No. 00-151 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA, PETITIONER 

v. 

OAKLAND CANNABIS BUYERS’ COOPERATIVE 
AND JEFFREY JONES 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

REPLY BRIEF FOR THE PETITIONER 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

TABLE OF AUTHORITIES 

Cases: Page 

Camps Newfound/Owatonna, Inc. v. Town of 

Harrison, 520 U.S. 564 (1997) ............................................ 
12 

Carnohan v. United States, 616 F.2d 1120 (9th Cir. 
1980) ......................................................................................... 16 

Cleburne v. Cleburne Living Ctr., 473 U.S. 432 
(1985) ........................................................................................ 20 

Employment Div., Dep’t of Human Res. of Or. 

v. Smith, 494 U.S. 872 (1990) ............................................. 

16, 19 

FDA v. Brown & Williamson Tobacco Corp., 523 

U.S. 120 (2000) ........................................................................ 

17 

Hodel v. Virginia Surface Mining & Reclamation 

Ass’n, 452 U.S. 264 (1981) ................................................... 

14 

Holloway v. United States, 526 U.S. 1 (1999) ................... 
5 

Horning v. District of Columbia, 254 U.S. 135 
(1920) ........................................................................................ 10 

Kuromiya v. United States, 78 F. Supp. 2d 367 
(E.D. Pa. 1999) ........................................................................ 

7, 17 

Maryland v. Wirtz, 392 U.S. 183 (1968) ............................ 
13 

Mitchell v. Clayton, 995 F.2d 772 (7th Cir. 1993) ............ 
16 

National Treasury Employees Union v. Von Raab, 
489 U.S. 656 (1989) ................................................................ 
19 

New York v. United States, 505 U.S. 144 (1992) .............. 
14 

People v. Peron, 70 Cal. Rptr. 2d 20 (1997) ....................... 
16 

Perez v. United States, 402 U.S. 146 (1971) ...................... 
13 

Reno v. Condon, 528 U.S. 141 ............................................. 
14, 15 

Rutherford v. United States, 616 F.2d 455 (10th 

Cir.), cert. denied, 449 U.S. 937 (1980) ............................... 

16-17 

United States v. Brown, 72 F.3d 96 (8th Cir. 1995), 
cert. denied, 518 U.S. 1033 (1996) ....................................... 
11-12 

United States v. Clark, 67 F.3d 1154 (5th Cir. 
1995), cert. denied, 517 U.S. 1141 (1996) ........................... 
11 

United States v. Darby, 312 U.S. 100 (1941) ..................... 13, 14 

(I) 

II 

Cases—Continued: Page 

United States v. Edwards, 101 F.3d 17 (2d Cir. 
1996) ......................................................................................... 10 

United States v. Edwards, 98 F.3d 1364 (D.C. Cir. 
1996), cert. denied, 520 U.S. 1170 (1997) ........................... 

11 

United States v. Genao, 79 F.3d 1333 (2d Cir. 
1996) ......................................................................................... 11 

United States v. Jackson, 111 F.3d 101 (11th Cir.), 
cert. denied, 522 U.S. 878 (1997) ......................................... 

12 

United States v. Lerebours, 87 F.3d 582 (1st Cir. 
1996), cert. denied, 519 U.S. 1060 (1997) ........................... 
11, 15 

United States v. Leshuk, 65 F.3d 1105 (4th Cir. 
1995) ......................................................................................... 11 

United States v. Lopez, 514 U.S. 549 (1995) .................... 

12, 13 

United States v. Moore, 423 U.S. 122 (1975) ..................... 
3, 17 

United States v. Morrison, 529 U.S. 598 (2000) ............... 
12, 13 

United States v. Orozco, 98 F.3d 105 (3d Cir. 
1996) ......................................................................................... 
11, 12 

United States v. Owens, 996 F.2d 59 (5th Cir. 
1993) ......................................................................................... 15 

United States v. Rogers, 89 F.3d 1326 (7th Cir.), 
cert. denied, 519 U.S. 999 (1996) ......................................... 

12 

United States v. Rutherford, 442 U.S. 544 (1979) ............ 
9 

United States v. Sanchez, 340 U.S. 42 (1950) ................... 
18 

United States v. Tisor, 96 F.3d 370 (9th Cir. 
1996), cert. denied, 519 U.S. 1140 (1997) ........................... 
12 

United States v. Tucker, 90 F.3d 1135 (6th Cir. 
1996) ......................................................................................... 11 

United States v. Wacker, 72 F.3d 1453 (10th Cir. 
1995), cert. denied, 523 U.S. 1035 (1998) ........................... 

12 

United States v. Walsh, 331 U.S. 432 (1947) ..................... 
17 

United States v. Westbrook, 125 F.3d 996 (7th 

Cir.), cert. denied, 522 U.S. 1036 (1997) ............................. 

11, 15 

Washington v. Glucksberg, 521 U.S. 702 (1997) ............... 
16, 19 

Weinberger v. Hynson, Westcott & Dunning, Inc., 
412 U.S. 609 (1973) ................................................................ 5 

III 

Cases—Continued: Page 

Whitman v. American Trucking Ass’ns, 121 S. Ct. 
903 (2001) ................................................................................. 
11 

Wickard v. Filburn, 317 U.S. 111 (1942) ........................... 
13 

Constitution, statutes and regulations: 

U.S. Const.: 

Art. I, § 8, Cl. 3 (Commerce Clause) ............... 

11, 12, 14, 

Amend. IX .......................................................................... 
11, 16 

Amend. X .................................................................... 
11, 14, 15 

Act of June 29, 1984, Pub. L. No. 98-329, 98 Stat. 
280 ............................................................................................. 6 

Act of Oct. 21, 1998, Pub. L. No. 105-277, Div. F, 
112 Stat. 2681-760: 
112 Stat. 2681-760 to 2681-761 ........................................ 

4 

112 Stat. 2681-761 ............................................................. 
5, 7 

Controlled Substances Act, Pub. L. No. 91-513, 

Tit. II, 84 Stat. 1242 (21 U.S.C. 801 et seq.): 
21 U.S.C. 801(2) ................................................................ 

