Raich

*1224 OPINION

Two of the appellants, Angel MeClary Raich and Diane Monson, are seriously ill Californians who use marijuana for medical purposes on the recommendation of their doctors. Such use is legal under California’s Compassionate Use Act. Mon-son grows her own medical marijuana. The remaining two appellants, John Doe Number One and John Doe Number Two, assist Raich in growing her marijuana. On October 9, 2002, the appellants filed suit against John Ashcroft, the Attorney General of the United States, and Asa Hutchinson, the Administrator of the Drug Enforcement Administration, seeking injunctive and declaratory relief based on the alleged uneonstitutionality of the federal Controlled Substances Act. The appellants also seek a declaration that the medical necessity defense precludes enforcement of that act against them.

On March 5, 2003, the district court denied the appellants’ motion for a preliminary injunction because the appellants had not established a sufficient likelihood of success on the merits. That ruling is now before us.

FACTUAL AND PROCEDURAL HISTORY

A. Statutory Scheme

1. The Controlled Substances Act

Congress enacted the Controlled Substances Act, 21…

dissenting.

It is simply impossible to distinguish the relevant conduct surrounding the cultivation and use of the marijuana crop at issue in this case from the cultivation and use of the wheat crop that affected interstate commerce in Wickard v. Filburn, 317 U.S. 111 , 63 S.Ct. 82 , 87 L.Ed. 122 (1942). Accordingly, I dissent.

I.

At the outset, I note a justiciability problem that has not been addressed by the parties, the district court or the opinion of the panel majority. Although plaintiffs assert an “as applied” challenge to the workings of the Controlled Substances Act (CSA), the pleadings and evidentiary showings do not disclose, except with one possible exception, that the CSA has actually been applied to any of plaintiffs’ activities. This, of course, raises the question of whether this case is ripe for review and, in turn, whether plaintiffs have standing to bring this case before the court.

“[Wjhere it is impossible to know whether a party will ever be found to have violated a statute, or how, if such a violation is found, those charged with enforcing the statute will respond, any challenge to that statute is premature.” Alaska Airlines, Inc. v. City of Long Beach,…

352 F.3d 1222 Angel McClary RAICH; Diane Monson; John Doe, Number One; John Doe, Number Two, Plaintiffs-Appellants, v. John ASHCROFT, Attorney General, as United States Attorney General; Asa Hutchinson, as Administrator of the Drug Enforcement Administration, Defendants-Appellees. No. 03-15481. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 7, 2003 — San Francisco, California. Filed December 16, 2003. Robert A. Raich, Oakland, CA, David M. Michael, San Francisco, CA, Randy Barnett, Boston, MA, for Plaintiffs-Appellants. Mark T. Quinlivan, U.S. Department of Justice, Washington, D.C., for Defendants-Appellees. Alice P. Mead, San Francisco, CA, Julie M. Carpenter and David A. Handzo, Jenner & Block, Washington, DC, for Amici California Medical Association and California Nurses Association. Bill Lockyer, Attorney General and Taylor S. Carey, Special Assistant Attorney General, Sacramento, CA, for Amicus State of California. Richard E. Winnie, County Counsel, Oakland, CA, for Amicus County of Alameda. John A. Russo, City Attorney and Barbara J. Parker, Chief Assistant City Attorney, Oakland, CA, for Amicus City of Oakland. Michael L. Ramsey,…