MEDICAL POT

Angel Raich and Diane Monson had hoped the U.S. Supreme Court would
decline to review a decision last December by the 9th U.S. Circuit
Court of Appeals in San Francisco that sanctioned their production and
use of marijuana for ostensible medical purposes. However, the high
court agreed this week to hear the Bush administration's appeal of the
9th Circuit ruling, much to the disappointment of the two California
women, as well as marijuana advocates from San Francisco to San Diego.

That's because the 9th Circuit ruling has been the marijuana
movement's biggest legal victory. And a reversal by the nation's
highest court could throw out California's eight-year-old medical
marijuana law, not to mention similar laws in eight other states.

But the time has come for the justices to settle, once and for all,
whether states have the power to enact laws, like California's
Proposition 215, that clearly clash with federal anti-drug laws.

The matter appeared settled in 2001, when the Supreme Court ruled,
8-0, that there was no medical marijuana exception to the federal
Controlled Substances Act or the Food, Drug and Cosmetic Act. The
former classifies marijuana as a Schedule I substance with a high
potential for abuse. The latter requires that a drug be scientifically
proven safe and effective before it can be used for medicinal purposes.

Yet, the 9th Circuit took no heed of high court's 2001 ruling (which
overturned a previous 9th Circuit decision). In December, the lower
court declared that the Controlled Substances Act was "likely
unconstitutional" as applied to Raich and Monson and their marijuana
suppliers.

Meanwhile, state and local officials in California have been left to
decide for themselves whether to abide by Proposition 215, which allows
people to smoke pot as long as they have a doctor's recommendation, or
to respect federal law. Earlier this year, San Diego Police Chief
William Lansdowne informed the City Council: "Our current policy
protects the rights of qualified patients and primary caregivers to
have access to legal amounts of marijuana."

Only problem is, federal law says that there is no legal amount of
marijuana and that neither patients nor their putative caregivers have
a right to marijuana, no matter what Proposition 215 says.

The Constitution clearly establishes that state law is subordinate to
federal law, as the Supreme Court affirmed in its 2001 ruling against
Proposition 215. So, there is a strong legal argument that the only
way the state proposition can be lawfully implemented is if Congress
amends the Controlled Substances Act and the Food, Drug and Cosmetics
Act to permit Raich and Monson and other patients to use marijuana.