SUPREME COURT MAY TAKE UP POT CASE

WASHINGTON -- Nine years ago, the Supreme Court's conservative majority
proclaimed its intent to curb the federal government's power to meddle in
local and state affairs. A federal law making it a crime to have a gun near
a school cannot stand, the court said in a 5-4 decision, because simple gun
possession is not part of interstate commerce.

"There never will be a distinction between what is truly national and what
is truly local" unless the high court enforces limits on Washington's
power, said Chief Justice William H. Rehnquist.

Now, defenders of California's medical marijuana law are hoping the
Rehnquist court will follow its limited-government instincts to curb Atty.
Gen. John Ashcroft and the federal Drug Enforcement Administration.

If simple gun possession is protected from federal regulation, they ask,
why not simple drug possession?

In December, two liberal judges on the U.S. 9th Circuit Court of Appeals
agreed with that argument and issued an order that blocked DEA agents from
arresting patients who used home-grown marijuana to relieve pain.

The "non-commercial cultivation, possession and use of marijuana for
personal medical purposes on the advice of a physician" is protected by
California law and is beyond the reach of the federal government's power to
regulate interstate commerce, said Judges Harry Pregerson and Richard A.
Paez, both from Los Angeles. It is "different in kind from drug
trafficking," which is the usual focus of the federal narcotics laws, they
said in a 2-1 ruling.

Two months ago, however, Ashcroft's Justice Department asked the high court
to take up an appeal and reverse the 9th Circuit. The government's lawyers
saw no limit on the federal power to enforce the drug laws.

The Controlled Substances Act "establishes a unified and closed system of
controls," and it extends to "all instances of marijuana possession,
manufacture and distribution," the Justice Department said.

The appeal came before the justices Thursday in their last regularly
scheduled conference of this term, and they are likely to decide Monday
whether to review the case.

The case may well determine the fate of California's law as well as the
movement it spawned to establish a medical exception to strict federal drug
laws. If the court turns away Ashcroft's appeal, it would leave untouched
the 9th Circuit's ruling that protects a patient's right to use home-grown
marijuana.

The state's voters passed Proposition 215 in 1996. Known as the
Compassionate Use Act, it says "seriously ill Californians have the right
to obtain and use marijuana for medical purposes where [it] has been
recommended by a physician."

Since then, eight other states have enacted similar laws: Alaska, Colorado,
Hawaii, Maine, Nebraska, Oregon, Vermont and Washington. And several more,
including Arizona, have passed measures that recognize the medical benefit
of marijuana.

From the start, however, federal authorities have insisted that the use of
marijuana remains illegal, regardless of what the states or physicians say.

Three years ago, the high court agreed with Ashcroft's department and ruled
that federal authorities may shut down clubs or clinics that dispense
marijuana in California.

Last year, however, the justices turned away Ashcroft's appeal of a ruling
that shielded doctors from being threatened with losing their right to
prescribe medicine if they recommended marijuana to patients.

The new case, Ashcroft vs. Raich, tests whether the federal enforcement
power extends to people who do not buy marijuana but grow it. The lawsuit
challenging the federal government was filed on behalf of two women whose
doctors say their lives depend on having continued access to cannabis.

In August, 2002, DEA agents raided the Butte County home of Diane Monson,
who suffers from a degenerative disease of the spine. The agents seized and
destroyed the six cannabis plants she was growing.

The other plaintiff, Angel McClary Raich, suffers from several chronic
diseases, including an inoperable brain tumor, and relies on several
friends who grow marijuana for her. Her husband, Oakland attorney Robert
Raich, argued in the 9th Circuit in defense of her right to use home-grown
marijuana.

His legal brief relied heavily on Rehnquist's opinion in the 1995 gun
possession case. "It is a pretty far-fetched argument for them to say this
involves interstate commerce, because there is no commerce and no
interstate activity," he said. "What could be a more fundamental right than
the right to use the medicine at home that you need to stay alive?"

The debate about federal authority over commerce is one of the oldest in
constitutional law.

For decades, the Supreme Court struck down state measures that interfered
with the free flow of goods. Beginning in the late 1930s, the court adopted
a much broader view of the federal commerce power and used it uphold
national laws that set minimum wages, protected union organizing, outlawed
racial discrimination in the workplace and protected clean air and water.

In the 1990s, the Rehnquist court pushed back and insisted that the federal
power over commerce had limits.

In a series of 5-4 rulings, the court struck down laws that had extended
federal authority. Four years ago, the high court voided part of the
Violence Against Women Act, which allowed victims of sexual assaults to sue
attackers in federal court.

Rehnquist said a sexual assault within a state was not a "commercial" act,
and therefore was beyond the reach of federal authority.

Nonetheless, Ashcroft's department insists those rulings do not limit the
federal authority over home-grown marijuana.