d 1067, 1073 -1075 (2002); People v. Trippet, 56 Cal. App. 4th 1532, 1549
(1997). Moreover, under the CSA, certain drugs that present a high risk of abuse and addiction but that nevertheless
have an accepted medical use -- drugs like morphine and amphetamines -- are available by prescription. 21 U.S.C. § §
812(b)(2)(A) -(B); 2I CFR § 1308.12 (2004). No one argues that permitting use of these drugs under medical
supervision has undermined the CSA's restrictions.
But even assuming that States' controls allow some seepage of medical marijuana into the illicit drug market, there
is a multibillion - dollar [* 112] interstate market for marijuana. Executive Office of the President, Office of Nat. Drug
Control Policy, Marijuana Fact Sheet 5 (Feb. 2004),
http: / /www.whitchousedrugpoIicy.gov/ publ ications /factshUmarijuana/index.htm1. It is difficult to see how this vast
market could be affected by diverted medical cannabis, let alone in a way that makes regulating intrastate medical
marijuana obviously essential to controlling the interstate drug market.
To be sure, Congress declared that state policy would disrupt federal law enforcement. It believed the across -the-
board ban essential to policing interstate drug trafficking. 21 U.S.C. § 80] (6). But as JUSTICE O'CONNOR points out,
Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of
power. Ante, at 13 -14 (dissenting opinion). Congress cannot define the scope of its own power merely by declaring the
necessity of its enactments.
In sum, neither in enacting the CSA nor in defending its application to respondents has the Government offered any
obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress'
[* 113] goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients
like Monson and Raich. That is, unless Congress' aim is really to exercise police power of the sort reserved to the States
in order to eliminate even the intrastate possession and use of marijuana.
Even assuming the CSR's ban on locally cultivated and consumed marijuana is "necessary," that does not mean it is
also "proper." The means selected by Congress to regulate interstate commerce cannot be "prohibited" by, or
inconsistent with the "letter and spirit" of, the Constitution. McCulloch, 4 Wheat., at 421.
In Lopez, I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce
Clause would confer on Congress a general "police power" over the Nation. 514 U.S., at 584, 600 (concurring opinion).
This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause.
When agents from the Drug Enforcement Administration raided Monson's home, they seized six cannabis plants. If the
Federal Government can regulate growing a half -dozen cannabis plants for [* 1141 personal consumption (not because
it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I
powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits. Whether Congress aims at the
possession of drugs, guns, or any number of other items, it may continue to "appropriate state police powers under the
guise of regulating commerce." United States v. Morrison, 529 U.S. 598, 627 (2000) (THOMAS, J., concurring).
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Even if Congress may regulate purely intrastate activity when essential to exercising some enumerated power, see
Dewitt, 9 Wall., at 44; but see Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L.
183, 186 (2003) (detailing statements by Founders that the Necessary and Proper Clause was not intended to expand the
scope of Congress' enumerated powers), Congress may not use its incidental authority to subvert basic principles of
federalism and dual sovereignty. Printz v. United States, 521 U.S. 898, 923 -924 (1997); Alden v. Maine, 527 U.S. 706,
732 -733 (1999); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 585 (1985) [•115]
(O'CONNOR, J., dissenting); The Federalist No. 33, pp. 204 -205 (J. Cooke ed. 1961) (A. Hamilton) (hereinafter The
Federalist).
Here, Congress has encroached on States' traditional police powers to define the criminal law and to protect the
health, safety, and welfare of their citizens. n5 Brecht v. Abrahamson, 507 U.S. 619, 635 (1993); Hillsborough County
v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985). Further, the Government's rationale -- that it may
regulate the production or possession of any commodity for which there is an interstate market -- threatens to remove
the remaining vestiges of States' traditional police powers. See Brief for Petitioners 21 -22; cf. Ehrlich, The Increasing
Federalization of Crime, 32 Ariz. St. L. J. 825, 826, 841 (2000) (describing both the relative recency of a large
percentage of federal crimes and the lack of a relationship between some of these crimes and interstate commerce). This
would convert the Necessary and Proper Clause into precisely what Chief Justice Marshall did not envision, a "pretext .
.. for the accomplishment of objects not intrusted to the government." McCulloch, supra, at 423. [• 116]
n5 In fact, the Anti - Federalists objected that the Necessary and Proper Clause would allow Congress, inter
alia, to "constitute new Crimes, ... and extend [its] Power as far as [it] shall think proper; so that the State
Legislatures have no Security for the Powers now presumed to remain to them; or the People for their Rights."
