OFF THE INTERSTATE

Case Provides Interesting Questions On States' Rights

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."