BU prof explains cannabis case

BY CLINTON DICK

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“My prediction is we will lose this case,” Professor Randy Barnett told a group of students on Monday, referring to the medical cannabis case U.S. v. Oakland Cannabis Buyers Cooperative, which is currently before the Ninth Circuit. Barnett is one of the lead attorneys for the cannabis co-op, taking the lead in oral arguments before the three-judge panel just last week.

“I tend not to practice law,” Barnett said. “It has been over 20 years since I was a prosecutor in Chicago. I love trying cases, but it is not something I normally do.”

The case began with a 1996 initiative passed by California voters that created an exception to state prohibitions on the cultivation and possession of marijuana. The “medical marijuana” exceptions, however, only applied to state laws. The federal Controlled Substances Act still made it illegal to “manufacture, distribute, or dispense” marijuana.

In 1998 the Clinton administration brought suit in the U.S. District Court for the Northern District of California, seeking to enjoin the Buyers Cooperative from distributing marijuana. On the first round before the Ninth Circuit, the co-op prevailed on its medical marijuana claim.

In 2001, however, the Supreme Court remanded the case to the Ninth Circuit. In an opinion written by Justice Thomas and joined by seven other justices, the Court held that it was remanding the case in order for the lower courts to rule on the constitutional issues. Justice Breyer recused himself from the case because his brother, Judge Charles R. Breyer, was the District Court judge who originally heard the suit. The following year Judge Charles Breyer granted the United States a permanent injunction, and the co-op appealed the decision to the Ninth Circuit.

“Congress is only supposed to exercise its enumerated powers. The Founding Fathers created a list, and that means there may not be things on this list,” Barnett explained as he discussed the three arguments used in the co-op’s appeal. “The clause of the Constitution that gets the most play is the commerce clause,” referring to Congress’s ability to regulate interstate commerce.

Barnett continued, “The co-op sells the product, but it is only to people who medically need it, not to the general public. This stuff is distributed in the state of California, consumed in the state of California, and bought in the state of California.” The problem with this argument, the professor conceded, is that “some of our activity is economic.” He hoped he had convinced the three-judge panel that the medical marijuana exception should fall within two Supreme Court decisions from the early 1990s that held “the federal government can only reach inside a state if in the aggregate that activity would have a substantial affect on interstate commerce.”

Conceding that their argument asserting a fundamental right to avoid pain and suffering would fail “because the Court is hesitant to declare more unenumerated rights,” Barnett hoped a restrictive police powers argument would prevail in a Court that looks favorably upon State rights. California “has made a decision in the interests of health of their citizens” to allow the use of medical marijuana, Barnett said. “What is going on here is Congress is going beyond that power and Congress is taking on an implied power. We are arguing that the laws of Congress are improper, as opposed to ‘proper.'”

Barnett has visited HLS twice to teach Contracts: in 1992 and 2002.

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