MEDICAL MARIJUANA: READ BETWEEN THE LINES

DURHAM -- It is critical for Americans to understand what the Supreme
Court decided -- and what it did not decide -- in its medical
marijuana ruling last week. The court held, 6-3, that the Constitution
authorizes Congress to prohibit the local cultivation and use of
marijuana in states allowing such activity. But the justices did not
conclude that the federal prohibition on medical marijuana is sound
ethically or scientifically.

To the contrary, the court suggested just the opposite. Now Congress
and the president should act to allow ill individuals to possess small
amounts of marijuana for medicinal purposes.

Under settled Supreme Court precedent, Congress may regulate a
commodity produced for non-commercial use within a state if the
failure to regulate it might impede federal regulation of the
interstate market in that commodity. Applying this bit of
constitutional law to locally grown and used marijuana, the court
decided that "Congress had a rational basis for concluding that
leaving home-consumed marijuana outside federal control" would affect
the supply and demand nationally, because of the "likelihood" that the
high demand for marijuana in the interstate market would draw
marijuana grown for home consumption into that market. The court
reasoned that "the diversion of homegrown marijuana tends to frustrate
the federal interest in eliminating commercial transactions in the
interstate market in their entirety."

The decision means that people who use marijuana because their doctors
recommend it to alleviate pain may be prosecuted for violating federal
drug laws. Two such people are the plaintiffs in the Supreme Court
case, Angel Raich and Diane Monson, who suffer from several serious
medical conditions. After conventional treatment and pain management
options failed, their doctors prescribed marijuana and later concluded
that it is the only drug that affords effective treatment and symptom
control. Both Raich and Monson rely heavily on medical marijuana to
function.

In light of these heartbreaking facts, the court was clearly uneasy
about the prospect of approving application of the federal drug law to
Raich's and Monson's situations -- "the troubling facts of this case,"
as the majority opinion put it -- even if Congress could rationally
believe that a medical marijuana exception would undercut enforcement
of the federal ban on recreational marijuana use to some extent.
Justice Stevens wrote for the majority that "(t)he case is made
difficult by respondents' strong arguments that they will suffer
irreparable harm because, despite a congressional finding to the
contrary, marijuana does have valid therapeutic purposes."

He stressed that the question before the court "is not whether it is
wise to enforce the statute in these circumstances." Stevens even
concluded the court's opinion by tendering other "avenue(s) of relief"
- -- specifically, the statutory "procedures for the reclassification"
of marijuana, through which medicinal uses of the drug could become
legal, and "the democratic process, in which the voices of voters
allied with (Raich and Monson) may one day be heard in the halls of
Congress."

The Supreme Court, therefore, voiced well-grounded concerns about the
wisdom and compassion underlying Congress' refusal to allow medical
marijuana. Yet the justices put their misgivings aside, recognized the
distinction between law and politics, and executed their
responsibilities admirably by deciding the case based on their
considered judgment that the Constitution required deference to
Congress. By engaging in judicial restraint, moreover, the court
avoided jeopardizing many other federal statutes, ranging from drug
laws to environmental protections to civil rights acts.

Now it is time for Congress and the president to step up and earn the
deference our Constitution confers.

Congress has the right to prohibit medical marijuana, and the
president therefore has the right to order the Justice Department to
pursue sick people who use marijuana for medicinal purposes. But that
legal reality does not make either exercise of federal power the right
thing to do. Congress should read between the lines of the Supreme
Court's decision, register the good sense contained therein and
seriously consider reclassifying marijuana to provide for some medical
uses.

In the meantime, Congress should make an exception to the federal ban
for medical marijuana use permitted under state law. And until
Congress acts, the president should order the Justice Department not
to bother the Angel Raiches and Diane Monsons of our world.

It is painfully perverse that the federal government would expend any
of its scarce law enforcement resources on making life even more
difficult for people who seek only to manage their enormous suffering.
The Supreme Court's medical marijuana decision provides scant
authority for the propriety of such government conduct.