reached an agreement on how it is to be divided and so we will good morning your honors and may it please the court my name is randy barnett i represent the oakland cannabis buyers cooperative and i am also speaking this morning on behalf of the talents and marie and mr jerry gerald allman will speak on behalf of the women's alliance for medical marijuana there are many lawyers in the courtroom this morning and many clients in the courtroom this morning i can't acknowledge all of them but i do want to acknowledge the presence of mr taylor carrie representing the amicus state of california who was in the courtroom this morning your honor so i will take seventeen minutes to address the commerce clause and state sovereignty issues raised by this case mr allman will take eight minutes to address the issues of fundamental rights and the immunities theory raised in this case and we are both prepared to answer questions over on the importance to this case of the supreme court decision in lawrence versus texas and we will then reserve five minutes forward bottle we have identified in our briefs three basic constitutional objections to the under the necessary and proper clause because it interferes with the police powers of the state of california third because as in lawrence get it this injunction infringes on the personal liberties that appellant's of the appellant's that are not harmful to others without adequate adequate justification and finally and this is the issue to be addressed by mr allman because it violates the fundamental rights of the appellant's now there are two issues that i think have been muddied by the pleadings in this case that i want to be sure that i get to and pay special attention to the first is the definition of the relevant class for purposes of aggregation the second is the issue of the supremacy clause for purposes of the police powers argument that we've been making in this case the government has urged upon you and approach to identifying the relevant class for purposes of identification that cannot be tenable we are compelled to identify the relevant class of activities here for purposes of aggregating the effects of that class to see if it has a substantial effect on interstate commerce we are not compelled to do so by our theories we are compelled to do so by the case of wickard versus filburn which established the aggregates effects principle if we were riding on a blank slate and we didn't have wicked versus filburn we could stop simply by saying that the government has exceeded its powers under the commerce clause because it has gone beyond interstate commerce it allows the government to go into intrastate commerce under certain defined circumstances and that is when the class of conduct at issue is shown to have a substantial effect on interstate commerce so the question is how do you define that class and there are two basic approaches that can't possibly be right the first approach would be to limit the class or to gerrymander the class so narrowly that it basically since the individual party him in her or herself alone that would be the kind of de minimus approach that is ruled out by case law  undermine the whole point of wickard which is to allow the aggregation of similar activities to see what kind of effect it has on interstate commerce so that can't be right on the other extreme is the government's position that any class think the class must be identified by congress and whatever class happens to be identified by congress under the statute as a class at which it is and that is the only class that the court is tree to identify as the relevant class that can't be right and the reason why that can't be right is because if that were true the larger the category of interest wholly interest rate activities that the government was seeking to regulate the greater would be its justification for regulating those activities because obviously the larger the aggregate effects of that  distribution of marijuana if you did and we don't really dispute that as a general proposition as applied as a in a facial challenge to the statute we do not contest that this direction is constitutional and also constitutional with respect to some interest state activities but the relevant class in this case your honor is medical cannabis and that was not addressed by ties or nor by any other previous i know is addressed by congress congress maybe they're wrong but congress says there is no permissible use of marijuana and that's why it's on schedule one well the the the statute does speak in general terms with the findings of congress that relate to what class of activities those but the question is is schedule is that restriction that is contained on schedule one constitutional as applied to this particular class of activities to me arguing that it's erroneous rather than unconstitutional i mean maybe they're wrong about whether it ought to be on one you know if if if they sought to reach this class of activities which i take from your quote the assumption as your other question is that they did seek to reach these activities of the statute doesn't say specifically that they do but to mean that they did reach these activities this would be the on their powers to reach these activities as our argument but for reasons that identify it's beyond their commerce power which is the authorizing part of the constitution under which the controlled substance act is passed to reach this particular class of activity so they go for heroin too possession whether what the purpose of the possession is and in this case the class and the purpose of that class has been defined by the state of california as well as by other states so if we were ever faced with a case in which i make several one state or several states had identified a particular class of conduct or particular use of merrill heroin for example for medical purposes we would then be faced with the same argument here because i thought that the question here arose under federal what the appropriate relevant class is for determining whether it is within or without congress commerce power to reach and in previous cases for example and work reverses filburn where the class of activities to congress before to reach was all sale of wheat the court the supreme court chose to analyze homegrown intrastate wheat as the relevant class that it had then to determine whether it in aggregate effects had a