When thirty federal Drug Enforcement Administration (DEA) agents armed with M-16s (1) burst into a medical marijuana hospice in Santa Cruz, California, on September 5, 2002, arresting the two owners and a wheelchair-bound patient disabled by polio, (2) they propelled an already contentious debate between the federal government and state leaders to new heights. (3) In response, Santa Cruz officials, who had "cooperated closely" with the hospice for six years, (4) "issued a provocative public challenge" to the DEA by organizing an event to distribute medical marijuana on the steps of City Hall. (5) Mayor Christopher Krohn, who attended the event alongside city council members, said that "[c]learly, state law and federal law are on a collision course" and vowed to stand by the hospice until federal law changed. (6) Vice-Mayor Emily Reilly went even further, calling it "absolutely loathsome ... that federal money, energy and staff time would be used to harass people like this." (7)

The outrage spread quickly from Santa Cruz to other parts of California. Patients organized protests across the state, and "State Attorney General Bill Lockyer protested and demanded a meeting with [U.S. Attorney General John] Ashcroft." (8) Just a few weeks after the Santa Cruz City Hall event, San Jose Police Chief William Lansdowne removed his officers from the DEA's High Intensity Drug Trafficking Area task force in protest. (9) Officials in other California cities followed San Jose's lead and asked their police officers to "stop cooperating with federal agents." (10) By November 2002, Berkeley, San Francisco, and Sebastopol had all passed "anti-DEA resolutions." (11)

Tensions between states and the federal government over medical marijuana are not limited to California. Since 1096, nine states have legalized marijuana for medical use, (12) a figure which is likely to increase in the coming years given the overwhelming support for medical marijuana among voters (13) and drug policy reform leaders' continuing focus on state ballot initiatives. The systemic problems in changing drug laws through legislatures, particularly at the federal level, (14) make further local and state initiative efforts even more probable.

On the federal side, early efforts to stop medical marijuana by keeping physicians from recommending the drug (15) or obtaining injunctions against medical marijuana dispensaries (16) have given way to full-blown raids like the one in Santa Cruz. As a candidate, President George W. Bush said he thought the federal government should respect state decisions on medical marijuana. (17) However, his drug czar John Walters, former DEA chief Asa Hutchinson, and current DEA Administrator John B. Brown III have done just the opposite and intensified federal efforts to suppress marijuana use and fight states that allow medical marijuana. (18) Walters views marijuana as a "pernicious" drug with "destructive effects" and argues that medical marijuana supporters are involved in a "cynical campaign ... [that] is part of the drug legalization agenda." (19)

The federal government has also shown renewed interest in bringing criminal charges against particular medical marijuana growers. In February 2003, Ed Rosenthal, a long-time drug policy reform activist who writes for the magazine High Times, was convicted of three federal counts of marijuana cultivation and conspiracy. (20) Rosenthal was growing medical marijuana as a designated agent of the city of Oakland. However, district court Judge Charles R. Breyer--who also heard the Oakland Cannabis Buyers' Cooperative case (21)--barred all evidence relating to Proposition 215 (22), and Rosenthal's purpose in growing marijuana. Upon learning of the excluded evidence after the trial, five jurors issued a public apology to Rosenthal and called for the conviction to be overturned. (23) Juror Marney Craig said that convicting Rosenthal was "the most horrible mistake I've ever made in my entire life. And I don't think that I personally will ever recover from this." (24)

In the face of continuing federal opposition after a loss in the Supreme Court on the issue of medical necessity, (25) medical marijuana advocates have turned toward arguments concerning limits on federal power and placed the issue at the center of two recent California lawsuits. In one, Santa Cruz hospice founders Valerie and Michael Corral are demanding that the federal government return all items seized during the September 5 raid--including the marijuana--arguing that their activity was purely intrastate and thus beyond federal authority. (26) In the other case, two patients and two care givers are seeking an injunction to prevent the federal government from arresting or prosecuting them for their medical-marijuana-related activity. (27) The plaintiffs contend that they "exclusively [use] growing equipment, supplies and materials manufactured within the borders of the State of California." (28) The issues in these cases may pose challenging Commerce Clause questions, but a variety of factors indicate it is unlikely they, or any other effort to limit federal power in the case of private medical marijuana distribution, will ultimately succeed. (29)