9 
21 U.S.C. 801(3) ................................................................ 
12, 13 

21 U.S.C. 801(4) ................................................................ 
13 

21 U.S.C. 801(6) ................................................................ 
13 

21 U.S.C. 802(6) ................................................................ 
2 

21 U.S.C. 802(12) .............................................................. 
2 

21 U.S.C. 811 ........................................................... 
2, 4, 6, 19 

21 U.S.C. 812 ..................................................................... 
4 

21 U.S.C. 812(b)(1) ........................................................... 
2, 5 

21 U.S.C. 812(b)(1)(B) ...................................................... 
19 

21 U.S.C. 812(b)(2)-(5) ..................................................... 
2 

21 U.S.C. 812(c) ................................................................. 
6 

21 U.S.C. 821-829 .............................................................. 
3 

21 U.S.C. 823(f) ............................................................. 
2, 6, 19 

21 U.S.C. 841(a)(1) ............................................................ 
1, 2 

21 U.S.C. 877 ..................................................................... 
4, 19 

21 U.S.C. 882 ..................................................................... 
1, 8 

21 U.S.C. 882(b) ................................................................ 10 

IV 

Statutes and regulations—Continued: 
Page 

21 U.S.C. 885(d) ................................................................ 
15 

21 U.S.C. 903 ..................................................................... 
15 

Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 
301 et seq.: 
21 U.S.C. 321(g)(1) ........................................................... 
2 

21 U.S.C. 355 ..................................................................... 
19 

21 U.S.C. 355(i) ............................................................. 
2, 6, 19 

21 U.S.C. 355(h) ................................................................ 
19 

21 U.S.C. 393(b)(2) (1994 & Supp. III 1997) ................ 
17 

Gun-Free School Zones Act of 1990, 18 U.S.C. 
922(q)(1)(A) ............................................................................. 12 

Harrison Narcotics Act, ch. 1, 38 Stat. 785 .......................... 

17 

Hillory J. Farias & Samantha Reid Date-Rape Drug 

Prohibition Act of 2000, Pub. L. No. 106-172, 114 
Stat. 7 ....................................................................................... 

6 
Marihuana Tax Act, ch. 553, 50 Stat. 551 ............................. 
18 

Pure Food and Drugs Act of 1906, ch. 3915, 34 Stat. 
768 ............................................................................................. 17 

Violence Against Women Act of 1994, 42 U.S.C. 
13981 ........................................................................................ 12 

21 C.F.R. 312.22 ........................................................................ 

6 

California Compassionate Use Act of 1996, Cal. 

Health & Safety Code (West 2001): 
§ 11362.5(b)(1)(C) ............................................................. 

16 
§ 11362.5(d) ........................................................................ 
15 

Miscellaneous: 

R. J. Bonnie & C.H. Whitebread, The Marihuana 

Conviction (1974) ................................................................... 

18 

116 Cong. Rec. 1664 (1970) ...................................................... 
6 

H.R. Rep. No. 1444, 91st Cong., 2d Sess. Pt. 1 
(1970) ........................................................................................ 3 

National Comm’n on Marihuana & Drug Abuse, 

Marihuana: A Signal Of Misunderstanding (Mar. 
1972) ......................................................................................... 18 

V 

Miscellaneous—Continued: Page 

37 David L. Cowen, Pharmacy in History: The 

Development of State Pharmaceutical Law (1995) ........ 17 

REPLY BRIEF FOR THE PETITIONER 

The Controlled Substances Act (CSA) bans the unauthor- 
ized distribution of marijuana for all purposes, including 
purported medical uses, 21 U.S.C. 841(a)(1), and authorizes 
courts to enjoin violations of the Act. 21 U.S.C. 882. 
Respondents nonetheless ask this Court to hold that they 
may not be enjoined from distributing marijuana for medical 
purposes, even though marijuana is a schedule I controlled 
substance and has never been approved by the Food and 
Drug Administration (FDA) as safe and effective to treat 
any medical condition. To justify that result, respondents 
argue that the CSA does not clearly preclude a common law 
defense of “medical necessity” (Br. 17-22), that in any event 
a court has equitable power to decline to enjoin the illegal 
distribution of marijuana for medical purposes (Br. 11-17), 
and, finally, that if the CSA does not contain a defense of 
medical necessity then it is unconstitutional (Br. 37-50). 
Each of those arguments lacks merit. 

1. The Act forecloses a common law “medical necessity” 

defense 

a. Respondents argue (Br. 17-21, 28) that a common law 
defense of “medical necessity” is no more precluded by the 
CSA than a common law defense of entrapment or duress. 
But this argument ignores the fact that the common law 
defense of necessity by its own terms exists only where the 
legislature has not manifested a contrary intent. Here, the 
CSA clearly manifests the intent to prohibit the illegal 
distribution of marijuana for claimed medical purposes. 
Respondents urge (Br. 18) the Court to look beyond the 
text of the CSA to “our broader notions of justice and com- 
mon sense,” and contend on this basis (Br. 21-22, 24-25) that, 
while the CSA generally bars the unauthorized distribution 
or use of marijuana, Congress did not intend to bar such 
conduct when a jury determines in a particular case that 

(1) 

2 

marijuana is medically efficacious and that lawful drugs are 
ineffective at treating a user’s pain and suffering. 

But banning marijuana in those circumstances is precisely 
what Congress did do in the CSA, by imposing criminal sanc- 
tions for the distribution of controlled substances—drugs— 
that otherwise could be put to medical use. See 21 U.S.C. 
321(g)(1) (“The term ‘drug’ means * * * articles intended 
for use in the diagnosis, cure, mitigation, treatment, or pre- 
vention of disease in man.”); 21 U.S.C. 802(6) (the term “con- 
trolled substances” means a scheduled “drug”); 21 U.S.C. 
802(12) (incorporating 21 U.S.C. 321(g)(1)). Since its enact- 
ment in 1970, the CSA has made it a crime to “manufacture, 
distribute, or dispense” marijuana, “[e]xcept as authorized 
by” the Act itself (21 U.S.C. 841(a)(1))—i.e., unless the 
person handling the marijuana is registered with the DEA to 
conduct research approved by the FDA (21 U.S.C. 355(i) and 
823(f)), or the Attorney General, after consultation with the 
Secretary of Health and Human Services (HHS), determines 
under 21 U.S.C. 811 that marijuana no longer meets the 
statutory criteria for a schedule I controlled substance of 
having “no currently accepted medical use in treatment in 
the United States,” “a high potential for abuse,” and “a lack 
of accepted safety for use * * * under medical supervision,” 
21 U.S.C. 812(b)(1). 

