Source: Los Angeles Times (CA)
Author: David G. Savage, Times Staff Writer
Published: November 29, 2004
Copyright: 2004 Los Angeles Times
Contact: [email protected]
Washington -- The Supreme Court today confronted a dispute between a
liberal state's rights and a zero-tolerance federal anti-drug policy, as
a top Bush administration lawyer argued that a federal ban on the use of
marijuana trumped California's medical marijuana law.
"Smoked marijuana really doesn't have any future in medicine," acting
Solicitor Gen. Paul Clement told the court. If thousands of Californians
were entitled to smoke marijuana to relieve their pain, he added, the
federal ban on this illegal drug could collapse.
Eight years ago, California's voters approved a limited exception to the
drug laws. Seriously ill people were given the right to use marijuana
for medical purposes if they had a doctor's recommendation.
But federal authorities have all but ignored the state's law — and 10
others like it — and insisted that they retain the power to raid the
homes of Californians who grow marijuana for their own use.
The Supreme Court took up the dispute not to decide whether marijuana is
a good medicine, but to rule on whether the federal authority to
"regulate commerce" extends to seizing homegrown drugs.
In the past decade, the high court's conservative majority, led by Chief
Justice William H. Rehnquist, has insisted that the federal power to
regulate commerce does not mean the federal government can regulate
everything. In 1995, for example, the Rehnquist majority struck down a
federal gun control law and said "mere gun possession" is not part of
In the medical marijuana case, the ideological tables were turned.
Liberal advocates used Rehnquist's words to challenge the federal
authority to seize homegrown marijuana.
"This is non-economic activity and wholly intrastate," said Boston
University Law Professor Randy Barnett, who represents the two northern
California women who say marijuana has been uniquely effective in
relieving their pain.
"They are not buying or selling" drugs, and therefore, should be
exempted from the federal regulation of commerce, he argued.
But during today's argument, none of the conservative justices, except
for Sandra Day O'Connor, picked up on Barnett's argument for limiting
federal authority. And two liberal justices who have argued for broad
federal power said they were skeptical of limiting Washington's power in
the area of drug laws.
Justice Stephen G. Breyer wondered about other illegal items.
"What if he grows heroin? Or cocaine?" he asked. Would that too be
outside the reach of federal regulatory law, he asked.
Not necessarily, Barnett replied. The government could ban all uses of a
particular product, such as heroin, if this total ban were essential to
maintaining control of it, he said.
That's a very complicated standard, Breyer responded. "Balancing those
factors are normally for Congress, not us," he said.
Breyer said he did not know whether marijuana was good medicine, but he
said the challengers should have taken their case to the Food and Drug
"Go to the FDA and say, 'Take this off the list of dangerous drugs.'
That would seem to be most obvious way to deal with this," Breyer said.
"Medicine by regulation is better than medicine by referendum."
Justice David H. Souter wondered how the federal ban could survive if
hundreds of thousands of Californians said they had a right to use
"This whole argument boils down to how many people are involved," he
If it were only the two California women — Angel Raich and Diane Monson
— who are the plaintiffs in the lawsuit, that would have little impact
on the market for marijuana, he said. But if hundreds of thousands could
claim the same right, the federal ban would be all but wiped out, he
"They are going to get it (marijuana) on the street" and claim they grew
it only for their personal use, Souter said.
Justice Antonin Scalia, a conservative proponent of limiting federal
power, said that possession of illegal items has been a crime under the
"What about ivory tusks? Or eagle feathers," he asked. "We can't tell
whether (those items) came through interstate commerce." Are those laws
unconstitutional? he asked.
Chief Justice Rehnquist, the foremost proponent of federalism, was
absent again today. He was at home undergoing treatment for thyroid
cancer, but Justice John Paul Stevens announced that Rehnquist planned
to participate in deciding the case.
Justice Clarence Thomas, who in the past has strongly argued for
limiting federal power, did not speak up during today's argument.
In its first medical marijuana case, the high court sided with federal
authorities three years ago and ruled that the Drug Enforcement
Administration could shut down cannabis clubs, which distributed
marijuana to sick patients.
The current case began as a challenge to the federal authority to punish
those who grow and use their own marijuana. The challengers won a ruling
in their favor from the U.S. 9th Circuit Court of Appeals, but the
Supreme Court voted to take up Ashcroft's appeal.
It will be several months before the high court hands down a ruling in
the case of Ashcroft vs. Raich.
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