substantial effect on interstate commerce and similarly in the mccoy case the i attempted to reach all kinds of conduct but the court the ninth circuit in that case had to identify the relevant class that was under consideration to see whether that was beyond the powers of congress to reach the obvious relevant class here is the medical doesn't the question is whether it reaches a class of wholly intrastate commerce and then it only reaches a class of wholly intrastate commerce if that class of holy intrastate commerce has a substantial effect on interstate commerce and the class that is that issue here the class that has been created is the result of a conflict between in this case the police power exercise of the state of california which we which is not dispositive here your honor but we think it's clearly relevant to identifying what is the salient class just as the individual possession of child pornography was the relevant class in mccoy and the home grown wheat to be consumed on your own farm was a relevant class and in wickard the constitution doesn't speak of those classes either this is got to be a judicial determination and the reason why it has to be a judicial determination is because the two extremes are on acceptable and to handle in the middle has to be a judicial terminate based on common sense and traditional judgment as to what is the relevant class to advise the home grown marijuana different from home home grown marijuana is different than home well it's different than home grown wheat because home grown wheat existed as part of a national market and the court found in record vs filbert that the use of home grown wait wait affect the market because it would reduce the supply we reduce the demand for interstate reet and thereby obstruct the legitimate purpose of congress to regulate the price of it doesn't at least there's no showing that it does for at least two reasons first of all because it's an extremely small amount that's at issue here and the second reason if you found that it was so that we contend that there's no effect on interstate commerce whatsoever in any direction but if this activity had any effect on the argument you know we heard you say extremely small but what we've heard what we heard before in this area was interstate trafficking of cannabis that the interstate that the controlled substances act attempts to reach but let me get to the second reason why even if you were to argue that it is big enough to have some effect on interstate commerce the only effect it could have would be to reduce demand for interstate marijuana or interstate trafficking of marijuana is if this particular narrow specialized demand can be handled solely through intrastate it would reduce demand for interstate and thereby would not conflict with the purpose of the controlled substances ac decision that this court has to make conceding for the sake of argument that if it has any effect at all it would be to slightly reduce demand for interstate cannabis and thereby facilitate the purposes of the controlled substance act which is to prohibit that substance the purpose of the  and record versus filtering was to keep prices up whether the purpose here is to end the practice whatsoever this does not conflict with that purpose but if it had should have any effect at all your honor we argue that it would not be a substantial effect and we also argue that it should that we are at least entitled to hearing we believe this court is entitled to show on the basis of this record to rule that there is no substantial effect but before ruling that there is a substantial effect we believe we should have a hearing on the question when the in which the government is finally forced to explain which they haven't explain intrastate non economic activities that do not have any effect or that they cannot be totally intrastate now on economic activities that are disconnected from the national market that's within their power to regulate and they cannot reach a wholly intrastate economic activities and less in the if it's if it's made and consumed solely within a state if it's something for example somebody makes for themselves people make things for themselves all the time and that the nations for raja's are full of devices people have made for  themselves i don't believe that's the sort of thing that's within the power of the federal government to ban i believe it is within the power of the police power of the states to regulate or prohibit which is what we have why we have a federal system we do have an allegation of responsibilities here straight i think if it were distribution to the public it would be different because if it was distribution to the general public marketing to the general public it could much more easily be considered to be part of a general but this is economics because this is practical purposes it's because it's for medical purposes and it's because it's either limited to that it's either limited to it's either limited to the individuals themselves who who who grow the substance for their own use or it's within a club whose membership this restricted very strictly because this is not general distribution it has a much more limited effect and therefore is more completely interesting intrastate and  a dying cancer patient is able to get through one more day without vomiting and get a decent night's sleep free of pain and spend some quality time with those loved ones because he's using cannabis with his doctor's recommendation is no medical necessity i don't see what you bought and what the supreme court ruled on was whether we can recognize this defense under the common law within the bounds of the statute now the supreme court has said you can't within the statute so now we have to address the question whether this right is protected by the constitution and the government is required to show a compelling interest in order to restrict or or to define one's own concept of existence now the government has not offered any compelling justification to seize this medication from the patients what they  government the court has already decided that there is no legitimate medical use for this substance and i want to address that issue because i think it's very important that we distinguish the finding that congress is making under the controlled substances act by putting marijuana on schedule one and the right they were asserting here the finding