Consistent with that plain text, the CSA’s structure and 
purposes conclusively demonstrate that Congress did not 
intend to permit juries to excuse the illegal distribution of 
marijuana based on a claimed need to avert medical harm. 
As explained in our opening brief (at 20-23), the CSA 
imposes stringent and uniform controls on the handling of all 
controlled substances, even those drugs that are listed in 
schedules II through V because there is a “currently 
accepted medical use” for the drugs and thus doctors may 
prescribe them to patients, 21 U.S.C. 812(b)(2)-(5). A 
fortiori, Congress did not intend to permit a schedule I drug, 
which has no currently accepted medical use, to be distri- 

3 

buted for medical purposes outside the strict confines of the 
Act itself. 

A “medical necessity” defense would be utterly incon- 
sistent with the provisions of the CSA requiring handlers to 
comply with DEA registration, production quotas, reporting, 
record-keeping, and order-form requirements, and, for 
schedules II through V drugs, prescription requirements. 
21 U.S.C. 821-829. Contrary to respondents’ characteriza- 
tion of those controls as requiring the “bureaucratic compila- 
tion of a paper trail for every transfer of a pill” (Br. 18), 
those controls are essential to effectuate Congress’s intent 
to create a closed system of drug distribution to combat 
the dangers of drug abuse and diversion. H.R. Rep. 
No. 1444, 91st Cong., 2d Sess. Pt. 1, at 3, 6 (1970); see also 
United States v. Moore, 423 U.S. 122, 135, 141 (1975); U.S. 
Br. 4, 21-22.1 

This Court also should take no comfort in respondents’ 
representation (Br. 9, 17-19) that they intend to distribute 
marijuana to only a “minuscule” number of persons who face 
“death, blindness, or starvation.” The Ninth Circuit’s deci- 
sion invites district courts to permit the illegal distribution 
of marijuana to any person who has a “serious medical 
condition[]” and whose physician “certif[ies]” that legal 
drugs “are ineffective” or “result in intolerable side effects.” 
App. 7a, 10a.2 The court’s decision places no limit on the 
number of people to whom respondents may distribute mari- 
juana or the quantity of marijuana that they may distribute, 
either in the aggregate or to particular customers. Even if 

1 By contrast, respondents’ self-imposed “protocols,” which ban smok- 
ing on their premises and require members to receive identification cards, 
undergo screening interviews, and provide a verifiable doctor’s note 
assenting to marijuana “therapy,” Resp. Br. 2 & n.4, bear no resemblance 
to the CSA’s comprehensive and unified set of controls. 

2 The express terms of the district court’s orders on remand do not 
even require a doctor’s certification of medical necessity. See App. 12a- 
17a. 

4 

the recognition of a “medical necessity” defense could be 
confined to the distribution of marijuana (and no other 
schedule I drugs)—and there is no basis to conclude that it 
could—the court’s decision seriously undermines the effec- 
tiveness and administration of the Act. 

As we also explain in our opening brief (at 23-25), a “medi- 
cal necessity” defense is directly contrary to the CSA’s ex- 
clusive rescheduling provisions, 21 U.S.C. 811, 812, which 
give the Attorney General, after consultation with the Sec- 
retary of HHS, the authority to determine whether mari- 
juana has an accepted medical use. 

Those rescheduling pro- 
visions authorize judicial review of any final decision by the 
Attorney General declining to reschedule a controlled sub- 
stance, 21 U.S.C. 877, but in the absence of a rescheduling 
decision, they leave no room for district courts or juries to 
determine on a case-by-case basis whether marijuana may 
be used as medicine. 

Finally, any question regarding congressional intent is put 
to rest by the statutory provision enacted by Congress in 
1998 entitled “NOT LEGALIZING MARIJUANA FOR 
MEDICINAL USE.” Act of Oct. 21, 1998, Pub. L. No. 105- 
277, Div. F, 112 Stat. 2681-760 to 2681-761. That provision 
reiterates that drugs are placed in schedule I precisely 
because they “lack any currently accepted medical use in 
treatment, and are unsafe, even under medical supervision”; 
that marijuana has not been approved by the FDA “to treat 
any disease or condition”; and that Congress “opposes efforts 
to circumvent” the drug approval process “by legalizing 
marijuana * * * for medicinal use without valid scientific 
evidence and the approval of the [FDA].” Ibid. Those 
statutory recitations confirm Congress’s determination not 
only that marijuana lacks any accepted medical utility, but 
also that marijuana may not be used to treat any medical 

5 

condition unless and until the FDA finds that marijuana is 
safe and effective.3 

Respondents attempt to diminish the force of the 1998 
legislation by arguing (Br. 34) that neither court below 
“purported to ‘legalize’ marijuana.” Judicial authorization to 
distribute marijuana where the Act does not allow it, how- 
ever, does “legaliz[e] marijuana * * * for medicinal use.” 
112 Stat. 2681-761. Respondents also observe (Br. 35) that 
the 1998 statute “makes no mention of necessity.” But as we 
explain in our opening brief (at 17-19), a necessity defense is 
foreclosed when its application would fatally clash with the 
criminal statute’s language, structure, or purpose. The CSA 
prohibits the unauthorized distribution of marijuana for all 
purposes, and the 1998 legislation confirms that prohibition 
with respect to the use of marijuana for asserted medical 
purposes.4 

b. Respondents argue (Br. 23-24) that by placing mari- 
juana in schedule I, and defining the criteria for schedule I to 
include no currently accepted medical use,” 21 U.S.C. 
812(b)(1), Congress did not itself determine that marijuana 
has “no currently accepted medical use,” but merely limited 
the Attorney General’s authority to change its classification. 
That argument defies logic. By placing marijuana in 
schedule I, Congress banned the unauthorized distribution of 
marijuana for all purposes, unless and until the Attorney 
General affirmatively determines that marijuana no longer 
meets schedule I’s criteria of having “no currently accepted 

3 A “medical necessity” defense also cannot be reconciled with the 
statutory and regulatory schemes under the CSA and the FDCA that 
reject the medical use of illegal drugs based on patients’ and physicians’ 
subjective views or anecdotal accounts, “no matter how fervently held,” 
that the drug is safe and effective. Weinberger v. Hynson, Westcott & 

Dunning, Inc., 412 U.S. 609, 619 (1973); see U.S. Br. 31-34. 

