THE SUPREMES TAKE A HIT

The Federalist Smoke From Medical Marijuana Reaches The Supreme Court. Can
They Clear The Air On States' Rights, Pot, And The Constitution?

Does the federal government have the power to regulate - or, more
ominously, to prohibit - the cultivation, possession, and consumption of
marijuana by seriously ill patients who use the drug in compliance with
state medical marijuana laws? Does the wholly intrastate cultivation and
distribution of medicinal marijuana have any effect on interstate commerce
of the otherwise illegal drug? If you ask California medi-pot patients
Angel Raich and Diane Monson, the answer to each question is a simple and
emphatic "no."

Raich and Monson say they use medicinal cannabis in accordance with
California's Compassionate Use Act of 1996, which legalizes the use,
possession, and cultivation of the herb by seriously ill patients on the
recommendation of a doctor or other licensed caregiver. And because the two
women use medi-pot that is grown inside California state lines, for which
no money changes hands, they argue that the federal government has no power
under the Constitution's Commerce Clause to attempt to stop them.

Conversely, according to the federal government - represented, in this
case, by retiring U.S. Attorney General John Ashcroft and Drug Enforcement
Administration head Karen Tandy - the answer to each question is a
similarly simple and emphatic "yes." The feds say marijuana is an illegal
drug, listed as a Schedule I drug under the federal Controlled Substances
Act, meaning it has a high potential for abuse and no "medically
acceptable" use. Under the CSA, therefore, the feds are legally responsible
for halting all production and distribution of the drug, regardless of the
permissiveness of individual state laws. In short, the feds argue, their
regulatory power trumps any state law.

On Nov. 29, after more than two years of legal wrangling, federal Acting
Solicitor General Paul Clement and attorneys for Raich and Monson faced the
U.S. Supreme Court to argue the merits of this particular medi-pot dispute
/(Ashcroft v. Raich)/. It is now up to the Supremes to decide who is right.
Interestingly, whatever decision they make will likely have less impact on
the forward progress of the medical marijuana movement than it will on the
larger question of exactly how much overall regulatory power the feds have
over the individual states - in all matters of government. In short, the
high court's decision on medical marijuana is poised to determine the
benchmark for state sovereignty.

Compassionate Use

For nearly three years, Californian Angel McClary Raich, now 39, was
confined to a wheelchair, with multiple serious illnesses. Raich suffers
from scoliosis, temporomandibular joint disorder, endometriosis,
fibromyalgia, wasting syndrome, seizures, and an inoperable brain tumor -
among a host of other medical problems. In an attempt to control her
various conditions, her doctors have prescribed a myriad of pharmaceuticals
- - including Marinol, which is, ostensibly, pharmaceutical pot - but none
helped, and many made her conditions worse. By 1996 the Oakland mother of
two was partially paralyzed and wheelchair-bound - a circumstance caused,
at least in part, by the side effects of the 35 different drugs she'd
variously been prescribed. Finally, in 1997, as a last resort, one of
Raich's nurses recommended she try marijuana to control her complex and
interconnected assortment of symptoms.

In 1996, California voters had passed, by 56%, the state's Compassionate
Use Act, which allows seriously ill patients - including patients with
AIDS, cancer, glaucoma, and severe muscle spasms, among other afflictions -
to use marijuana, "where that medical use is deemed appropriate and has
been recommended by a physician." Potential medi-pot patients are vetted by
the state's health department; if accepted, they are issued a state
identification card and allowed to possess and cultivate plants for
medicinal use. Three years after Raich began using medi-pot she was able to
walk again. "I can't get out of bed without my husband's help. I am that
ill," she said. "But I got out of my wheelchair. I have the right to live
and to be as free of pain as I possibly can."

Meanwhile, in the Northern California town of Oroville, 47-year-old Diane
Monson was also suffering from intractable illness. Monson has a
degenerative spinal disease that causes chronic back pain and constant,
debilitating muscle spasms. Like Raich, Monson tried a host of
pharmaceuticals to control her symptoms - including the recently recalled
drug Vioxx - all without success. The synthetic drugs, Monson's doctor
explained in court documents, were either completely ineffective or
resulted in "intolerable" side effects. In 1999, Monson's doctor
recommended she try marijuana. It worked, and Monson began cultivating her
own cannabis - a total of six plants - for medical use, in compliance with
state law. "I thought I was doing everything good," she says. "I was
following state law."

Nevertheless, on Aug. 15, 2002, after spying her plants during a helicopter
fly-over, DEA agents raided Monson's home. Although both the Butte Co.
sheriff and the local district attorney agreed that Monson's cultivation
and use were legal, the DEA seized, then destroyed, all six of her plants.
"[The sheriff] got quite chesty with the federal guys," Monson recalled.
"It got quite ugly."

Among the Several States

Monson wasn't alone - since 2000 (and with increasing frequency after
September 11, 2001), federal narcotics enforcers have conducted numerous
raids on medical marijuana growing operations - including the high-profile
raid of the Wo/Men's Alliance for Medical Marijuana, a medi-pot dispensary
in Santa Cruz, which was aiding numerous terminally ill patients in the
area with the blessing of local law enforcement. Since passage of the first
medi-pot law in California in 1996, the feds have conducted approximately
40 such raids - destroying plants and leaving scared and sick patients in
their wake, says Rob Kampia, executive director of the Marijuana Policy
Project. The scare tactics have worked, but have also created a backlash.
Monson was shaken by the raid at her home, and Raich was increasingly
worried that her supply, cultivated by two of her caregivers and so far
untouched by federal drug warriors, was nevertheless in jeopardy.