made under the controlled substances act is for an entirely different purpose to determine whether a drug should be generally no your honor congress made a finding that there is no currently accepted medical use for marijuana there is a difference that term is really a term of arctics carefully defined  and it's clear that a substance can be put on schedule one even though for an individual patient it would have therapeutic value it would have medical use heroin is a good example of that heroin is on schedule one heroin i in the body shortly after it's ingested and really the only difference between heroin and morphing is the amount that you have to administer to achieve the same effect  so this congress have the right to be wrong about this i mean that's kind of what bothers me well i think they've clearly held in the oakland cannabis case yes they do have the right to be wrong that we're going to defer to used to determine no currently accepted medical use are the chemistry must be known and reproducible there must be adequate safety studies there must be adequate controlled studies proving advocacy it must be accepted by qualified experts and the scientific evidence must be widely available now when you look at those five criteria it is not just a determination that this has no therapeutic value that this will not help any patient and when asked if nation recommends to a particular patient that you're not going to benefit from other conventional medications and i recommend that you use marijuana to control your pain we have a patient now who has no other resources to so the government has acted a total prohibition any access to this one medication that will give him relief and we're saying under those circumstances he has a fundamental constitutional right and the government's got to show some compelling interest in order to restrict or limit that right well you've been invited to try it again i think by justice thomas opinion saying we're not going to rule on the constitutional issues clearly the court is going to address the statutory issues first they have now construed the controlled substances act in such a way that it directly presents this constitutional dilemma and this is a dilemma not presented to the court in glucksberg this is the one opportunity now where we can confront the court with that precise question of whether americans have a fundamental constitutional right to relieve their pain and if the government's to take away the only substance that will relieve their pain the government is going to have to show some compelling justification and there has been no compelling interest asserted in this case please the court mark levin for the united states and all for consolidated appeals the controlled substances act prohibition on the cultivation and distribution of marijuana was a lawful exercise the congressional authority prior to the passage of the compassionate use act in california no right to alter or cabin contrary congressional determination that that very same conduct remained criminal for purposes of federal law that congress put in sort of on schedule i don't believe in on schedule you know i know but could i know it's not good they put the congress decided they were going to put in schedule one from now on and keep diabetics from getting insulin well congress certainly could do that but under the controlled substances act there is a procedure under section eight eleven whereby either the government itself or any interested party can petition to have that substance rescheduled and certainly pursuant to that process insulin would would be rescheduled and there is also a provision twenty one u s c eight seventy seven whereby those judgments are reviewed by the courts of appeals and i would also point out that when the rescheduling determination is made  asked to the rescheduling process so congress recognized when it passed the controlled substances act that they're going to be changes in scientific and medical knowledge that require some changes in the scheduling and sometimes for drugs to be scheduled all together what is the status of rescheduling marijuana from schedule one to something there is my understanding is there is a the most recent petition was denied in two thousand and one by the drug enforcement administration we cited that in our briefs that then surgeon general david satcher on behalf of the department of health and human services recommended that based on the f d a evaluation of the most recent scientific and medical  is i would point out that there was an earlier petition of course that was rescheduling marijuana that was denied in one thousand nine hundred two and then that was appealed to the d c circuit and the d c circuit unanimously up held i don't think the court can look at that class of because the class of activities that fixed the courts must analyze for commerce clause purposes is the class of activities that's defined by congress and i think the supreme court's decision interstate commerce and you know let's look at this quest it's certainly not but this court has repeatedly considered the class of activities that congress has regulated here in a series of decisions from rodriguez camacho to the most recent bramble case and has held all of which were commercial sales of marijuana for normal commercial purposes at every one of those cases and that's not exactly correct your honor respectfully case the court was confronted with marijuana plants rooted in the soil and the pellet in that case of course argued that you had to if you had to look at that particular class of activities because how could marijuana plants to answer to your honor first off in oakland cannabis the court held that the controlled substance act allows for no medical necessity exception and by parity of reasoning if asked the court said in that case you can't even consider that evidence because congress has not allowed that's one thing about the constitution well even if one looks at the compassionate use act in california that x says nothing about limiting the marijuana at issue to california it merely decriminalize this the possession and and cultivation of marijuana by individuals and their personal caregivers a person can grow it in california and transported across state lines they can have it grown for them in other states or mexico for that matter there's nothing in the compassionate use act that limits the activity in