4 For similar reasons, respondents err in relying (Br. 27-28) on the 
rule of lenity, which has no application unless this Court “can make no 
more than a guess as to what Congress intended.” Holloway v. United 

States, 526 U.S. 1, 12 n.14 (1999) (internal quotation marks omitted). 

6 

medical use in treatment in the United States,” “a high 
potential for abuse,” and “a lack of accepted safety for use 

* * * under medical supervision.” 21 U.S.C. 812(b)(1).5 It 
would have made no sense for Congress to authorize the 
Attorney General to remove marijuana from schedule I in 
the event he determines that the drug no longer meets those 
criteria, unless Congress had made the initial judgment that 
it did meet the criteria. See 21 U.S.C. 812(c) (listing sched- 
ule I drugs “unless and until amended” by the Attorney 
General under 21 U.S.C. 811); see also 116 Cong. Rec. 1664 
(1970) (statement of Sen. Hruska) (“Marijuana is included in 
schedule I since it comes squarely within the criteria of that 
schedule.”). 

c. Respondents further argue (Br. 28-31) that the CSA 
countenances some medical use of marijuana because HHS 
continues to supply eight individuals with marijuana for 
medical use pursuant to single-patient investigational new 
drug (IND) exemptions under 21 U.S.C. 355(i) and 823(f ).6 

5 For example, as respondents and their amici observe (Resp. Br. 23 

n.19; Sheriff Dion et al. Br. 11), Congress has directed the Attorney 
General to place in schedule I methaqualone and gamma-hydroxybutyrate 
that is not contained in a drug product approved by the FDA, so that 
those drugs would be subject to the CSA’s most stringent controls and 
banned for all purposes, including medical uses. Hillory J. Farias & 
Samantha Reid Date-Rape Drug Prohibition Act of 2000, Pub. L. No. 106- 
172, 114 Stat. 7; Act of June 29, 1984, Pub. L. No. 98-329, 98 Stat. 280. 
Those directives demonstrate that Congress would not want a jury, acting 
pursuant to a common law “medical necessity” defense, to override its 
judgment regarding the medical use of those drugs. 

6 Under single-patient IND exceptions, the FDA permits a doctor to 
give an unapproved, investigational drug to a single patient. The FDA’s 
primary objectives in reviewing an IND are to assure the safety and 
rights of subjects and to help assure the quality of the scientific evaluation 
of the drug’s safety and effectiveness. See 21 C.F.R. 312.22. In the case of 
a single-patient IND, the patient is not part of a controlled clinical trial 
intended to determine whether the drug is safe and/or effective. We have 
been informed by the FDA that, for that reason, single-patient INDs do 
not provide much information that assists the agency in determining 
whether the drug is safe or effective. 

7 

That contention, however, confuses the limited and 
controlled distribution of marijuana by the federal 
government pursuant to statute with the illegal and 
unregulated distribution of marijuana by private parties. 
Those limited IND exemptions thus are fully consistent with 
Congress’s intent to ban the distribution of marijuana for all 
purposes, including purported medical uses, except as con- 
trolled under the Act. In any event, HHS’s single-patient 
INDs do not support the medical use of marijuana. In 1992, 
HHS ceased granting the INDs because the “widespread use 
of marijuana for medical purposes * * * is bad public policy 
and bad medical practice.” Kuromiya v. United States, 78 F. 
Supp. 2d 367, 369 (E.D. Pa. 1999). Moreover, the govern- 
ment “never conceded formally that marijuana was effective 
in treating the symptoms of those individuals who were 
receiving it,” id. at 369, and “consistently expressed skepti- 
cism about [the single-patient INDs] and the efficacy of 
using marijuana.” Id. at 372. 

d. Respondents purport (Br. 32-34) to find support for a 
federal “medical necessity” defense in the fact that some 
States have enacted statutes that carve out an exception to 
blanket statutory prohibitions similar to those in the CSA in 
order to authorize limited medical uses of marijuana. But 
because Congress did not enact such a statute, the cited 
state provisions point in precisely the opposite direction, 
demonstrating that when legislatures want to provide 
exceptions for some medical use of marijuana they know how 
to do so. Therefore, the absence of any exception in the CSA 
for medical use, coupled with Congress’s steadfast adherence 
to the placement of marijuana in schedule I and its 1998 
rejection of a “medicinal” use exception (112 Stat. 1281-761), 
clearly reflects Congress’s intent to foreclose a common law 
necessity defense that would circumvent the CSA’s strict 
prohibitions and controls. 

8 

2. Courts lack the equitable power to permit the illegal dis- 
tribution of marijuana based on a claimed medical need 

Respondents and their amici argue that this Court need 
not decide whether “medical necessity” is a valid legal 
defense under the Act, because the court of appeals’ decision 
may be upheld on the ground that a district court has the 
equitable discretion under 21 U.S.C. 882 to refuse to enforce 
the CSA if the court determines that the balance of the 
equities favors the availability of marijuana for medical 
purposes. A district court undoubtedly has discretion to 
fashion an injunction under the CSA in the manner best 
suited to terminate violations of and secure compliance with 
the Act. U.S. Br. 37-43. But a federal court’s equity power 
does not allow it to countenance ongoing violations of the 
CSA by refusing to enjoin the distribution of marijuana for 
medical purposes on the ground that there is a public inter- 
est in such use, in the face of Congress’s contrary balancing 
of the relevant scientific, medical, and public policy consi- 
derations.7 

a. As we explain in our opening brief (Br. 37-43), this 
Court’s precedents confirm that when the United States 
brings an action for an injunction to enforce an Act of 
Congress, the court must exercise its equitable discretion in 
light of the text, structure, and underlying policies of the 

7 Not even the court of appeals held that a district court may “ignore 
the law” in light of its view of the public interest. App. 8a. Rather, the 
court held that the district court abused its discretion in enjoining 
respondents’ distribution of marijuana for all purposes, including medical 
uses, because the court failed “to take into account a legally cognizable 
defense” under the CSA. Ibid.; see also id. at 9a (explaining that, by 
seeking an injunction, “the government invited an inquiry into whether 
the injunction” should be “broad enough to prohibit illegal conduct, but 
narrow enough to exclude conduct that likely would be legally privileged 
or justified”) (emphasis added); ibid. (finding that modification of the 
injunction would not conflict with the CSA’s underlying policies); id. at 11a 
(remanding for district court to consider whether respondents met “the 
criteria for a medical necessity exemption”). 