Mason, Objections to the Constitution Formed by the Convention (1787), in 2 The Complete Anti - Federalist 11,
12 -13 (H. Storing ed. 198 1) (emphasis added). Hamilton responded that these objections were gross
"misrepresentations." The Federalist No. 33, at 204. He termed the Clause "perfectly harmless," for it merely
confirmed Congress' implied authority to enact laws in exercising its enumerated powers. Id., at 205; see also
Lopez, 514 U.S., at 597, n. 6 (THOMAS, J., concurring) (discussing Congress' limited ability to establish
nationwide criminal prohibitions); Cohens v. Virginia, 6 Wheat. 264, 426428 (1821) (finding it "clear that
Congress cannot punish felonies generally," except in areas over which it possesses plenary power). According
to Hamilton, the Clause was needed only "to guard against cavilling refinements" by those seeking to cripple
federal power. The Federalist No. 33, at 205; id., No. 44, at 303 -304 (J. Madison).
«117
The majority advances three reasons why the CSA is a legitimate exercise of Congress' authority under the
Commerce Clause: First, respondents' conduct, taken in the aggregate, may substantially affect interstate commerce,
ante, at 19; second, regulation of respondents' conduct is essential to regulating the interstate marijuana market, ante, at
21 -22; and, third, regulation of respondents' conduct is incidental to regulating the interstate marijuana market, ante, at
19 -20. JUSTICE O'CONNOR explains why the majority's reasons cannot be reconciled with our recent Commerce
Clause jurisprudence. The majority's justifications, however, suffer from even more fundamental flaws.
A
The majority holds that Congress may regulate intrastate cultivation and possession of medical marijuana under the
Commerce Clause, because such conduct arguably has a substantial effect on interstate commerce. The majority's
decision is further proof that the "substantial effects" test is a "rootless and malleable standard" at odds with the
constitutional design. Morrison, supra, at 627 (THOMAS, J., concurring).
The majority's treatment of the substantial effects test is [' 118] rootless, because it is not tethered to either the
Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate
commerce, not activities that substantially affect interstate commerce -- any more than Congress may regulate activities
that do not fall within, but that affect, the subjects of its other Article I powers. Lopez, supra, at 589 (THOMAS, J.,
concurring). Whatever additional latitude the Necessary and Proper Clause affords, supra, at 9 -10, the question is
whether Congress' legislation is essential to the regulation of interstate commerce itself -- not whether the legislation
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extends only to economic activities that substantially affect interstate commerce. Supra, at 4; ante, at 5 (SCALIA, J.,
concurring in judgment).
The majority's treatment of the substantial effects test is malleable, because the majority expands the relevant
conduct. By defining the class at a high level of generality (as the intrastate manufacture and possession of marijuana),
the majority overlooks that individuals authorized by state law to manufacture and possess medical marijuana exert no
demonstrable effect on the[*] 19) interstate drug market. Supra, at 7 -8. The majority ignores that whether a particular
activity substantially affects interstate commerce -- and thus comes within Congress' reach on the majority's approach --
can turn on a number of objective factors, like state action or features of the regulated activity itself. Ante, at 6 -7
(O'CONNOR, J., dissenting). For instance, here, if California and other States are effectively regulating medical
marijuana users, then these users have little effect on the interstate drug trade. n6
n6 Remarkably, the majority goes so far as to declare this question irrelevant. It asserts that the CSA is
constitutional even if California's current controls are effective, because state action can neither expand nor
contract Congress' powers. Ante, at 27, n. 38. The majority's assertion is misleading. Regardless of state action,
Congress has the power to regulate intrastate economic activities that substantially affect interstate commerce
(on the majority's view) or activities that are necessary and proper to effectuating its commerce power (on my
view). But on either approach, whether an intrastate activity falls within the scope of Congress' powers turns on
factors that the majority is unwilling to confront. The majority apparently believes that even if States prevented
any medical marijuana from entering the illicit drug market, and thus even if there were no need for the CSA to
govern medical marijuana users, we should uphold the CSA under the Commerce Clause and the Necessary and
Proper Clause. Finally, to invoke the Supremacy Clause, as the majority does, ibid., is to beg the question. The
CSA displaces California's Compassionate Use Act if the CSA is constitutional as applied to respondents'
conduct, but that is the very question at issue.
