affected.  Id. at 1231.  It then concluded that the third factor
                         
    weighed in favor of finding the CSA constitutional because
                         
    there were at least some Congressional findings indicating that
                         
    intrastate possession of controlled substances impacted inter-
                         
    state commerce.  Id. at 1232.  However, the court also noted that
                         
    Congress made no findings spcifically addressing the class of
                         
    activities at issue and that the findings that were made were
                         
    limited to the effects of intrastate activity on interstate
                         
    commerce, that is, the trafficking or distribution of con-
                         
   trolled substances.  Id. at 1231-32.  "The findings are not spe-
                         
   cific to marijuana, much less intrastate medicinal use of mari-
                         
   juana that is not bought or sold and the use of which is based
                         
   on the recommendation of a physician."  Id. at 1232.  The court
                         
   also noted that this factor does not weigh as heavily in the
                         
   calculation as do the first and fourth factors.  Id.
                         
         Finally, the court concluded that the link between the
                         
   regulated activity and the substantial effect on interstate
                         
   commerce is attenuated.  Although "the intrastate cultivation,
                         
   possession and use of medical marijuana on the rcommendation
                         
   of a physician could, at the margins, have an effect on inter-
                         
   state commerce by reducing the demand for marijuana that is
                         
   trafficked interstate[,]...it is far from clear that such an
                         
   effect would be substantial."  Id. at 1233.  Weighing the four
                         
   factors, the court held that the CSA, as applied to the facts
                         
   of the case, is likely unconstitutional.  The court noted that
                         
   it is particularly important to ensure that Congress's use of
                         
   its Commerce Clause power is appropriate in the criminal law
                         
   context.  Id. at 1234.  Unless and until it is overruled, Raich
 
 Page 5 of 7
 Defendant's Reply to Oppoosition to Motion for Return of Property
 
 

copyright © 2003-2015 J. Craig Canada aka palmspringsbum.
Commercial use prohibited without consent. All rights reserved.