9 

statute that the court is charged with enforcing. Thus, 
United States v. Rutherford, 442 U.S. 544 (1979), held that a 
district court lacked the power to enter an injunction permit- 
ting the physician-supervised use of Laetrile by terminally 
ill cancer patients, because the FDCA “makes no special 
provision for drugs used to treat terminally ill patients.” Id. 
at 551; U.S. Br. 27-28, 39. The CSA likewise “makes no 
special provision” for the unauthorized distribution of mari- 
juana for medical purposes, regardless of whether a court 
sitting in equity is of the view that such distribution is 
“medically necessary.” Congress already has determined 
that the unauthorized distribution of controlled substances, 
including marijuana, has “a substantial and detrimental 
effect on the health and general welfare of the American 
people,” 21 U.S.C. 801(2), and therefore has banned their 
unauthorized use. A court thus cannot defeat those policy 
judgments based on its own view that they are unwise or 
unfair. Rutherford, 442 U.S. at 551, 555, 559.8 

b. Respondents also argue (Br. 12, 16) that a court may 
refuse to enjoin violations of the CSA when the government 
makes the “tactical” choice to forgo a criminal prosecution. 
In their view (Br. 16), a court may “require” the government 
to enforce the CSA solely by bringing a criminal prosecution, 
in which, they assert, a jury could take a “dim view of the 
governmental attempt to deprive grievously ill citizens of 
medication essential for relief during the last days of their 
lives.” 

8 Respondents attempt (Br. 35-37) to distinguish Rutherford on the 
ground that “[t]here was no credible evidence * * * that Laetrile was a 
cancer cure,” whereas marijuana is the only drug of “proven effectiveness” 
for their members’ conditions. Rutherford cannot credibly be read, how- 
ever, as turning on the plaintiffs’ inability to “prove” to a court that 
Laetrile was medically advantageous. Rather, Rutherford held that 
Congress had banned the use of Laetrile absent a finding by the FDA that 
the drug was safe and effective, as required by the FDCA. 442 U.S. at 
551-559. Congress likewise has banned the medical use of marijuana 
absent FDA approval and rescheduling by the Attorney General. 

10 

The Act authorizes the Attorney General and not a court, 
however, to decide whether to enforce the Act through 
criminal or civil proceedings. A district court has no author- 
ity to refuse to enjoin flagrant and ongoing violations of the 
Act on the ground that the court believes the government 
should have proceeded criminally instead. It would defeat 
Congress’s decision to authorize enforcement through civil 
injunctive relief if a court could decline to enforce the Act on 
the ground that the government did not seek the more 
onerous form of relief.9 

Respondents’ contention fails for another reason. Al- 
though a jury may have the de facto power to render a 
criminal verdict of acquittal “in the teeth of both law and 
facts,” Horning v. District of Columbia, 254 U.S. 135, 138 
(1920), a court has no authority to instruct a jury that it has 
that power, see, e.g., United States v. Edwards, 101 F.3d 17, 
19-20 (2d Cir. 1996) (collecting cases), or to exercise it itself. 
A court likewise has no discretion to refrain from enjoining 
ongoing violations of the Act on the ground that a jury might 
find the violations sympathetic and therefore nullify the Act. 

9 For similar reasons, amici ACLU et al. err in contending (Br. 21-27) 
that a court should refrain from enjoining violations of the CSA because, 
although the CSA provides for a trial by jury in instances of an alleged 
violation of a civil injunction, see 21 U.S.C. 882(b), contempt proceedings 
lack some of the procedural safeguards of a criminal trial. 

Amici ACLU 

et al. also contend (Br. 14 n.7) that the district court’s orders on remand 
leave the government “a viable alternative” of pursuing a criminal pro- 
secution against respondents. 

That alternative hardly seems “viable” in 

light of the Ninth Circuit’s recognition of a “medical necessity” defense 
and the district court’s orders that permit respondents to violate the Act. 

11 

3. The CSA’s ban on marijuana distribution for medical 
purposes satisfies constitutional requirements 

Respondents and their amici argue that the CSA should 
not be construed to foreclose a “medical necessity” defense 
in order to avoid what they assert is a difficult constitutional 
question. As respondents recognize (Br. 37), however, that 
canon of construction has no application absent statutory 
ambiguity. Whitman v. American Trucking Ass’ns, 121 
S. Ct. 903 (2001). As we explain above and in our opening 
brief, Congress spoke with unmistakable clarity in pre- 
cluding the illegal distribution of marijuana despite a claimed 
“medical necessity.” Moreover, all of the constitutional chal- 
lenges, to the extent they are properly before this Court, 
lack merit. 

10 

a. Respondents argue (Br. 37-41) that Congress lacks the 
power under the Commerce Clause, Art. I, § 8, Cl. 3, to ban 
the intrastate distribution of marijuana for medical pur- 
poses. That is not correct. 

11 Congress’s commerce authority 

10 The court of appeals did not address respondents’ constitutional 
claims, and respondents did not raise the Commerce Clause challenge in 
the court of appeals. Moreover, respondents did not mention the Ninth 
and Tenth Amendments in their brief opposing certiorari, although they 
stated in a footnote in their brief opposing the government’s motion to 
stay the district court’s remand orders that the court of appeals’ decision 
could be supported on Ninth and Tenth Amendment grounds. Stay Opp. 
10 n.2. Finally, as we note in our certiorari petition (at 5 n.5), respondents’ 
substantive due process claim is currently before the district court on 
remand from the Ninth Circuit. 

11 Every court of appeals has upheld the constitutionality of the CSA 
under the Commerce Clause. United States v. Edwards, 98 F.3d 1364, 
1369 (D.C. Cir. 1996), cert. denied, 520 U.S. 1170 (1997); United States v. 
Lerebours, 87 F.3d 582, 584-585 (1st Cir. 1996), cert. denied, 519 U.S. 1060 
(1997); United States v. Genao, 79 F.3d 1333, 1336-1337 (2d Cir. 1996); 
United States v. Orozco, 98 F.3d 105, 107 (3d Cir. 1996); United States v. 
Leshuk, 65 F.3d 1105, 1112 (4th Cir. 1995); United States v. Clark, 67 F.3d 
1154, 1165-1166 (5th Cir. 1995), cert. denied, 517 U.S. 1141 (1996); United 
States v. Tucker, 90 F.3d 1135, 1140-1141 (6th Cir. 1996); United States v. 
Westbrook, 125 F.3d 996, 1009-1010 (7th Cir.), cert. denied, 522 U.S. 1036 
(1997); United States v. Brown, 72 F.3d 96, 97 (8th Cir. 1995) (per curiam), 

12 

includes the power to regulate intrastate economic activity 
that substantially affects interstate commerce. United 
States v. Morrison, 529 U.S. 598, 611-612 (2000); United 
States v. Lopez, 514 U.S. 549, 559-560 (1995)). 

