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Court to Hear Marijuana Case
Legality of Cultivating Plant for Medical Use Is at Issue

The Washington Post
November 29, 2004
Charles Lane

Local sheriff's deputies and U.S. Drug Enforcement Administration agents disagreed when they converged on Diane Monson's house in Oroville, Calif., two years ago.

The county cops accepted Monson's explanation for growing six marijuana plants: She had a doctor's permission to smoke it for back pain, so the pot was legal under the state's 1996 "medical marijuana" law.

But the DEA agents insisted that growing marijuana is still against federal law. They seized the plants and destroyed them.

Today that federal-state clash continues at the Supreme Court, where the justices will hear oral arguments on whether the Constitution permits the federal government to take action against those who use homegrown marijuana for medicinal reasons within states where it is legal to do so.

The case is the third medical pot case to reach the Supreme Court since voters overwhelmingly approved California's Compassionate Use Act. But the legal issues this time give the case importance well beyond the 11 states, mostly in the West, that since 1996 have eased or eliminated penalties for medical use of marijuana.
Among these states is Maryland, which last year set a maximum fine of $100 for medical users of less than an ounce of pot.

It has wider implications because Monson claims that federal drug busts of people such as her exceed Washington's authority under the commerce clause of the Constitution, which gives Congress the power to regulate trade "among the several states."

Last year, the San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled 2 to 1 that Monson was right. If the Supreme Court agrees, it could limit the federal government's power over not just the cultivation and use of marijuana, but also other activities.

Much modern government regulation exists because the Supreme Court articulated a broad definition of interstate commerce during the 20th century. This permitted the court to uphold, as exercises of Congress's commerce clause power, a wide range of national laws -- from the economic policies of the New Deal to the civil rights era ban on racial segregation in hotels and restaurants.

Perhaps the key ruling came in 1942, when the court held that the Roosevelt administration could enforce acreage controls against an Ohio wheat farmer who claimed his crop was entirely for his own use.

The court said that even subsistence farming could change the overall supply and price of grain; this "substantial effect on interstate commerce" triggered Congress's authority.

But in more recent years, the court has tightened its definition of interstate commerce.

In 1995, the court struck down a federal ban on gun possession within 1,000 feet of a school, ruling that Congress's claims that school gun violence had a "substantial effect" on the economy were implausible.

And in 2000, the court struck down a federal law giving women a right to sue rapists in federal court, ruling that such violence was not, "in any sense of the phrase, economic activity."

Monson and her co-plaintiffs -- Angel McClary Raich, an Oakland woman who suffers from a variety of painful chronic disorders, and two people identified as John Doe One and John Doe Two, who give Raich pot free of charge -- argue that these recent cases favor them, because using small amounts of marijuana they grow for themselves, or passing it along for "compassionate" reasons, cannot affect the broader market for the drug.

"This case is and always has been about federalism and state sovereignty," Monson's lawyers argue in their brief.

But the Bush administration counters that even small-scale use of a fungible commodity such as marijuana can affect price and quantity in the black market.

"[E]xcepting drug activity for personal use or free distribution from the sweep of [federal drug laws] would discourage the consumption of lawful controlled substances and would undermine Congress's intent to regulate the drug market comprehensively to protect public health and safety," the administration argues in its brief.

The federalism issue in the case has created unusual alliances. Three conservative Deep South states, Alabama, Louisiana and Mississippi, have filed a friend of the court brief supporting the marijuana users on states' rights grounds. "California is entitled to make for itself the tough policy choices that affect its citizens," the states' brief argues.

Legal analysts say the likeliest supporter on the court for the marijuana users may also be its most conservative member: Justice Clarence Thomas, who, though a harsh critic of drug abuse, has also written that the court must narrowly define Congress's commerce clause powers.

Meanwhile, a liberal environmentalist group, the Community Rights Council, filed a brief in support of the Bush administration, noting the group's interest in "ensuring . . . legislative flexibility to address national concerns."

In two previous cases at the Supreme Court, medical marijuana advocates have a split record.

In 2001, the court ruled 8 to 0 that there is no "medical necessity" exception to federal drug laws against producing and distributing marijuana, so California's "cannabis clubs" cannot escape prosecution by saying they save lives.

But in 2003, the court refused to hear the Bush administration's appeal of a 9th Circuit ruling that said doctors have a right to discuss marijuana as a treatment option with their patients. That left the 9th Circuit ruling on the books.

Thus, today's case is critical to the medical marijuana movement. With cannabis clubs unable to distribute pot legally, a doctor's right to recommend it would be meaningless unless users or their friends can grow it themselves.

The case is Ashcroft v. Raich, No. 03-1454. A decision is expected by July.


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