[' 1201
The substantial effects test is easily manipulated for another reason. This Court has never held that Congress can
regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U.S., at 613 ( "Thus far in
OUT Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is
economic in nature" (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power,
the majority defines economic activity in the broadest possible terms as the the production, distribution, and
consumption of commodities. "' n7 Ante, at 23 (quoting Webster's Third New International Dictionary 720 (1966)
(hereinafter Webster's 3d). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 8-
9 (O'CONNOR, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate
quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's
assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined,
[• 1211 " while those of the States are "numerous and indefinite." The Federalist No. 45, at 313 (J. Madison).
n7 Other dictionaries do not define the term "economic" as broadly as the majority does. See, e.g., The
American Heritage Dictionary of the English Language 583 (3d ed. 1992) (defining "economic" as "of or
relating to the production, development, and management of material wealth, as of a country, household, or
business enterprise" (emphasis added)). The majority does not explain why it selects a remarkably expansive 40-
year -old definition.
Moreover, even a Court interested more in the modem than the original understanding of the Constitution ought to
resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate
"Commerce," and respondents' conduct does not qualify under any definition of that term. n8 The majority's opinion
only illustrates the steady drift away from the text of the Commerce Clause. "There is an inexorable expansion from
"'commerce, [• 122] "' ante, at 1, to "commercial" and "economic" activity, ante, at 20, and finally to all "production,
distribution, and consumption" of goods or services for which there is an "established ... interstate market," ante, at 23.
Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce
Clause, but rewriting it.
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n8 See, e.g., id., at 380 ( "the buying and selling of goods, especially on a large scale, as between cities or
nations "); The Random House Dictionary of the English Language 411 (2d ed. 1987) ( "an interchange of goods
or commodities, esp. on a large scale between different countries ... or between different parts of the same
country"); Webster's 3d 456 ( "the exchange or buying and selling of commodities esp. on a large scale and
involving transportation from place to place ").
The majority's rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause
covers the entire web of human activity, [• 1231 Congress will be left powerless to regulate the national economy
effectively. Ante, at 15 -16; Lopez, 514 U.S., at 573 -574 (KENNEDY, J., concurring). The interconnectedness of
economic activity is not a modern phenomenon unfamiliar to the Framers. /d., at 590 -593 (THOMAS, J., concurring);
Letter from J. Madison to S. Roane (Sept. 2, 1819), in 3 The Founders' Constitution 259 -260 (P. Kurland & R. Lemer
eds. 1987). Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger
to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided
stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to
strip States of their ability to regulate intrastate commerce -- not to mention a host of local activities, like mere drug
possession, that are not commercial.
One searches the Court's opinion in vain for any hint of what aspect of American life is reserved to the States. Yet
this Court knows that the Constitution created a Federal Government of limited powers. "' New York v. United States,
505 U.S. 144, 155 (1992) [" 1241 (quoting Gregory v. Ashcroft, 501 L.S. 452, 457 (1991)). That is why today's decision
will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits
on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the
stand -alone substantial effects test and revisiting our definition of "Commerce among the several States." Congress may
regulate interstate commerce -- not things that affect it, even when summed together, unless truly "necessary and
proper" to regulating interstate commerce.
B
The majority also inconsistently contends that regulating respondents' conduct is both incidental and essential to a
comprehensive legislative scheme. Ante, at 19 -20, 21 -22. 1 have already explained why the CSA's ban on local activity
is not essential. Supra, at 7 -8. However, the majority further claims that, because the CSA covers a great deal of
interstate commerce, it "is of no moment" if it also "ensnares some purely intrastate activity." Ante, at 19. So long as
Congress casts its net broadly over an interstate market, according to the majority, it [" 1251 is free to regulate interstate
and intrastate activity alike. This cannot be justified under either the Commerce Clause or the Necessary and Proper
Clause. If the activity is purely intrastate, then it may not be regulated under the Commerce Clause. And if the
regulation of the intrastate activity is purely incidental, then it may not be regulated under the Necessary and Proper
Clause.
Nevertheless, the majority terms this the "pivotal" distinction between the present case and Lopez and Morrison.