12 Marijuana 
distribution is economic activity. See, e.g., United States v. 
Orozco, 98 F.3d 105, 107 (3d Cir. 1996) (“drug trafficking is 
an inherently commercial activity”); United States v. Rogers, 
89 F.3d 1326, 1338 (7th Cir.) (“drug dealing is an economic 
activity”), cert. denied, 519 U.S. 999 (1996). Marijuana is a 
tradable commodity for which there exists a substantial and 
national market. 21 U.S.C. 801(3) (“A major portion of the 
traffic in controlled substances flows through interstate and 
foreign commerce.”). Indeed, respondents do not dispute 
that they sell marijuana to their members. See J.A. 50 
(“marijuana for sale * * * ranged in price from between 
$28 to $85 per one-eighth ounce”), J.A. 60 (20 grams of 
“Afghani Hash” sold for $400); see also J.A. 64-65, 72. 

13 

Respondents therefore err in arguing (Br. 39-41) that the 
CSA cannot constitutionally be applied to their intrastate 
drug distribution for medical purposes because the govern- 
ment has not shown that particular activity to substantially 
affect interstate commerce. “[W]here a general regulatory 
statute bears a substantial relation to commerce, the de 

cert. denied, 518 U.S. 1033 (1996); United States v. Tisor, 96 F.3d 370, 373- 
375 (9th Cir. 1996), cert. denied, 519 U.S. 1140 (1997); United States v. 
Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995), cert. denied, 523 U.S. 1035 
(1998); United States v. Jackson, 111 F.3d 101, 102 (11th Cir.), cert. denied, 
522 U.S. 878 (1997). 

12 The activities regulated by the statutes at issue in Morrison and 
Lopez were found to be non-economic in nature. 

Morrison, 529 U.S. at 

617 (gender-motivated violence covered by Violence Against Women Act 
of 1994, 42 U.S.C. 13981); Lopez, 514 U.S. at 551, 561, 567 (gun possession 
in a local school zone banned by Gun-Free School Zones Act of 1990, 18 
U.S.C. 922(q)(1)(A)). 

13 Respondents’ alleged non-profit character (Br. 2; J.A. 29) does not 
exempt them from Congress’s Commerce Clause authority. See Camps 
Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 583-586 
(1997). 

13 

minimis character of individual instances arising under that 
statute is of no consequence.” Lopez, 514 U.S. at 558 (em- 
phasis and internal quotation marks omitted); see also Perez 

v. United States, 402 U.S. 146, 154 (1971); Maryland v. 
Wirtz, 392 U.S. 183, 192 (1968); United States v. Darby, 312 
U.S. 100, 120-121 (1941). For example, in Wickard v. 
Filburn, 317 U.S. 111 (1942), the Court upheld federal regu- 
lation of wheat grown and consumed on a family farm in 
order to control the volume of wheat moving in interstate 
and foreign commerce. See Lopez, 514 U.S. at 559-561; 
Morrison, 529 U.S. at 610-611. 

Respondents argue (Br. 41 n.35) that Wickard is inappo- 
site because, unlike the wheat at issue in Wickard, “there is 
no federal scheme of price maintenance” for marijuana 
affected by respondents’ intrastate activities. The intrastate 
distribution of marijuana for medical purposes, however, 
substantially affects the interstate market for marijuana by 
increasing the drug’s demand and supply, and by interfering 
with the CSA’s purpose to establish a national and uniform 
closed system to prevent the abuse and diversion of illegal 
drugs. See 21 U.S.C. 801(4) (finding that “[l]ocal distri- 
bution and possession of controlled substances contribute to 
swelling the interstate traffic in such substances.”); 
21 U.S.C. 801(6) (finding that “[f]ederal control of the 
intrastate incidents of the traffic in controlled substances is 
essential to the effective control of the interstate incidents of 
such traffic”). 

14 As the district court explained in rejecting 

14 Congress in the CSA also found that “[i]ncidents of the [drug] traffic 
which are not an integral part of the interstate or foreign flow, such as 
manufacture, local distribution, and possession, nonetheless have a 
substantial and direct effect upon interstate commerce because – (A) after 
manufacture, many controlled substances are transported in interstate 
commerce, (B) controlled substances distributed locally usually have been 
transported in interstate commerce immediately before their distribution, 
and (C) controlled substances possessed commonly flow through interstate 
commerce immediately prior to such possession.” 21 U.S.C. 801(3) 
(emphasis added). 

14 

respondents’ Commerce Clause challenge, “[m]edical mari- 
juana may be grown locally, or out of the state or country, 
and there is nothing in the nature of medical marijuana that 
limits it to intrastate cultivation. Similarly, it may be 
transported across state lines and consumed across state 
lines. * * * [Marijuana] distribution [is] a class of activities 
that, even if done for the humanitarian purpose of serving 
the legitimate health care needs of seriously ill patients, can 
affect interstate commerce.” App. 59a. 

b. Nor is there any merit to the suggestion of respon- 
dents and their amici (see, e.g., Resp. Br. 45-49) that banning 
respondents’ distribution of marijuana would violate the 
Tenth Amendment because Proposition 215 reflects the 
State of California’s determination that marijuana has 
medical utility. 