question to interstate cultivation or possession and i would also point out your honor that if a state initiative could pack have been the class of activities regulated by congress then any number of other statutes might be called into question this is far from the first dispute between the have well that's true your honor but morrison didn't first off this court has upheld the constitutionality of the controlled substances act following the supreme court's decision in lopez and it was in  decision that the supreme court enunciated the four factor test they did prince and morrison of course was that in that case congress the supreme court said that courts don't blindly add here to congressional findings there has to be a rational basis for a atten even if we looked at i would i would say again that if the supreme court held as it did in oakland cannabis that one cannot even consider the medical evidence with respect to medical necessity it necessarily follows that one can't then consider that evidence for purposes of engaging in a commerce clause analysis again it's the class of activities that's right that set forth by congress not by the states for an appellant but were important for instance findings making intrastate possession and distribution of cultivation to interstate commerce i would also point out your honor that let's take if we take a look at congress's findings even even even considering the class proposed the analysis wouldn't change in this case they posit a class of noncommercial activities and yet we have evidence in the record which the district court credited whereby each of the three  there is not a one for one transfer of funds for the marijuana they get does except moneys or people are encouraged to contribute to the woman's alliance and so it's not as morrison the court found there wasn't money involved the simple possession of a handgun in a in a school zone the court found did not involve any economic activity i would note that i'm going to  i would also point out your honor that mccoy also focused on the fact that the photograph at issue in that case was not fungible in this case congress has found that controlled substances that are cultivated or possessed intrastate cannot be differentiated from controlled substances possessed or cultivated interest states and that therefore it was necessary to include to control or regulate the entire area to affect interstate commerce and i would point out that in the old underlying fit circuit decision and lopez the fifth circuit noted that distinction between the drug free schools act and the controlled substances act and noted that ask compared to guns drugs are  decide whatever congress said right whether this is the relationship to interstate commerce in the use of this medical marijuana that well that's right except my my only disagreement your honor is that i don't think the relevant class of activities say the relevant class of activities is growing marijuana for my personal use in my backyard to say nothing of medicinal use medicinal use doesn't add anything to the analysis and the supreme court as i said in more in oakland cannabis made clear that under the statute that evidence can even be considered now resolution of the legal issues in this case involves a straightforward application of this let me turn just turn briefly to the tenth amendment argument because i know that that hasn't been discussed but the can the conclusion that congress's commerce clause or that the controlled substances act is a lawful exercise of congress's commerce clause authority disposes of the tenth amendment argument and the supreme court made clear in the hotel versus virginia surface mining case that the supremacy clause permits no other result and this is not a case of federal commandeering the united states is not requiring state legislatures to enact any laws or commandeering state officials and i think the best example of that was noted by judge fogel in his recent county of santa cruz case following the execution of the search warrant in two thousand and two at the woman's alliance the chief of police of san jose removed his officers from a joint federal state task force and the fact that he had every right to do so in the federal government had no right to compel him to reinstate those officers demonstrates that there's no federal commandeering in this case i would also note just by way of passing we pointed out in our briefs that even on their own even on their own terms the appellant's tenth amendment analysis fails because the california courts have held that the compassionate use act does not decriminalize the distribution of marijuana which is the conduct at issue with respect to the three clubs and it's more weak and it's more recent decision and people versus go law so the conduct issue here is not simply unlawful for purposes of federal law it also remains unlawful for purposes of state law and the caliph state of california has indeed prosecuted individuals for engaging in the very same conduct that has been that is at issue here so let me briefly turn to the fundamental rights argument we submit that this decision this court's decision carnahan disposes of that issue and in carnahan this court held that constitutional rights of privacy and personal liberty do not give anyone the right to obtain lay a troll and by extension other unapproved drugs or substances to create a lawful exercise of the government's police power this court cited the ten circuits decision and rutherford making the same point and the california supreme court's decision in people versus privet tara and i would note your honour's that following the passage of the compassionate use to act the california court of appeal and people vs the aco held that notwithstanding that act it remains the case that there is no federal or state constitutional right to obtain marijuana or other unapproved substances so it's not just simply we're at the case that there's no federal federal constitutional right the passage of that initiative did not create a fundamental right for purpose of the purposes of state law and that the mere decriminalization of an activity doesn't transform that activity terminally ill cancer patient who wanted to use later which he believed would save his life and in rutherford again it was a class of terminally ill cancer patients so in that case the court was confronted with a claim that the substance