Ante, at 20. In Lopez and Morrison, the parties asserted facial challenges, claiming "that a particular statute or provision
fell outside Congress' commerce power in its entirety." Ante, at 20. Here, by contrast, respondents claim only that the
CSA falls outside Congress' commerce power as applied to their individual conduct. According to the majority, while
courts may set aside whole statutes or provisions, they may not "excise individual applications of a concededly valid
statutory scheme." Ante, at 20 -21; see also Perez v. United States, 402 U.S. 146, 154 (1971); Maryland v. Wirtz, 392
U.S. 183, 192 -193 (1968). [''126]
It is true that if respondents' conduct is part of a "class of activities ... and that class is within the reach of federal
power," Perez, supra, at 154 (emphases deleted), then respondents may not point to the de minimis effect of their own
personal conduct on the interstate drug market, Wirtz, supra, at 196, n. 27. Ante, at 6 (O'CONNOR, 1., dissenting). But
that begs the question at issue: whether respondents "'class of activities" is "within the reach of federal power," which
depends in turn on whether the class is defined at a low or a high level of generality. Supra, at 5. If medical marijuana
patients like Monson and Raich largely stand outside the interstate drug market, then courts must excise them from the
CSA's coverage. Congress expressly provided that if "a provision [of the CSA] is held invalid in one of more of its
applications, the provision shall remain in effect in all its valid applications that are severable." 21 U.S.C. § 901
(emphasis added); see also United States v. Booker, 543 U.S. _ _ (2005) (slip op., at 9, and n. 9) (THOMAS, J.,
dissenting in part).
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Even in the [» 127] absence of an express severability provision, it is implausible that this Court could set aside
entire portions of the United States Code as outside Congress' power in Lopez and Morrison, but it cannot engage in the
more restrained practice of invalidating particular applications of the CSA that are beyond Congress' power. This Court
has regularly entertained as- applied challenges under constitutional provisions, see United States v. Raines, 362 U.S. 17,
20 -21 (1960), including the Commerce Clause, see Katzenbach v. McClung, 379 U.S. 294, 295 (1964); Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 249 (1964); Wickard v. Filburn, 317 U.S. 111, 113 -114 (1942). There is no
reason why, when Congress exceeds the scope of its commerce power, courts may not invalidate Congress'
overreaching on a case -by -case basis. The CSA undoubtedly regulates a great deal of interstate commerce, but that is no
license to regulate conduct that is neither interstate nor commercial, however minor or incidental.
If the majority is correct that Lopez and Morrison are distinct because they were facial [» 1281 challenges to
"particular statutes or provisions," ante, at 20, then congressional power turns on the manner in which Congress
packages legislation. Under the majority's reasoning, Congress could not enact -- either as a single- subject statute or as a
separate provision in the CSA -- a prohibition on the intrastate possession or cultivation of marijuana. Nor could it enact
an intrastate ban simply to supplement existing drug regulations. However, that same prohibition is perfectly
constitutional when integrated into a piece of legislation that reaches other regulable conduct. Lopez, 514 U.S., at 600-
601 (THOMAS, J., concurring).
Finally, the majority's view — that because some of the CSA's applications are constitutional, they must all be
constitutional -- undermines its reliance on the substantial effects test. The intrastate conduct swept within a general
regulatory scheme may or may not have a substantial effect on the relevant interstate market. "One always can draw the
circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on
commerce." Id., at 600 (THOMAS, J., concurring). [» 1291 The breadth of legislation that Congress enacts says nothing
about whether the intrastate activity substantially affects interstate commerce, let alone whether it is necessary to the
scheme. Because medical marijuana users in California and elsewhere are not placing substantial amounts of cannabis
into the stream of interstate commerce, Congress may not regulate them under the substantial effects test, no matter how
broadly it drafts the CSA.
The majority prevents States like California from devising drug policies that they have concluded provide much -
needed respite to the seriously ill. It does so without any serious inquiry into the necessity for federal regulation or the
propriety of "displacing state regulation in areas of traditional state concern," id., at 583 (KENNEDY, J., concurring).
The majority's rush to embrace federal power "is especially unfortunate given the importance of showing respect for the
sovereign States that comprise our Federal Union." United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S.
483, 502 (200 1) (STEVENS, J., concurring in judgment). Our federalist system, properly understood, allows California
[» 130] and a growing number of other States to decide for themselves how to safeguard the health and welfare of their
citizens. 1 would affirm the judgment of the Court of Appeals. I respectfully dissent.
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000101
11R 2087 111
EXHIBIT E
109th CONGRESS
I st Session
II. R. 2087
To provide for the medical use of marijuana in accordance with the laws of the various
States.