This Court “long ago rejected the suggestion that Con- 
gress invades areas reserved to the States by the Tenth 
Amendment simply because it exercises its authority under 
the Commerce Clause in a manner that displaces the States’ 
exercise of their police powers” or that “curtail[s] or pro- 
hibit[s] the States’ prerogatives to make legislative choices 
respecting subjects the States may consider important.” 
Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 
U.S. 264, 290, 291 (1981). Thus, in the absence of federal 
“commandeer[ing of] the state legislative process by 
requiring a state legislature to enact a particular kind of 
law,” Reno v. Condon, 528 U.S. 141, 149 (2000), the Tenth 
Amendment “states but a truism that all is retained which 
has not been surrendered,” Darby, 312 U.S. at 124. “If a 
power is delegated to Congress in the Constitution, the 
Tenth Amendment expressly disclaims any reservation of 
that power to the States,” New York v. United States, 505 
U.S. 144, 156 (1992). Because the CSA’s generally applicable 
prohibition against manufacture, distribution, and possession 
of marijuana is a valid exercise of Congress’ Commerce 
Clause authority, pp. 11-13, supra, that prohibition does not 

15 

violate the Tenth Amendment. See, e.g., Reno, 528 U.S. at 
149-150 (rejecting Commerce Clause and Tenth Amendment 
challenges to federal statute imposing civil and criminal 
penalties upon state and private actors for improper 
disclosure of certain state motor vehicle records); see also 
United States v. Westbrook, 125 F.3d 996, 1010 (7th Cir.) 
(rejecting Tenth Amendment challenge to CSA), cert. 
denied, 522 U.S. 1036 (1997); accord United States v. 
Lerebours, 87 F.3d 582, 585 (1st Cir. 1996), cert. denied, 519 
U.S. 1060 (1997); United States v. Owens, 996 F.2d 59, 60-61 
(5th Cir. 1993). 

Moreover, nothing in Proposition 215 purports either to 
override federal law or to legalize the distribution of mari- 
juana for medical purposes. 

15 Rather, Proposition 215 
exempts from the State’s own criminal laws the possession 
and cultivation of marijuana for medical use by a “patient[] 
or [the] patient’s primary care-giver * * * upon the oral or 
written recommendation or approval of a physician.” Cal. 
Health & Safety Code § 11362.5(d) (West 2001). Proposition 
215 therefore does not authorize respondents’ conduct. 

16 

Indeed, the State itself has successfully closed “medical- 
marijuana” distribution clubs because they violate Califor- 
nia’s laws that criminalize the selling, furnishing, or giving 

15 Because there is no occasion in this case to determine whether 
Proposition 215 conflicts with the CSA, respondents’ reliance (Br. 9) on 
21 U.S.C. 903, which provides that the CSA shall not be construed to 
displace state law absent “positive conflict” with state law, is inapposite. 

16 For that reason, respondents err in suggesting (Br. 16) that the dis- 
trict court could exercise its discretion to decline “to restrain state officers 
in the administration of state law.” In any event, even if we assume, ar- 
guendo, that respondents are “state officers” because the City of Oakland 
has designated them to administer the City’s marijuana distribution “Pro- 
gram,” J.A. 146, respondents would not be permitted to distribute 
marijuana in violation of federal law. Condon, 528 U.S. at 149-150; cf. 
21 U.S.C. 885(d) (providing immunity under CSA for state officials 
“engaged in the enforcement” of controlled substances laws). 

16 

away of marijuana. People v. Peron, 70 Cal. Rptr. 2d 20, 25- 
28 (1997), review denied (Feb. 25, 1998). 

17 

c. Respondents and their amici further argue (see, e.g., 
Resp. Br. 42-49) that individuals have a Ninth Amendment 
and substantive due process right to use marijuana when 
doctors and their patients conclude that such use is 
“medically necessary.” Respondents and their amici have 
not established, however, that the use of a particular drug 
(much less the receipt of the drug from a distributor), free of 
a regulatory regime designed to protect the public health 
and safety, is a fundamental right that is deeply rooted in 
“our Nation’s history, legal traditions, and practices.” 
Washington v. Glucksberg, 521 U.S. 702, 710 (1997); cf. 
Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 
U.S. 872 (1990) (rejecting claim of Free Exercise right to 
religiously motivated peyote use). 

18 

17 Respondents err in asserting (Br. 1 n.2) that marijuana distribution 
is not authorized by Proposition 215 because one of its purposes is to 
“encourage the federal and state governments to implement a plan to 
provide for the safe and affordable distribution of marijuana to all patients 
in medical need.” Cal. Health & Safety Code § 11362.5(b)(1)(C) (West 
2001) (emphases added); see also Peron, 70 Cal. Rptr. 2d at 28 (rejecting 
contention that Section 11362.5(b)(1)(C) indicates an intent to authorize 
the distribution of small amounts of marijuana for medical purposes, 
explaining that the “drafters [of Proposition 215] were aware of both state 
and federal law prohibiting such sales and were attempting to avoid a 
conflict therewith”). Equally irrelevant is respondents’ observation (Br. 1 

n.2) that the district court “assumed” that state law applied to re- 
spondents’ conduct in order “to avoid a factual dispute.” App. 47a. 

18 The lower courts repeatedly have held that governmental 
regulations designed to protect health and safety do not infringe a funda- 
mental right merely because they restrict a patient’s choice of a particular 
medical treatment. See, e.g., Mitchell v. Clayton, 995 F.2d 772, 775-776 
(7th Cir. 1993) (“[a] patient does not have a constitutional right to obtain a 
particular type of treatment * * * if the government has reasonably 
prohibited that type of treatment”); Carnohan v. United States, 616 F.2d 
1120, 1122 (9th Cir. 1980) (per curiam) (“[c]onstitutional rights of privacy 
and personal liberty do not give individuals the right to obtain laetrile free 
of the lawful exercise of government police power”); Rutherford v. United 
States, 616 F.2d 455, 457 (10th Cir.) (a patient’s “selection of a particular 

17 

Such a right would be inconsistent with this country’s 
history of restrictions on the distribution and use of medici- 
nal and “street” drugs. As early as 1736, Virginia began to 
regulate the practice of pharmacy, and by the time of the 
Civil War, four States had similar laws. Pharmaceutical 
regulation intensified in the period after the Civil War, such 
that by 1900, with the exception of Nevada, every State had 
passed laws regulating the practice of pharmacy, and at least 
25 States or territories had passed laws prohibiting drug 
adulteration and regulating the sale of poisons. 37 David L. 
Cowen, Pharmacy in History: The Development of State 
Pharmaceutical Law 49-50 (1995). 

