SANITY'S AWOL IN WAR ON DRUGS

The latest battle in the great War on Drugs showed up in the Supreme
Court on Monday, with the feds arguing that if sick or dying people
are allowed to use homegrown marijuana for their pain, the price on
the streets will go down.

In the logic of the war department, this would have a terrible impact
on interstate commerce, where, presumably, Congress has an interest in
promoting the sale of marijuana.

If this strikes you as crazy, it's because you don't understand the
law, the necessary reach of a government that is grounded on the
Commerce Clause of the Constitution. We are talking now of the stuff
of lawyers and judges, who, when it comes to drugs, display no
immunity from going AWOL from reality.

First, the facts of the two cases out of California that the top court
heard this week. One involved a woman with inoperable brain cancer,
the other a woman whose severe back spasms require marijuana.

By referendum, California voters passed a law permitting the use of
marijuana under a doctor's order to relieve a variety of medical
ailments. Nine other states followed suit.

The federal drug enforcers answered by busting both women. The U.S.
Court of Appeals in California ruled for them on the grounds their
conduct did not fall within Congress' authority to regulate interstate
commerce because this had nothing to do with any kind of commerce,
much less interstate.

You might think the government would let cases like this pass or at
least show benign neglect. We're not talking about legalization of
narcotics here, just medicalization, just humanity.

But the War on Drugs has no interest in such sentimentality. This war
is 90 years old with nothing to show but failure, combined with
rampant corruption.

It doesn't matter. The more we lose, the more we spend. In the Supreme
Court arguments, the government estimated that the marijuana market
alone accounts for $10.5 billion a year - then asked the court to
knock out California's law in the name of helping the war succeed!

The argument that homegrown pot had an impact on interstate commerce
rests on a 1942 Supreme Court decision that allowed the feds to punish
a wheat grower for withholding his home consumption from the
Agriculture Department's regulations. The reason: If he hadn't used it
for his family, he'd have bought it in the marketplace, thus raising
the price of wheat, which Congress wanted.

Justice Anthony Scalia said he had always thought that case was a
joke, but now he opined that it was the law. Scalia, who votes for
states' rights except when he doesn't - see Gore vs. Bush - said that
the old wheat ruling looked right to him now.

Students of Scalia, the sharpest man on the court, might have thought
he could separate the wheat from the weed. But the politics of drugs
has a way with the finest of minds, and according to reporters
covering the court, the majority is going to overturn the California
law.

I asked Yale Kamisar, the legendary law professor at Michigan Law
School, what he thought about this apparent reliance by the court on
the ancient wheat decision.

"I look at it this way," he said. "If they're right, the Congress can
ban breast-feeding because it has an economic impact on the interstate
sale of milk."