IN THE HOUSE OF REPRESENTATIVES
May 4, 2005
Mr. FRANK of Massachusetts (for himself, Mr. PALL, Mr. ROHRABACHER, Mr.
FARR, Mr. SANDERS, Mr. KUCINICH, Mr. ABERCROMBIE, Mr. WEXLER, Mr.
WAXMAN, Mr. HINCHEY, Mr. GEORGE MILLER of California, Mr. MCDERMOTT,
Ms. SCHAKOWSKY, Ms. WOOLSEY, Mr. DEFAZIO, Mr. MCGOVERN, Mr.
BLUMENAUER, Ms. LEE, Mr. CASE, Mr. GRIJALVA, Mr. UDALL of Colorado, Mr.
STARK, Mr. CAPUANO, Ms. JACKSON -LEE of Texas, Ms. ESHOO, Mr. HONDA,
Mr. OLVER, Mr. MORAN of Virginia, Mr. ANDREWS, Ms. LINDA T. SANCHEZ of
California, and Ms. BALDWIN) introduced the following bill; which was referred to the
Committee on Energy and Commerce
A BILL
To provide for the medical use of marijuana in accordance with the laws of the various
States.
Be it enacted by the Senate and House of Representatives of the United .States of
America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the 'States' Rights to Medical Marijuana Act'.
SEC. 2. CONTROLLED SUBSTANCES ACT.
(a) Schedule- Marijuana is moved from schedule I of the Controlled Substances
Act to schedule 1I of such Act.
(b) Prescription or Recommendation -
(1) IN GENERAL- No provision of the Controlled Substances Act shall
prohibit or otherwise restrict --
000102
(A) the prescription or recommendation of marijuana by a
physician for medical use,
(B) an individual from obtaining and using marijuana from a
prescription or recommendation of marijuana by a physician for
medical use by such individual, or
(C) a pharmacy from obtaining and holding marijuana for the
prescription or recommendation of marijuana by a physician for
medical use under applicable State law
in a State in which marijuana may be prescribed or recommended by a
physician for medical use under applicable State law.
(2) PRODUCTION- No provision of the Controlled Substances Act shall
prohibit or otherwise restrict an entity established by a State, in which
marijuana may be prescribed or recommended by a physician for medical
use, for the purpose of producing marijuana for prescription or
recommendation by a physician for medical use from producing and
distributing marijuana for such purpose.
SEC. 3. FEDERAL FOOD, DRUG, AND COSMETIC ACT.
(a) In General- No provision of the Federal Food, Drug, and Cosmetic Act shall
prohibit or otherwise restrict- -
(1) the prescription or recommendation of marijuana by a physician for
medical use,
(2) an individual from obtaining and using marijuana from a prescription
or recommendation of marijuana by a physician for medical use by such
individual, or
(3) a pharmacy from obtaining and holding marijuana for the prescription
or recommendation of marijuana by a physician for medical use,
in a State in which marijuana may be prescribed or recommended by a physician
for medical use under applicable State law.
(b) Production- No provision of the Federal Food, Drug, and Cosmetic Act shall
prohibit or otherwise restrict an entity established by a State, in which marijuana
may be prescribed or recommended by a physician for medical use, for the
purpose of producing marijuana for prescription or recommendation by a
physician for medical use from producing and distributing marijuana for such
purpose.
SEC. 4. RELATION OF ACT TO CERTAIN PROHIBITIONS
RELATING TO SMOKING.
This Act does not affect any Federal, State, or local law regulating or prohibiting
smoking in public.
END
000103
ORDINANCE NO.
AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL
OF THE MOORPARK, CALIFORNIA, MAKING FINDINGS AND
EXTENDING A TEMPORARY MORATORIUM ON THE
ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA
DISPENSARIES
THE CITY COUNCIL OF THE CITY OF MOORPARK DOES ORDAIN AS FOLLOWS:
SECTION 1. Findings
A. In 1996, the voters of the State of California approved
Proposition 215, which was codified as Health and Safety Code
Section 11362.5, et seq., and entitled the Compassionate Use Act
of 1996 ( "the Act ").
B. The intent of Proposition 215 was to enable persons who
are in need of medical marijuana for medical purposes to obtain
and use it under limited, specified circumstances.
C. On January 1, 2004, SB 420 went into effect. SB 420
was enacted by the Legislature to clarify the scope of the Act
and to allow cities and counties to adopt and enforce rules and
regulations consistent with SB 420 and the Act.
