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Medical marijuana clubs face an uncertain future now that U.S. District Judge Charles Breyer has turned away arguments that they did not violate federal law. “With or without medical authorization the distribution of marijuana is illegal under federal law,” Breyer, of the Northern District of California, wrote Friday in United States v. Cannabis Cultivator’s Club, 98-0085. “Defendant’s other objections are equally without merit.” Without further court action, medical marijuana clubs will no longer be allowed to distribute marijuana, even to patients under a doctor’s care. The ruling does not affect the personal cultivation or use of medical marijuana, which is allowed under California’s Proposition 215. The defenses raised by lawyers for the marijuana club had previously been foreclosed by Breyer, but the 9th U.S. Circuit Court of Appeals reversed, saying defendants could raise a defense of medical necessity. In turn, the U.S. Supreme Court reversed, holding that a medical necessity defense was not an exception to the Controlled Substances Act. One new defense that Breyer did address was that Congress cannot regulate the intrastate distribution of drugs through the Commerce Clause. To support the position, the defense cited United States v. Morrison, 529 U.S. 598, in which the Supreme Court struck down the civil remedy provision of the Violence Against Women Act, which Congress enacted under the Commerce Clause. But Breyer soundly rejected that argument. “Unlike violence, the manufacture and distribution of marijuana is economic activity,” he wrote. However, Breyer did not issue an injunction in the case. The next step will be for the defendants to submit declarations as to whether they will continue to sell marijuana. If they do not desist, Breyer will likely grant the government the injunction it seeks.

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