Medical marijuana proponents who think "the federal government should stay out of the way" (30) should look to state and local distribution schemes as their best opportunity to place their conduct outside federal reach. There are already indications that movement leaders and frustrated local officials view this as the emerging approach. In the 2002 elections, San Franciscans approved a measure directing the city to "study growing and dispensing marijuana for medical purposes in response to federal crackdowns." (31) Two years earlier, the Maine state legislature considered implementing a program that would have distributed marijuana confiscated by the State during regular drug arrests to patients. One of the principle supporters of the idea, Cumberland County Sheriff Mark N. Dion, asked, "Shall we as a sovereign state be held hostage by the federal government simply because we intend to treat our sick and afflicted?" (32) A similar proposal was included in a defeated 2002 Arizona ballot initiative that featured a number of other drug policy reforms, such as decriminalization of marijuana for recreational use. (33)

The response to federal medical marijuana policy, both from private individuals operating legally under state law and those who argue for state-run distribution schemes, poses a distinct set of problems under the new Commerce Clause doctrine. In the two most famous Commerce Clause cases of the last ten years, United States v. Lopez (34) and United States v. Morrison, (35) the Supreme Court overturned federal statutes that were by and large supported by the states in which they operated. (36) In each case, the challenges were brought by private individuals, not the states themselves. One commentator has referred to the statutes overturned in those cases as "duplicative federal legislation" and has argued that "[t]he Court accomplishes little when it intervenes to protect the states" in such situations. (37) By contrast, the fight over medical marijuana involves conduct that is prohibited by the federal government but affirmatively allowed under state law. Under state or local distribution regimes, government officials themselves would participate in activity that is criminal under federal law.

This Comment looks at the future of the medical marijuana debate by considering federal power under the Commerce Clause to reach state-run medical marijuana distribution under a hypothetical program similar to those proposed in Maine, Arizona, and San Francisco. Part I discusses the history and present state of the modern medical marijuana movement. Part II provides a summary and discussion of federalism principles, in particular the Commerce Clause doctrine. Part III examines the Controlled Substances Act, the federal law which regulates marijuana, as well as the difficulties that face Commerce Clause challenges under existing state medical marijuana laws. Part IV proposes a hypothetical state-run medical marijuana regulatory program and analyzes whether the federal government could constitutionally outlaw such a program. The Comment concludes that medical marijuana advocates should focus on enacting regimes run by state or local governments in the future as providing the strongest potential for protection against federal intervention.

I. A BRIEF HISTORY OF FEDERAL AND STATE RESPONSES TO MEDICAL MARIJUANA

The debate in the United States over the medicinal value of marijuana dates back to the middle of the 1800s. (38) Although there was never a consensus on the extent of its efficacy, marijuana was generally thought to have some therapeutic value and was included in the United States Pharmacopeia until 1941. (39) Marijuana use and distribution, medical or otherwise, was not significantly regulated by the federal government until the Marihuana Tax Act of 1937. (40) The tax essentially amounted to a prohibition for recreational users who had to pay a fee of $100 an ounce, (41) which was significantly more than the cost of the marijuana itself. On its face, the Act was much more accepting of medical use of marijuana and taxed registered medical marijuana transactions at only one dollar an ounce. (42) Nevertheless, "the law made medical use of cannabis difficult because of the extensive paperwork required of doctors who wanted to use it." (43) When Congress was considering the Act, the American Medical Association representative objected to it "because he believed that its ultimate effect would be to strangle any medical use of marihuana," (44) and indeed shortly after its enactment, "medical distribution of the drug had all but disappeared." (45)

While effectively eliminated, medical marijuana use and distribution was still technically allowed under the Marihuana Tax Act until the passage of the Controlled Substances Act (CSA) in 1970. (46) The CSA was passed in large part because President Nixon saw regulation of the drug trade as an opportunity for the federal government to satisfy public demand to get tough on crime. (47) "[H]aving won the election on a law-and-order promise, Nixon had to create a federal role in policing street crime." (48) His aides settled on policing drug use not only because it could be tied to the common problem of street crime, but also because, unlike other local crimes, it involved interstate commerce. (49) It was in this context that marijuana was placed in Schedule I, (50) the CSA category of drugs with a high potential for abuse and no currently accepted medical use. (51)