In 1906, Congress passed the Pure Food and Drugs Act of 
1906, ch. 3915, 34 Stat. 768, to prohibit the manufacture of 
adulterated or misbranded food or drugs. In 1914, Congress 
passed the predecessor to the CSA, the Harrison Narcotics 
Act, ch. 1, 38 Stat. 785, which restricted the use of narcotics 
such as opium, morphine, and cocaine in order to combat the 
problems of abuse and addiction. Cf. Moore, 423 U.S. at 132 
(noting that “[p]hysicians who stepped outside the bounds of 
professional practice could be prosecuted under the 
[Harrison Act].”). In 1938, Congress passed the FDCA, 
which requires FDA approval of drugs in order to “protect 
the public health by ensuring that . . . drugs are safe and 
effective.” FDA v. Brown & Williamson Tobacco Corp., 529 
U.S. 120, 134 (2000) (quoting 21 U.S.C. 393(b)(2) (1994 & 
Supp. III 1997)); accord United States v. Walsh, 331 U.S. 
432, 434 (1947). 

treatment, or at least a medication, is within the area of governmental 
interest in protecting public health”), cert. denied, 449 U.S. 937 (1980); 
Kuromiya v. United States, 37 F. Supp. 2d 717, 726 (E.D. Pa. 1999) 
(rejecting constitutional challenge to CSA by individuals seeking to use 
marijuana for medical purposes, concluding that “there is no fundamental 
right of privacy to select one’s medical treatment without regard to 
criminal laws”); see also U.S. Br. 25 n.14. 

18 

After marijuana use in this country first became popular 
among limited segments of the population in the mid-1920s, 
the National Conference of Commissioners on Uniform State 
Laws in 1932 recommended passage of the Uniform Narcotic 
Drug Act, which included an optional provision to list 
marijuana as a narcotic subject to strict controls. By 1937, 
every State, either by adoption of the Uniform Act or by 
separate legislation, had restricted or prohibited marijuana 
use. R.J. Bonnie & C.H. Whitebread, The Marihuana Con- 
viction 31-52, 79-91 (1974); National Comm’n on Marihuana & 
Drug Abuse, Marihuana: A Signal Of Misunderstanding 13- 
14, 104-105 (Mar. 1972). Also in 1937, Congress passed the 
Marihuana Tax Act, ch. 553, 50 Stat. 551, which severely 
restricted the use of and trafficking in marijuana, even for 
medical purposes. United States v. Sanchez, 340 U.S. 42, 
43-44 (1950); see also R.J. Bonnie & C.H. Whitebread, supra, 
at 165. That long-standing tradition of governmental 
regulation to protect the public from unsafe or improperly 
diverted drugs (including marijuana) cannot be reconciled 
with the assertion of a fundamental right to use a particular 
drug (including marijuana) free of governmental regulation 
to protect the public health and safety. 

There is also no basis for concluding that Congress has 
infringed on the liberty interests of individuals who seek to 
relieve their pain and suffering. The CSA does not deprive 
citizens of the ability to obtain medication to treat disease or 
relieve pain and suffering. Rather, the CSA outlaws the 
unauthorized use of a particular unapproved drug, mari- 
juana, based on judgments made by Congress, the Secretary 
of Health and Human Services, and the Attorney General 
that marijuana has no currently accepted medical use, a lack 
of accepted safety for use under medical supervision, and a 
high potential for abuse. Congress, the Secretary, and the 
Attorney General made that determination in furtherance of 
their obvious and compelling interest in combating drug 
abuse and protecting the public from the dangers associated 

19 

with the use of unsafe drugs that may be diverted for 
improper purposes. See National Treasury Employees 
Union v. Von Raab, 489 U.S. 656, 668, 674 (1989) (observing 
that drug trafficking is “one of the greatest problems 
affecting the health and welfare of our population” and that 
“drug abuse is one of the most serious problems confronting 
our society today”); see also Smith, 494 U.S. at 905 
(O’Connor, J., concurring) (State has a “compelling” and 
“overriding interest in preventing the physical harm caused 
by the use of a Schedule I controlled substance”). 

Congress, moreover, has ensured that government re- 
strictions on controlled substances are well-founded. The 
CSA authorizes research with respect to possible medical 
uses of marijuana, albeit under the strict confines of the Act. 
See 21 U.S.C. 823(f); see also 21 U.S.C. 355(i). The CSA 
permits the Attorney General to reschedule marijuana if he 
determines that marijuana no longer meets the criteria of a 
schedule I drug, including that it has “no currently accepted 
medical use.” 21 U.S.C. 811, 812(b)(1)(B). The FDCA simi- 
larly authorizes the FDA to approve marijuana for medical 
use if it finds that marijuana is safe and effective for any 
intended medical use. 21 U.S.C. 355. Congress also has 
authorized courts to review final agency action under those 
Acts and to overturn those that are arbitrary or capricious 
or not supported by substantial evidence. 21 U.S.C. 355(h), 
877. 

19 

19 Although respondents and their amici express their belief in the 
therapeutic benefits of marijuana and their frustration with the 
potentially time-consuming process of rescheduling marijuana or obtaining 
FDA approval of the drug, they have not petitioned the DEA to 
reschedule marijuana based on a claim that it has a “currently accepted 
medical use,” see U.S. Br. 24 & n.12, and they do not assert that they have 
requested the FDA to approve marijuana as safe and effective for any 
medical condition. 

As we noted in our opening brief (at 24 n.12), on July 10, 1995, Jon 
Gettman petitioned the DEA to initiate rulemaking proceedings to 
reschedule marijuana on the asserted ground that marijuana lacks a high 

20 

Finally, there is nothing inherently suspect about Con- 
gress’s medical and policy judgments regarding marijuana. 
All citizens have an interest in obtaining medication that is 
“proven” to treat disease or to relieve the pain and suffering 
of those who are sick or terminally ill. Therefore, “[t]here is 
no reason to think the democratic process will not strike the 
proper balance” between the interest of those individuals 
and Congress’s interest in ensuring that drugs are safe and 
effective and are not used or diverted for improper purposes. 
Glucksberg, 521 U.S. at 737 (O’Connor, J., concurring); cf. 
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 
445 (1985). 

* * * * * 

For the foregoing reasons and those stated in our opening 
brief, the judgment of the court of appeals should be re- 
versed. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

MARCH 2001 

potential for abuse. By letter dated March 20, 2001, the Administrator of 
DEA notified Mr. Gettman that his petition was denied, explaining that 
both the DEA and HHS have concluded that marijuana continues to meet 
the criteria for placement in schedule I of having a high potential for 
abuse, no currently accepted medical use in treatment in the United 
States, and a lack of accepted safety for use even under medical super- 
vision. We are lodging with the Court the DEA’s response to Mr. 
Gettman’s petition, which also contains the scientific and medical recom- 
mendation that HHS’s Assistant Secretary for Health and Surgeon 
General provided to the Administrator on January 17, 2001.