'No' on medical marijuana use

from the June 07, 2005 edition - http://www.csmonitor.com/2005/0607/p01s02-usju.html

By Warren Richey Staff writer of The Christian Science Monitor

WASHINGTON - Two California women have no right to use locally grown marijuana for medical purposes when federal drug statutes outlaw its use under any circumstances.

In an important decision announced Monday dealing with the balance of governmental powers, the US Supreme Court ruled that the federal government has the authority under the US Constitution to override a state law permitting the medical use of marijuana.

The 6-to-3 decision is a defeat for California and nine other states with similar medical marijuana laws. It is also a major setback for those medical patients who have come to rely on marijuana as part of their treatment.

In addition, it marks a retreat by the high court from its so-called federalism revival. "There was a counterrevolution in progress, how far will they go. The answer appears to be not very far," says Douglas Laycock, a constitutional law professor at the University of Texas Law School.

The case was being closely watched in part to see if the court's conservative wing would continue a constitutional trend begun with decisions in 1995 and 2000 limiting Congress's power to legislate under the Constitution's commerce clause. Those earlier decisions had announced that there are limits to the national government's ability to regulate areas that traditionally have been left to state and local jurisdictions.

The commerce clause is not a blank check for federal lawmakers, the court has suggested. But the justices have not spelled out exactly where those limits lie.

In this case, the majority justices ruled that the commerce clause does permit the federal government to regulate marijuana use and possession, even when those regulations conflict with state measures permitting the use and possession of marijuana.

Specifically at issue in the case was whether Angel Raich and Diane Monson would be permitted to rely on doctor-prescribed marijuana to deal with the pain of chronic illnesses. Ms. Raich was diagnosed with an inoperable brain tumor. Ms. Monson experiences what her doctors say is a degenerative spine disease.

Both women have tried a variety of medications but say the side effects have only increased suffering. Their physicians recommended they try marijuana. A 1996 California law permits such use. But federal law bans marijuana as an illegal drug. The law says there is "no currently accepted medical use in treatment in the United States."

Federal drug agents and the US attorney general sought to prosecute Raich and Monson as criminals. Lawyers for the two argued that the federal law impermissibly infringed on California's authority to govern the health and well-being of its residents. Their marijuana was grown locally with local materials and at no time crossed state lines triggering commerce-clause authority, they said.

The majority justices disagreed. In his majority opinion, Justice John Paul Stevens says the federal government has the power to enact a total ban on marijuana use, even when locally grown and used.

Justice Stevens and the other majority justices saw the case as substantially similar to a landmark 1942 commerce-clause decision called Wickard v. Filburn, in which the high court upheld federal regulation of wheat production on a family farm even when the wheat was grown for home consumption.

"In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity," Stevens writes.

"In assessing the scope of Congress' Commerce Clause authority, the court need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for so concluding," he says.

"Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA [Controlled Substances Act]," Stevens writes.

Joining Stevens' majority were Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Justice Antonin Scalia filed an opinion concurring in the judgment.

Justice Sandra Day O'Connor said in a dissent that if she were a California citizen, she would not have voted for the medical-marijuana provision, nor would she have supported the resulting California law allowing medical use of marijuana if she were a state lawmaker. But she said the high court's job was to uphold the fundamental distribution of power within America's federalist system of government, including a state's power to experiment.

"One of federalism's chief virtues ... is that it promotes innovation by allowing for the possibility that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country," Justice O'Connor writes in a dissent joined by Chief Justice William Rehnquist and Justice Clarence Thomas.

"Today the court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment," she says, without any proof that California's medical marijuana law was having a "substantial effect" on interstate commerce.

O'Connor says in upholding federal authority rather than state power, the high court is undermining earlier federalism rulings. In 1995, the court by a 5-to-4 vote struck down the federal Gun-Free School Zones Act. The majority found an insufficient connection between Congress's concern about students taking guns to school and the commerce clause to justify a federal assertion of power at local schools nationwide.

The trend continued in 2000 when the same 5-to-4 majority struck down a portion of the Violence Against Women Act that authorized victims of gender-based violence to sue their assailants in federal court. The court said that the problem of gender-based violence did not justify imposition of national laws upon states with similar laws already on the books.

Stevens says those cases are fundamentally different from the medical-marijuana case. He says in the earlier cases, the parties asserted that they fell outside Congress's commerce-clause power entirely because they had no relation to an economic enterprise.

"In contrast, the CSA regulates quintessentially economic activities: the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market," Stevens writes.

• Linda Feldmann contributed.

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