In the aftermath of the CSA, drug policy reformers began promoting medical marijuana legalization. The idea had already gained renewed interest in the late 1960s, as dramatic increases in recreational use led many to accidentally stumble upon marijuana's medical utility. (52) In the late 1970s and early 1980s, thirty-three states passed medical marijuana laws; (53) however, they were very different than the state legislation disputed today. Instead of allowing large scale use or distribution programs in violation of the CSA, the majority of these state laws established therapeutic research programs that were officially approved by the federal government under the FDA's Investigational New Drug (IND) program. (54) These state programs were disbanded in 1986 when the FDA approved the drug Marinol, a synthetic version of one of marijuana's main chemicals, tetrahydrocannabinol, commonly known as THC. (55)

Because of the difficulty states faced in implementing IND programs, a simultaneous effort emerged to allow individual patients access to marijuana. Glaucoma patient Bob Randall was the first to obtain such individualized permission when, entirely as a result of Randall's struggle, the federal government created the "Compassionate IND" program. (56) The program theoretically made it possible for patients to access medical marijuana through their doctors, though the application process was not easy. INDs were never intended to facilitate medical care for individual patients, but rather were designed as a mechanism for pharmaceutical companies to "assure the safety of new drugs." (57) Because the Compassionate IND program operated under this same structure, it required a level of paperwork and procedural know-how that made it nearly impossible for the average patient or doctor to gain access. By the time the Compassionate IND program was discontinued in March of 1992, there were only thirteen qualified patients. (58) Today, the remaining seven patients continue to receive a regular supply of medical marijuana directly from the federal government. (59)

While the IND programs offered assistance to a limited number of patients, medical marijuana advocates did not see the programs as long-term solutions. Instead, most medical marijuana advocates of the 1970s argued outright to decriminalize marijuana, which, of course, would have made laws specifically covering medicinal use unnecessary. (60) In addition to political lobbying efforts, the National Organization for the Reform of Marijuana Laws (NORML) filed an administrative action in 1972 to move marijuana to a more lenient classification under the CSA. (61) Initially, the petition sought to remove marijuana from the CSA entirely or, alternatively, to transfer it from Schedule I to Schedule V, (62) the least restrictive schedule, which covers drugs that have a low potential for abuse and are currently accepted for medical use. (63) The government refused to hold a hearing on the subject, and NORML sued to force a rulemaking proceeding. (64) After a complex and lengthy legal battle, hearings were held in 1986 before Administrative Law Judge Francis Young, who concluded that marijuana is "one of the safest therapeutically active substances known to man" and recommended it be placed in Schedule II. (65) Administrator John C. Lawn denied the recommendation one year later, (66) resulting in further litigation until the matter was finally resolved in favor of the DEA in 1994. (67)

Alter the resolution of NORML's rescheduling petition, the possibility of a medical marijuana system at the federal level was not promising. Advocates adopted a new strategy and, in 1996, placed initiatives on the ballot in California and Arizona to decriminalize medical marijuana under state law, without regard to federal policy. Both initiatives passed, but the Arizona legislature effectively nullified the result in its state by putting prescribing doctors at risk of losing their licenses. (68) In California, however, in addition to allowing for medicinal use, the law permitted designated caregivers to grow marijuana for patients. (69) Although California state courts have held that the provision does not shield marijuana dispensaries, (70) custom and support from local officials have practically legalized the activity for purposes of state law enforcement. (71) The developing state system has thereby effectively ceded enforcement of all medical-marijuana-related activity, including distribution and growth, to the federal government.

