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With little success to show for their efforts to get federal courts to recognize medical marijuana, advocates arrived at the Ninth Circuit U.S. Court of Appeals on Tuesday hoping that a honed argument might finally score them a win. Their reception was lukewarm, however. The government’s lawyer was able to breeze through his presentation so quickly that Judge Harry Pregerson spent some time quizzing him about the ingredients in pigeon feed and a recent newspaper article he’d read. The plaintiffs, Angel McClary Raich and Diane Monson, want an injunction to prevent the federal government from confiscating a small number of marijuana plants grown in their homes for medical use. The case is the latest in a number of challenges to federal drug policy under the Supreme Court’s recent Commerce Clause jurisprudence. But with the marijuana grown and used at home exclusively by the patient, Raich and Monson argue that this case is distinguishable from others involving medical marijuana shops or collectives, where money or services change hands. “This case involves completely intrastate, wholly non-economic activity,” said Boston University law professor Randy Barnett, arguing for the plaintiffs. The argument rests on Lopez and Morrison, two recent Supreme Court cases that rolled back Congress’s power under the Commerce Clause. Those cases have formed the basis for challenges to a number of federal criminal statutes, with lawyers arguing that the laws have only an attenuated connection to commerce. Barnett hammered that home. “Here we have no money changing hands, we have no commercial activity, and for that reason we have a clean case.” Barnett also hopes a March decision by the Ninth Circuit, United States v. McCoy, 03 C.D.O.S. 2483, can put him over the top. In that “as applied” challenge, a divided panel prevented the prosecution of a woman for possession of child pornography. The panel held that the simple fact that the film and camera used were once in commerce was not enough to trigger federal jurisdiction under the Commerce Clause. “I don’t think McCoy helps them at all,” said Justice Department lawyer Mark Quinlivan, pointing to past Ninth Circuit rulings upholding the Controlled Substances Act. “The court will not reverse its precedent unless close on point.” U.S. District Judge Martin Jenkins tossed Raich v. Ashcroft, 03-15481, just 10 days before McCoy was released. Quinlivan said Jenkins held that “the legal questions involve a straightforward application of the Supreme Court’s and this court’s precedents.” One of the plaintiffs’ bigger hurdles appears to be Wickard v. Filburn, 317 U.S. 111. There, the Supreme Court decided that the wheat a farmer grew for his own family was also “in commerce” — even though it was never sold — because Roscoe Filburn would have had to buy wheat if he hadn’t grown it at home. “There’s no question that Mr. Filburn was engaged in the commercial activity of farming,” Barnett argued, saying there must be a line somewhere where private activity cannot be considered commercial. He said Raich and Monson’s marijuana plants were on the other side of that line — “just as cooking food in your own home to provide nourishment and keep yourself alive is on the other side of the line.” Quinlivan argued that the court should not upend years of jurisprudence upholding the Controlled Substance Act. “Yeah,” said Pregerson, “but all these Commerce Clause arguments, they just arose in the last few years.” Since then, “the Supreme Court has narrowed the scope of the Commerce Clause.” Pregerson was joined on the panel by Judge Richard Paez and Senior Eighth Circuit Judge C. Arlen Beam, sitting by designation. Pregerson seemed somewhat sympathetic to Barnett’s arguments, beginning by asking him to define the precise type of activity he wanted the court to protect. Paez, however, had a question that seemed to momentarily stun Barnett: “Where’d they get the seeds?” After a pause, Barnett answered that they came from within California.

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