IT'S STATE LAW VS. FEDERAL LAW IN MEDICAL MARIJUANA CASE

WASHINGTON -- The Supreme Court on Monday confronted a dispute between
California's medical marijuana law and federal anti-drug policy, with a
Bush administration lawyer arguing that the government's zero-tolerance law
trumps the state measure.

"Smoked marijuana really doesn't have any future in medicine," acting
Solicitor Gen. Paul D. Clement told the court. If thousands of Californians
were entitled to smoke marijuana to relieve their pain, he said, the
federal ban on this illegal drug could collapse.

Eight years ago, California voters approved a limited exception to the
state's drug laws. Seriously ill patients were given the right to use
marijuana for medical purposes if they had a doctor's recommendation.

Federal authorities, however, have all but ignored the state law -- as well
as similar measures since enacted in 10 other states -- 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 issue Monday, 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.

Outside on the court steps, one group of protesters called for liberalized
drug laws to protect patients. They were challenged by another
sign-carrying contingent who said stiff laws were needed to protect young
people from dangerous drugs.

Inside the court, the justices debated the reach of their rules on federal
authority. Although there was skepticism about the California law, no clear
consensus emerged.

In the past decade, the Supreme 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
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 noneconomic activity and wholly intrastate," said Boston
University law professor Randy E. Barnett, who represents two Northern
California women who say marijuana has been uniquely effective in relieving
their pain. They are, Barnett said, "not buying or selling" drugs, and
therefore their use of marijuana should be seen as beyond the reach of
federal authority.

During Monday's argument, however, only one of the conservative justices --
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. "You know, he
grows heroin, cocaine, (or) tomatoes that are going to have genomes in them
that could, at some point, lead to tomato children," said Breyer, spinning
out what he conceded was a complicated hypothetical question. Are all these
beyond the regulatory power of the federal government, he asked?

Not necessarily, Barnett replied. The government could ban all uses of a
particular product, such as heroin, if the total ban were essential to
maintaining control of that substance, he said.

That's a very complicated standard, Breyer responded. "Balancing those
factors would be for Congress. That's what we'd normally say," he said. A
former Senate staffer, Breyer consistently has urged the court to uphold
acts of Congress.

Later in the argument, 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 women -- Angel Raich and Diane Monson, the
plaintiffs in the lawsuit -- then California's law 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," Souter said, and
claim they grew it only for their personal use.

Justice Antonin Scalia, a conservative proponent of limiting federal power,
seemed to side with the government. He pointed out that the mere 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 or not. ... Why is that different
from this?" Scalia asked.

Rehnquist, the court's foremost proponent of limiting federal power, was
absent Monday. 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 strongly has argued for limiting
federal power, did not speak up during Monday's argument.

O'Connor is often the swing vote in close cases, and she said Monday that
California had a strong argument on federalism grounds.

"As I understand it, none of this home-grown marijuana will be on any
interstate market," she said. "And it is in the area of something
traditionally regulated by states. This limited exception [to the drug
laws] is a noneconomic use -- growing for personal use."

But Clement said her premise was wrong.

"Drugs are fungible," he said. "I think it might be a bit optimistic to
think that none of the marijuana that's produced consistent with California
law would be diverted into the national market for marijuana. ... The
reality is there's a $10.5 billion market -- an illegal market, albeit --
in marijuana in the United States on an annual basis."

Justice John Paul Stevens said he was not convinced that federal
authorities always know best when it comes to deciding what is best for
patients. Does federal law "trump the independent judgment of the
physicians who prescribe it for the patients at issue in this case?" he asked.

A doctor for Raich said she might not be able to live without marijuana.
She suffers from an inoperable brain tumor and a wasting disease, and other
prescription drugs failed to relieve her pain and help maintain her weight,
he testified.

The government's lawyer said federal law outweighs the testimony of
doctors. "The idea of medical marijuana is something of an oxymoron,"
Clement told Stevens. "Notwithstanding that some doctors may make a
different judgment about a particular patient ... the federal regulatory
regime does not allow individual patients or doctors to exempt themselves
out of that regime."

In its first medical marijuana case, the Supreme 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 9th U.S. Circuit Court of Appeals, but the Supreme
Court voted to take up Attorney General John Ashcroft's appeal.

It will be several months before the Supreme Court hands down a ruling in
the case of Ashcroft vs. Raich.

If the court rules for Ashcroft, the decision will weaken but not repeal
the medical marijuana laws in California, Alaska, Arizona, Colorado,
Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington. Those state
measures prevent police and local prosecutors from punishing patients who
use marijuana for medical purposes.

But a victory for Ashcroft would give federal agents new encouragement to
raid homes and seize marijuana plants.