The federal response to California's initiative included strategies aimed at both marijuana dispensaries and physicians. Just over a year after the passage of California's medical marijuana law, the federal government sought to enjoin the cultivation and distribution of marijuana by six different medical marijuana dispensaries. (72) The Ninth Circuit reversed the district court's order upholding the injunction, finding that the medical necessity defense would likely apply to Oakland Cannabis Buyers' Cooperative's (OCBC) actions. (73) The Supreme Court reversed, finding that medical necessity was not a valid defense for the manufacture and distribution of marijuana because the legislature itself had "le[ft] no doubt that the defense [was] unavailable." (74) The Court did not consider "whether the Controlled Substances Act exceeds Congress' power under the Commerce Clause." (75) On remand, the district court issued a permanent injunction against OCBC. (76)

In addition to taking action against individual dispensaries, the federal government attempted to effectively block the state law entirely by punishing doctors who recommended marijuana. (77) Without a doctor's recommendation, it would be impossible for anyone to qualify as a medical user and receive protection under state law. (78) Shortly after federal officials announced the plan, a group of California doctors and patients filed suit to enjoin its implementation. (79) Unanimously upholding a district court ruling, the Ninth Circuit permanently enjoined the federal government "from either revoking a physician's license to prescribe controlled substances or conducting an investigation of a physician that might lead to such revocation, where the basis for the government's action is solely the physician's professional 'recommendation' of the use of medical marijuana." (80) The court ruled that the proposed investigations into physician recommendations would threaten expression protected by the First Amendment. (81) With physicians free to recommend marijuana, shielding those who receive recommendations from prosecution under state law, the DEA has been left with the daunting task of attacking the California medical marijuana system on a case-by-case basis.

Medical marijuana advocates have enjoyed tremendous success at the state level since 1996, (82) but they continue to have difficulty changing or finding ways to exempt their activity from federal law. Shortly after the passage of Proposition 215, Congress passed a "sense of the Congress" resolution in opposition to medical marijuana; (83) and, given the Bush administration's hostility toward medical marijuana, (84) federal efforts to circumvent state medical marijuana laws will likely continue. Nonetheless, the Ninth Circuit's holding in Conant v. Walters severely limits the ease with which the federal government can achieve these goals. Because the DEA is unlikely to target medical marijuana users themselves, (85) state medical-marijuana-decriminalization measures can prove useful to some patients despite federal limitations on distribution and manufacture. At the same time, however, these state laws offer little help to patients who cannot obtain marijuana from the black market or cultivate their own. Often, procuring marijuana through such means is difficult due to the severity of the illness. (86) Without reliable methods of distributing medical marijuana, state medical marijuana laws are often least effective for the primary population they are designed to help.

For these reasons, efforts to avoid federal regulation and to establish reliable distribution programs continue even in areas where state and local law affords private marijuana distributors significant protection. (87) Short of changing federal law, recent Commerce Clause cases provide the best opportunity for the establishment of a completely legal medical marijuana distribution system. If successful, a Commerce Clause challenge might allow state-approved distribution systems to operate free of federal interference. The following Part reviews the current state of Commerce Clause doctrine to provide a context in which the potential for such a challenge can be analyzed.

II. FEDERAL POWER AND STATES' RIGHTS

A. Commerce Clause

In 1937, the Supreme Court upheld the National Labor Relations Act as a constitutional exercise of Congress's Commerce Clause power to regulate interstate commerce. (88) The decision marked a dramatic shift away from the previous "direct-indirect" Commerce Clause standard, (89) under which key pieces of President Roosevelt's New Deal were struck down, (90) and toward a more "practical conception of the commerce power." (91) This practical conception focuses on whether there is a rational basis for finding that the regulated activity, in the aggregate, substantially affects interstate commerce. (92)

The implications of the Court's new standard became clear in Wickard v. Filburn, decided in 1942. (93) Filburn, a wheat farmer, sought to enjoin the government from enforcing against him the Agricultural Adjustment Act of 1938, (94) which aimed to stabilize the price of wheat by regulating its intrastate production. (95) Filburn exceeded his acreage allotment, using the additional wheat to feed his livestock and to produce home-consumed flour. (96) The Court held that applying the Act to Filburn was a lawful exercise of congressional power under the Commerce Clause, even though it covered "production not intended in any part for commerce but wholly for consumption on the farm" and the "[p]enalties d[id] not depend upon whether any part of the wheat, either within or without the quota, [was] sold or intended to be sold." (97) The Court argued that regulating intrastate activity like Filburn's was vital to the proper functioning of Congress's regulation of national wheat prices and that such activity, in the aggregate, had a substantial effect on interstate commerce. (98) If every farmer were allowed to produce unlimited supplies of wheat for personal consumption, the government would not have been able to raise the price of wheat in the national market. (99)