D. On July 6, 2005, the City Council adopted a forty -five
(45) day interim urgency ordinance to impose a moratorium on the
issuance of any entitlement for any medical marijuana dispensary.
The Moorpark Municipal Code, including the Moorpark Zoning Code,
does not otherwise address or regulate in any manner the
existence or location of medical marijuana dispensaries.
E. After receiving inquiries from persons interested in
establishing medical marijuana dispensaries, numerous other
cities in the State of California have adopted ordinances
prohibiting or heavily regulating such dispensaries. Because a
significant number of cities, including cities in the County of
Ventura such as the City of Simi Valley, have prohibited or
heavily regulated medical marijuana dispensaries, there is a
substantially increased likelihood that such establishments will
seek to locate in the City of Moorpark, thus creating a current
and immediate threat to the public health, safety, or welfare.
F. Other California cities that have permitted the
establishment of medical marijuana dispensaries have witnessed an
increase in crime, such as burglaries, robberies, and sales of
illegal drugs in the areas immediately surrounding such
dispensaries. Recent examples from last year include: men who
kicked in the window of a medical marijuana dispensary in Oakland
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Ordinance No.
Page 2
and tried to burglarize the dispensary; in Alameda County,
thieves broke into a medical marijuana dispensary, burglarized
the safe and robbed persons present. Furthermore, the United
States Department of Justice's California Medical Marijuana
Information report has advised that large -scale drug traffickers
have been posing as "care givers" to obtain and sell marijuana,
thus increasing the likelihood that such parties would traffic in
illegal drugs in the City, thereby endangering the public health,
safety and welfare.
G. The Supreme Court of the United States ruled in United
States v. Oakland Cannabis Buyers' Cooperative, 532 US 483 (2001)
that, notwithstanding California law, the federal Controlled
Substances Act continues to prohibit marijuana use, distribution,
and possession, and that no medical necessity exception exists to
these prohibitions.
H. The Supreme Court of the United States ruled in
Gonzales v. Raich, U.S. LEXIS 4656 (2005), that pursuant to the
commerce clause, the federal government has the power to prohibit
the local cultivation and use of marijuana, even though such
cultivation and use complies with California law.
I. In Gonzales v. Raich, the Supreme Court of the United
States did not indicate that California law was invalid, but
rather, merely indicated that the federal government could
continue to enforce its medical marijuana laws.
J. Members of Congress continue to introduce bills which
would, among other things, have the effect of legalizing the
medical use of marijuana in California, or impose moratoriums on
all federal government enforcing marijuana laws against users of
marijuana for medical purposes. For example, on May 4, 2005,
Representative Frank introduced HR 2087, with 36 co- sponsors, to
provide for the medical use of marijuana in accordance with the
laws of the various States. The most recent action on HR 2087
was taken May 13, 2005, when it was referred to the House
Subcommittee on Health.
K. Even though medical marijuana dispensaries violate
federal law, these facilities continue to operate throughout
California. Prior to the issuance of Gonzales v. Raich, the
federal government has only infrequently enforced its anti -drug
laws against medical marijuana dispensaries. For example, as of
June 7, 2005, there were nine medical marijuana facilities
operating in the City of West Hollywood. It is unclear whether,
after Gonzales v. Raich, the federal government will strongly
enforce its laws.
000105
Ordinance No.
Page 3
L. To address the apparent conflict between federal and
state law, as well as the community and statewide concerns
regarding the establishment of medical marijuana dispensaries,
and the fact that federal legislation and enforcement is
currently in flux, it is necessary for the City of Moorpark to
study the potential impacts such facilities may have on the
public health, safety, and welfare.
M. Based on the foregoing, the City Council finds that
approving additional subdivisions, use permits, variances,
building permits or any other applicable entitlement providing
for the establishment and /or operation of medical marijuana
dispensaries prior to (1) resolving whether federal law will be
routinely enforced against medical marijuana dispensaries; (2)
the City's completion of its study of the potential impact of
such facilities; and (3) resolving any zoning conflicts based on
the fact that no zoning currently exists in the City for such
dispensaries; would result in the current and immediate threat to
the public health, safety, and welfare. The City finds that a
temporary moratorium on the issuance of such entitlements is
therefore necessary.
SECTION 2. Imposition of Moratorium
A. In accordance with the authority granted the City of
Moorpark under Government Code Section 65858, and pursuant to the
findings stated herein, from and after the date of this
ordinance, no use permit, variance, building permit, business
license or other applicable entitlement shall be approved or
issued for the establishment or operation of a medical marijuana
dispensary for a period of twenty two (22) months and fifteen
(15) days.
