Raich v. Gonzales

United States Court of Appeals for the Ninth Circuit · 2007 · Constitutional Law

500 F.3d 850

Updated July 9, 2026

conlawmedical marijuanaControlled Substances ActCommerce Clause aftermathfundamental rightsGlucksberg careful descriptionnecessity defensestate police powers

Facts

Angel McClary Raich is seriously ill and uses marijuana for medical treatment on her physician's recommendation; California law permits such use, and her caregivers cultivate marijuana for her free of charge. Her doctor stated that legal alternatives had been ineffective or caused intolerable side effects and that stopping marijuana treatment could be fatal. After federal agents had seized and destroyed another medical marijuana patient's plants, Raich sought declaratory and injunctive relief against federal enforcement of the Controlled Substances Act. On remand, she relied on common law necessity, substantive due process, the Tenth Amendment, and a new statutory-text argument.

Issue

Whether Raich showed a likelihood of success on the merits sufficient to justify a preliminary injunction against enforcement of the Controlled Substances Act based on common law necessity, substantive due process, or the Tenth Amendment, and whether the court should consider her newly raised argument that the Act's text did not prohibit her conduct.

Rule

A preliminary injunction requires a showing of likelihood of success on the merits under the circuit's sliding-scale standards. A common law necessity defense may shield a defendant from criminal liability, but it does not by itself authorize prospective injunctive relief against enforcement of a statute. Under substantive due process, an asserted fundamental right must be carefully described and must be deeply rooted in the Nation's history and tradition and implicit in the concept of ordered liberty. When Congress validly acts under an enumerated power, such as the Commerce Clause, there is no Tenth Amendment violation merely because federal law displaces state police-power choices.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Lena Ortiz lives in Phoenix and suffers from a rare neurological condition. Her physician states that an otherwise prohibited plant-derived substance is the only treatment that relieves her symptoms, and Arizona law authorizes her use, but federal agents announce they will continue enforcing a federal ban. Lena sues in federal court for a preliminary injunction barring future enforcement against her, arguing common law necessity.

What is the strongest reason the court should deny Lena's request for a preliminary injunction on that ground?

Explanation. The majority held that even assuming a necessity defense may exist, it functions as an affirmative defense to criminal liability and does not authorize a court to prospectively enjoin enforcement of the statute. The court emphasized that the defense depends on changing facts, such as the patient's condition and legal alternatives, making injunction-based supervision impracticable. (Derived from Raich v. Gonzales (n.d.).)