Court Weighs Challenge to Medical Marijuana

By David G. Savage

Nov. 29, 2004 2:02 PM PT

Times Staff Writer

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, the Rehnquist majority struck down a federal gun control law and said “mere gun possession” is not part of interstate commerce.

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 Administration.

“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 marijuana.

“This whole argument boils down to how many people are involved,” he said.

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 said.

“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 environmental laws.

“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.

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 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 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.