LET STATES MAKE THIS CHOICE

The court could clear up doubts about the power of prosecutors to
harass medical marijuana patients

T he U.S. Supreme Court's decision to hear a case about medical
marijuana should clear the air in a controversy over the power of the
federal government to intervene in states' medical decisions.

On Monday, the court agreed to hear the Bush administration's appeal
of the 9th U.S. Circuit Court of Appeals ruling in Ashcroft v. Raich.
A panel of the appeals court ruled 2-1 in December that the federal
government overstepped its constitutional authority in raiding
patients whose medical marijuana activities were noncommercial and did
not cross state lines.

The ruling said that "cultivation, possession, and use of marijuana
for medicinal purposes and not for exchange or distribution is not
properly characterized as commercial or economic activity" and is thus
outside federal jurisdiction.

We hope we see a trend of federalism here, with states being free to
decide medical marijuana issues without federal interference.

Last summer, the Supreme Court let stand a lower court ruling that
rejected the Justice Department's claim that the Controlled Substances
Act empowered federal authorities to punish physicians who recommend
marijuana to patients.

The Raich case was a second victory for medical marijuana proponents,
but only in 9th Circuit states that permit medicinal use of marijuana:
Alaska, California, Hawaii, Nevada, Oregon and Washington.

The significance of the high court's granting review on Raich is that
patients across the country could be insulated from federal raids,
arrests and prosecutions when they legally use marijuana as medicine
under state laws.

It's possible the high court could reverse the 9th Circuit ruling.
Patients still would be protected by state law, but that could be a
thin shield to wield in costly defenses against federal
prosecutors.

The judge who dissented in the 9th Circuit ruling based his
disagreement on a 1940s interstate commerce case in which the Supreme
Court said Congress had the power to regulate what a farmer grew on
his own farm as a way to support the price regulation system. The
farmer in question was not just feeding his produce to his family and
himself, but also to his livestock, which he sold in interstate commerce.

The Raich case has no connection to interstate commerce. The seeds,
soil, water, fertilizer, even the lumber used in the cultivating
process, originated and remained within California. Also, it is a
stretch to say that "commerce" is involved. The medicine in the case
of one plaintiff is grown by the patient for whom it has been
recommended by a physician. The lead plaintiff gets her medicine from
two caregivers who grow it legally under state law and give it to her
without charge.

Diseases such as cancer, AIDS and multiple sclerosis and afflictions
such as glaucoma and chronic pain don't discriminate geographically or
on the basis of patients' political beliefs. Political conservatives
and liberals should find common cause in pushing for medical marijuana
solutions made in their state legislatures rather than by federal
bureaucrats pushing electoral agendas.