would not only or merely give palliative care but actually could save the life of that individual and this court in carnahan in the tenth circuit in rutherford nonetheless held that there was no fundamental right i claim was that this was the only possible way to save that person's life and what the court said is if one has to go through the administrative processes under the f t c a if one wants to have that drug rescheduled or that later what's in a controlled substance but one there is a proper forum for people to go through to change the congressional determination of marijuana i think i think that that's a question that the supreme court has left open in the assisted suicide cases but i thought i think in those cases the court made clear that you had to look at a much greater degree of specificity at the conduct at issue because case the claim there was that we were trying to relieve pain and the court said no you think that relevant class was the right to a suicide and thereby the right to obtain the aid of a physician in attending that  and i would submit that the relevant class here is the right to a particular to use a particular drug for treatment marijuana it's not simply the right to alleviate pa question of whether that's a right to use a particular grow the you to end your pain we the answer is you have but that there is a right to treatment but there is not a right to unapproved drugs to treat pain and i think that this court so held in carnahan and i would point out that i think professor allman conceded that the scope of their fundamental rights analysis would extend not just to marijuana but to appropriate standard because we don't agree that there is a fundamental right issue and therefore it's rational basis for it be that this missed this court must consider the statute and i would point this court to the second circuit an administrative hearing can be held any interest that party can put on evidence and that decision then can be reviewed by a court of appeals so that is that as as i said is the very antithesis of the irrationality that at least immunity under twenty one u s c section eighty five as judge pryor found below and is just fogle has recently found in the county of santa cruz case a local law that expressly authorizes that which the controlled substances ac injunctions in this case and force the government to go criminally i don't believe that's a serious argument the supreme court made clear in oakland cannabis that one can choose between not enforcement of the statute and enforcement but just which the different means of enforcement the government may select and counsel for the open cannabis cooperative at excerpts of record page forty three eighty six make clear that she wasn't asking the court to have the government go criminally against them so i would submit that that is not a serious argument that's being made in addition the marine alliance defendant the defendants expressly disavowed that argument and said that we are happy we're not happy that the government took action against you for i get involved in some of the other points that were raised by mr quinlivan i want to read for the court the excerpt of the declaration of valerie coral that he has referred to in his statement the relevant portion of which reads when is supported by voluntary contributions from patients and others that the availability of met medicinal marijuana for a patient is not dependent upon are related to their financial contributions donations of time or money by patients are completely voluntary based upon a patient's own assessment of their ability this clearly does not this sort of acceptance of contributions which every institution of some sort of another must get funds in order to survive does not turn the lamb parties into a commercial activity also have a website where they sold various products to the soaps isn't true well those activities are commercial but the question is whether the activities that are at issue here for which they're being prosecute not being prosecuted for those activities what about the scheme where you go to a place and there's a price list on the wall on a counter of merchandise and you exchange money there this is that is a different case your honor and that's my client's and that's a different case th the lamp case i think it's important i'm going to answer the question but i do think it's important for this court to do to keep the wham parties separate in the way they've organized their their distribution from the way that way that the open parties have and i think the clearly not commercial the open case is a culture question because there is money in some sense changing hands and it's the mere fact of money changing hands in return for substances make something commercial then then arguably this could be on the economic side of the line at which case then you have to apply the substantial effects test under wickard and morrison but we argue that that would alone is not enough here it is a cooperative in which the only people who are entitled to medical cannabis are members cooperative is the members the allocation of the money is simply a part a way in which this group activity takes place and very specific about a country club i mean only the members of the club can play golf and he would say it's not commercial right if i don't see it i don't have it in front of me but as i recall justice thomas said that they are they were not considering any of the constitutional questions because they had not been considered by the court below and they were only deciding the issue of medical necessity we need your use of which says if a power is an attribute of state sovereignty reserved by the tenth amendment it is necessarily a power the constitution has not conferred on congress so we do not claim that somehow state activities are supreme or somehow trump the proper exercise of government power whether the the government is exercising proper power as applied to the class of conduct in this case is the question and if they were exercising power over interstate commerce that would be the end of the question but because they have chosen to reach inside a state and address a class of activities that was wholly intrastate that raises the question of whether they've now acted improperly under the necessary and proper clause and they are not allowed to do so under the supremacy clause or any other clause in the