B. "Medical marijuana dispensary" includes any site,
facility, location, use, cooperative or business which
distributes, sells, exchanges, processes, delivers, gives away,
or cultivates marijuana for medical purposes to qualified
patients, health care providers, patients' primary caregivers, or
physicians pursuant to Proposition 215, Health & Safety Code
§ 11362.5 et seq. or any State regulations adopted in furtherance
thereof. Marijuana shall also mean cannabis and all parts of
that plant.
C. This ordinance is an extension of the existing forty -
five (45) day interim urgency ordinance, is adopted pursuant to
the authority granted to the City of Moorpark by Government Code
Section 65858, and is for the immediate preservation of the
000106
Ordinance No.
Page 4
public health, safety, and welfare. The facts constituting the
urgency are:
(1) California cities that have permitted the
establishment of medical marijuana dispensaries have found that
such dispensaries have resulted in negative and harmful secondary
effects, such as an increase in crime, including robberies,
burglaries, and sales of illegal drugs in the areas immediately
surrounding medical marijuana dispensaries;
(2) after receiving inquiries from persons interested
in establishing medical marijuana dispensaries, numerous other
cities in California, including cities in the County of Ventura,
have adopted ordinances prohibiting or heavily regulating such
dispensaries, and because a significant portion of the region has
prohibited or heavily regulated medical marijuana dispensaries,
there is a substantially increased likelihood that such
establishments will seek to locate in the City of Moorpark;
(3) the City of
standards in its Municipal
operation, and concentration
within the City;
Moorpark does not currently have
Code relating to the location,
of medical marijuana dispensaries
(4) absent the adoption of this interim urgency
ordinance, the establishment and operation of medical marijuana
dispensaries in the City of Moorpark would result in the negative
and harmful secondary effects other cities have experienced, as
identified above;
(5) currently the state and federal laws relating to
medical marijuana dispensaries conflict, and federal legislation
continues to be introduced which, if passed, would substantially
change the regulation of medical marijuana facilities; and
(6) as a result of the conflict in state and federal
laws on the matter, coupled with negative and harmful secondary
effects associated with medical marijuana dispensaries, the
current and immediate threat such secondary effects pose to the
public health, safety, and welfare, and the zoning conflicts that
would be created by the establishment and operation of a medical
marijuana dispensary, it is necessary to establish a temporary,
twenty -two (22) month and fifteen (15) day moratorium on the
establishment and operation of new medical marijuana dispensaries
in the City, pending resolution of the conflict of laws by the
Congress of the United States, completion of the City's study of
the potential impacts of medical marijuana dispensaries, and
possible amendments to the City's zoning ordinances.
000107
Ordinance No.
Page 5
SECTION 3. Compliance with California Environmental
Quality Act
The City Council finds that this ordinance is not subject to the
California Environmental Quality Act (CEQA) pursuant to Sections
15060(c)(2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the
environment) and 15060(c) (3) (the activity is not a project as
defined in Section 15378) of the CEQA Guidelines, California Code
of Regulations, Title 14, Chapter 3, because it has no potential
for resulting in physical change to the environment, directly or
indirectly; it prevents changes in the environment pending the
completion of the contemplated municipal code review.
SECTION 4. Severability
If any provision of this ordinance or the application thereof to
any person or circumstance is held invalid, such invalidity shall
not affect other provisions or applications of the ordinance
which can be given effect without the invalid provision or
application, and to this end the provisions of this ordinance are
severable. The City Council hereby declares that it would have
adopted this ordinance irrespective of the invalidity of any
particular portion thereof.
SECTION 5. Effective Date
Consistent with Government Code 65858, this ordinance shall
become effective immediately upon adoption if adopted by at a
least four - fifths vote of the City Council and shall be in effect
for twenty -two (22) months and fifteen (15) days from the date of
adoption unless extended by the City Council as provided for in
the Government Code.
SECTION 6. Publication
The City Clerk shall certify to the adoption of this ordinance
and cause it, or a summary of it, to be published once in a
newspaper of general circulation printed and published within the
City of Moorpark.
000108
Ordinance No.
Page 6
PASSED AND ADOPTED this 20th day of July, 2005.
ATTEST:
Deborah Traffenstedt, City Clerk
Patrick Hunter, Mayor
00010to