Even after Wickard, the Court occasionally relied on other theories in Commerce Clause cases, such as whether an item had moved in interstate commerce. In United States v. Sullivan, the Court upheld the conviction of a pharmacist for selling a total of twenty-four pills on two separate occasions without statutorily required directions for use or warnings of danger. (100) The Court found it was within the Commerce Clause power "to regulate the branding of articles that have completed an interstate shipment and are being held for future sales in purely local or intrastate commerce" because the articles had moved in interstate commerce. (101) Wickard's aggregation principle, in combination with the substantial effects doctrine, seemed to give Congress almost limitless power under the Commerce Clause, and for over fifty years every statute faced with a Commerce Clause challenge was upheld. (102)

   First, Congress may regulate the use of the channels of interstate
   commerce. Second, Congress is empowered to regulate and protect the                                                                    
   instrumentalities of interstate commerce, or persons or things in 
   interstate commerce, even though the threat may come only from    
   intrastate activities. Finally, 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. (111)                   

   The Act establishes only a minimum wage and a maximum limit of hours                                                                   
   unless overtime wages are paid, and does not otherwise affect the 
   way in which school and hospital duties are performed. Thus       
   appellants' characterization of the question in this case as      
   whether Congress may, under the guise of the commerce power,      
   tell the States how to perform medical and educational functions  
   is not factually accurate. (147)                                  

   The legitimacy of the Court's current emphasis on the noncommercial                                                                    
   nature of regulated activity, then, does not turn on any logic    
   serving the text of the Commerce Clause.... The essential issue is
   rather the strength of the majority's claim to have a constitutional                                                                   
   warrant for its current conception of a federal relationship      
   enforceable by this Court through limits on otherwise plenary     
   commerce power. (165)                                             

   To hold that the Controlled Substances Act is unconstitutional as 
   applied here would mean that in every action in which a plaintiff 
   seeks to prove a defendant violated federal law, an element of    
   every case-in-chief would be that the defendant's specific conduct
   at issue, based on facts proved at an evidentiary hearing or trial,                                                                    
   substantially affected interstate commerce. (193)                 

   I believe the federal government's policy runs afoul of the       
   "commandeering" doctrine announced by the Supreme Court.... Applied                                                                    
   to our situation, this means that, much as the federal government 
   may prefer that California keep medical marijuana illegal, it cannot                                                                   
   force the state to do so. Yet, the effect of the federal          
   government's policy is precisely 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 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.                                                         

   Justice Breyer's rationale lacks any real limits because, depending                                                                    
   on the level of generality, any activity can be looked upon as    
   commercial. Under the dissent's rationale, Congress could just as 
   easily look at child rearing as [commercial].... We do not doubt  
   that Congress has authority under the Commerce Clause to regulate 
   numerous commercial activities that substantially affect interstate                                                                    
   commerce and also affect the educational process. That authority, 
   though broad, does not include the authority to regulate each and 
   every aspect of local schools.                                    

   A hard and fast rule that the presence of a jurisdictional element
   automatically ensures the constitutionality of a statute ignores  
   the fact that the connection between the activity regulated and   
   the jurisdictional hook may be so attenuated as to fail to        
   guarantee that the activity regulated has a substantial effect on 
   interstate commerce.                                              

   [M]any courts have applied the Wickard principle to criminal      
   statutes, concluding that suppressing the intrastate demand       
   for a good (for example, by criminalizing possession of guns      
   or drugs) would have a substantial impact on interstate commerce  
   by affecting the supply of that good. In many cases, this         
   will be a reasonable assumption. We note, however, that [this]    
   economic model is different from Wickard's substitution analysis, 
   a fact that many courts have glossed over.