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Medical Marijuana Case Highlights Tension Between Federal and States Rights
[by Alan Dessoff] In a case with potential ramications broader than the issue at hand, the U.S. Supreme Court is considering whether to allow sick patients to smoke marijuana to relieve their pain if their doctors recommend it.

Medical marijuana is one of the most widely supported issues in drug policy reform. Numerous published studies suggest that the drug has medical value in treating patients with serious illnesses. According to a 1999 Gallup poll, 73 percent of Americans favor making marijuana legally available for doctors to prescribe in order to reduce pain and suffering. Laws that effectively remove state-level criminal penalties for growing and/or possessing medical marijuana are in place in Alaska, California, Colorado, Hawaii, Maine, Maryland, Montana, Nevada, Oregon, Vermont and Washington. Ten states plus the District of Columbia have laws that support medical marijuana but do not legally protect patients. The high court heard oral arguments in

from a degenerative spine disease. They tried using other drugs available legally to curb the pain they were experiencing but suffered side effects that worsened their conditions. Their doctors suggested they start using marijuana, and the women say it helps them cope with their pain. Monson grows her marijuana at her home, and Raich gets the drug from two California growers who use only California-produced supplies. California law and the law in 10 other states authorize medical use of marijuana, but federal law-the Controlled Substances Act of 1970-bans the substance as an illegal drug. In 2002, after federal Drug Enforcement Administration agents went to Monsons home and seized and destroyed her six marijuana plants, the women sued for an injunction to bar federal agents from taking their marijuana supplies. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an injunction, holding that the women were engaged in noncommercial activity only in California that was not covered by Congresss constitutional authority to regulate interstate commerce. The appeals court said the federal Controlled Substances Act was likely unconstitutional as it applied to Raich and Monson and that states could adopt medical marijuana laws if the drug were not sold, transported across state lines, or used for non-medical purposes. The Bush administration appealed the appellate courts ruling, and the Supreme Court agreed to hear the case. What were talking about here is the pos-

session, manufacture, and distribution of a valuable commodity for which there is, unfortunately, a ready market, said Acting Solicitor General Paul D. Clement, who argued the administrations appeal. He contended that under previous Supreme Court rulings, some decades old, the issue in the case was not what the two California women were doing but rather Congressional regulation of a category of economic activity. He maintained in his brief that what the women were doing is economic activity because it occurs in, and substantially affects, the marijuana market generally. Clement cited a 1942 Supreme Court ruling in Wickard v. Filburn that upheld Congressional authority to support wheat prices by controlling wheat production. In that case, the court held that the federal government could regulate even the wheat that a farmer grew for home consumption because all wheat production took place within a national market. That decision, wrote veteran New York Times Supreme Court reporter Linda Greenhouse, is regarded as one of the most far-reaching extensions of Congressional power that the Supreme Court has ever upheld. It opened the door for Congress to regulate activities at state and local levels that were seen as having an impact on commerce. Barnett argued that using marijuana for medical purposes was a noneconomic activity that Congress has no authority to regulate as interstate trade. There is no interstate connection whatsoever, he declared. He said that if the high court ruled for the

Ashcroft v. Raich, No. 03-14, in late November. A ruling is not expected until close to the end of the courts term in June.
While the immediate issue is medical marijuana, some legal observers say the courts decision could impact the constitutional authority Congress has to regulate areas that traditionally have been left to state and local governments. I think it will be a landmark, one way or the other, says Randy E. Barnett, a professor at Boston University School of Law, who argued for the plaintiffs before the Supreme Court. Two California women, Angel Raich and Diane Monson, began the case. Raich has an inoperable brain tumor, and Monson suffers


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administration in the case, it would replace Wickard v. Filburn as the most far-reaching example of Congresss power over interstate commerce. Reporters and other observers in the courtroom for the arguments say the justices appeared from their reactions and their questioning of the lawyers to be leaning toward the governments side. Justice Antonin Scalia noted that it is illegal to possess such items as eagle feathers or ivory under federal endangered species laws. Are those laws likewise unconstitutional? he asked. At one point in the arguments, Barnett said a ruling for the plaintiffs would have a trivial impact on the marijuana market. He disputed the governments estimate that up to 100,000 Californians might use medical marijuana if the court rules for the two women. Justice David Souter responded that the governments estimate was not implausible given Californias population of 34 million. Justice Stephen G. Breyer suggested that the women in the case take a different approach by asking the federal Food and Drug Administration to reclassify marijuana as appropriate for medical use. If the agency refused to do that, the women could sue. That seems to me the obvious way to get what they want, Breyer asserted. Medicine by regulation is better than medicine by referendum. Voters adopted the California law in a referendum in 1996. Justice Sandra Day OConnor appeared to some observers to be more sympathetic to the plaintiffs. She cited recent Supreme Court rulings against federal laws dealing with gun possession near schools and with violence against women. Those rulings that limit Congressional authority to regulate interstate commerce gave her some concerns about applying federal drug control laws in the marijuana case, OConnor said. The California law governing home-grown marijuana governed an area traditionally

regulated by the states, she added.