MEDICAL POT LAW NOT A 'NATIONAL THREAT'

Should the U.S. Government Butt Into Local Affairs Without Showing It Is Needed Or Wanted?

In Ashcroft v. Raich, the Supreme Court will decide a lawsuit brought
by a pair of very sick California women, Angel Raich and Diane Monson.
Both grow an unusual medicine in their back yards: marijuana. Under
California law, the drug is legal under doctor's orders. Even so, the
Department of Justice says federal agents can prosecute both women.

To preserve their access to needed medicine, Raich and Monson
challenged the U.S. attorney general in court. Their basis for doing
so was the Constitution's Commerce Clause, which says government can
regulate "interstate" commerce. According to Raich and Monson, their
drug is grown at home for personal consumption. It's lawful under
California law. And it's not sold to people outside the state. So they
argue it's not "interstate" commerce that the federal government can
regulate.

The case has provoked a panic attack among some liberals. The New York
Times, for example, suggests the Commerce Clause argument could play
into the hands of conservatives, who want to squash government power.

But that objection is short-sighted: Ashcroft v. Raich is not just
about limited government. It's also about political accountability,
which should be dear to conservatives and liberals: That principle,
after all, is advocated by liberal law scholar Cass R. Sunstein, who
argues the Constitution is designed to promote "careful," "thoughtful"
(and hence "accountable") government action.

At a minimum, "accountability" means acting on "evidence" -- in this
case, that there's an "interstate" problem for the feds to address.
That's something the government hasn't tried to prove. As a number of
briefs before the Supreme Court observe, the Bush administration
offers "nothing in the way of evidence" that medical marijuana is of
national, as opposed to local, concern.

There's no excuse for this lapse of proof. California's law is hardly
a self-evident threat to anyone. Ronald Reagan's top constitutional
lawyer, Douglas Kmiec, characterizes the law as "circumspect." For
people with dire medical conditions, it may be too circumspect. It
doesn't "legalize" medical marijuana -- in the sense you could buy it
at a drugstore.

According to California courts, it doesn't even necessarily save sick
people from arrest. In most parts of California, where there's no
registry of ill people needing marijuana, the law merely gives
patients a chance to persuade a jury that a doctor approved its use
after they've been hauled into court.

There's no evidence the law will stymie other states' drug policies.
That's common sense: Interstate drug trafficking (and California drug
trafficking, for that matter) remains illegal, subject to interdiction
and prosecution.

There's also no reason to think the law will frustrate California
police. True, officers must sort sick people from recreational users.
But that's what police do all the time: as when Florida officials
investigated Rush Limbaugh for using black market OxyContin (it's
legal under doctor's orders). Given that chemotherapy and advanced
AIDS patients benefit most from medical marijuana, it's laughable to
think state agents will be so easily confounded.

Indeed, it would have been surprising if the federal government
offered proof to the contrary: The Constitution gives states, not the
federal government, "primary" control over criminal law enforcement --
power they have exercised without controversy for two centuries.
Criminal law is an area of special state expertise.

All these considerations make this case the easiest of calls. In his
brief before the Supreme Court, Professor Kmiec stressed that the
Commerce Clause serves a distinct purpose -- it's a safety hatch when
states are "incompetent" to protect national interests. In a famous
court argument, the legendary Daniel Webster added that the feds must
demonstrate that purpose -- by showing a need to stop one state from
harming another's citizens.

Faced with a moderate law, and no proof there's an interstate problem,
the case boils down to this: Can federal officials butt into local
affairs without showing they're needed or wanted at the local level?

Under a Constitution that prizes thoughtful government action, respect
for individual liberty, and deference to state policy, the answer
shouldn't be hard, even for The New York Times. It is, in a word, "no."