In response, Raich and Monson, along with the two unidentified caregivers,
sued Ashcroft and Tandy in October of 2002, seeking a permanent injunction
prohibiting the feds from interfering with state-sanctioned use of the
medicinal herb. "I've never sued anyone in my life," said Monson. "So, to
sue John Ashcroft is a big decision."

The two women argued that the federal government's enforcement of the CSA
against their medicinal use of marijuana exceeds the feds' power under the
Commerce Clause of the Constitution. Article I, Section VIII, empowers
Congress "to regulate commerce with foreign nations, and among the several
states." Raich and Monson argue that their pot - grown from California
seeds, with California dirt and water, and supplied to them free of charge
with the legal blessing of the state - represents a special class of wholly
noneconomic, /intrastate/ commerce over which the feds have no control.
Raich and Monson are medicinal users and not recreational tokers - the
latter class of users, they argue, is still bound by federal regulations.
Furthermore, without access to medi-pot, Monson argues, she would suffer
immeasurably. For Raich, the stakes are even higher: Without access to
medicinal cannabis, she says, she will die. "I think I am entitled to .
that most fundamental right: to live."

A California federal district court ruled against Raich and Monson, but the
San Francisco-based 9th U.S. Circuit Court of Appeals reversed that
decision, opining that "the way in which the activity or class of
activities is defined is critical." By defining Raich and Monson as part of
a small class of medicinal users, the court determined that "the
intrastate, noncommercial cultivation, possession and use of marijuana for
personal medical purposes on the advice of a physician" is distinct from
illegal use and trafficking. The "limited medical use of marijuana .. does
not raise the same policy concerns regarding the spread of drug abuse" and
is "clearly distinct from the broader illicit drug market - as well as any
broader commercial market for medical marijuana - insofar as the medicinal
marijuana at issue in this case is not intended for, nor does it enter, the
stream of commerce."

Not surprisingly, Ashcroft and Tandy appealed to the Supremes.

Regulating Commerce

For more than 50 years, until quite recently, the Supremes had been content
to grant Congress broad authority to regulate so-called interstate commerce
- - even if the connection to interstate affairs was very tenuous. Until the
mid-Nineties, the court's jurisprudence in commerce matters followed the
precedent of a 1942 case, /Wickard v. Filburn/. In that case, the court
ruled that one person's noncommercial and noneconomic use of a product (in
/Wickard/, wheat grown on a family farm and used for household consumption)
may actually affect interstate commerce when considered in the "aggregate"
- - that is, by extension pooled with similar use by other family farmers
across the country. Following /Wickard/, the court generally reasoned that
regulating personal use of a given product was fully within the purview of
the feds' Commerce Clause powers.

But in 1995, the court ruled on the first of two cases that reshaped that
interpretation and affirmed instead the concept of federalism - the
sovereign right of states to be free from undue federal regulation. In
/U.S. v. Lopez/, a San Antonio high school senior who had brought a gun to
school was charged with a federal crime under the Gun-Free School Zones Act
of 1990. /Lopez/ argued that the prosecution was unconstitutional because
the government has no right to "legislate control over public schools." The
feds countered that Lopez's actions had a "substantial" effect on
interstate commerce: Crime increases insurance premiums and reduces the
"willingness" of people to travel to places they consider unsafe; firearms
in schools "handicap" the educational process, which negatively affects the
nation's economic well-being. The court disagreed, and invalidated the 1990
law. "If we are to accept the Government's arguments," Chief Justice
William Rehnquist opined, "we are hard pressed to posit any activity by an
individual that Congress is without the power to regulate."

Then, in 2001, the court rejected the government's determination to seek
civil remedies against a defendant charged with assault under the Violence
Against Women Act of 1994. In /U.S. v. Morrison/, the government argued
that gender-motivated violence would affect travel and business among
states; citing /Lopez/, the court disagreed. The power of the government
under the Commerce Clause may not "embrace effects upon interstate commerce
so indirect and remote that ... would effectively obliterate the
distinction between what is national and what is local and create a
completely centralized government," Rehnquist wrote.

Interestingly, in a concurring opinion, Justice Clarence Thomas wrote that
while he agreed with the court's decision, he disagreed with "the very
notion of a 'subjective effects' test" to determine whether an action
affects interstate commerce. "By continuing to apply this rootless and
malleable standard ... the court has encouraged the federal government to
persist in its view that the Commerce Clause has virtually no limits," he
wrote, and the court "will continue to see Congress appropriate state
police powers under the guise of regulating commerce."

Raich and Monson couldn't agree more.

Strange Bedfellows

Given the court's recent rulings, Raich and Monson's attorney Randy
Barnett, a former federal prosecutor and currently a professor of law at
Boston University, was optimistic as he prepared to argue his clients'
medi-pot rights at the high court. The Raich case, he said, will test the
limits of the court's recent rulings. To Barnett, his clients' use of
medi-pot is distinct and contained, without effect on interstate drug
trafficking - an argument that has attracted diverse support. Alongside
briefs filed by medical professionals and drug-war-hating,
states'-rights-friendly libertarians, the attorneys general of Alabama,
Louisiana, and Mississippi also filed in support of Raich, urging the court
to uphold states' rights - despite the fact that none of the three has a
medi-pot law on the books. (Of course, all three states have a considerable
recent history of "states' rights" defenses of racial segregation.)

Indeed, the case will test the court's predictable range of opinion. The
more conservative judges - like Rehnquist, who penned the /Lopez/ and
/Morrison/ decisions, and Justice Antonin Scalia, who voted with the
majority in the recent commerce cases - will be asked to extend their
staunch federalist positions to activities they seem predisposed to
dislike. Similarly, the court's more liberal justices, like Justice John
Paul Stevens, would likely endorse the affirmation of broader federal
regulatory authority than his conservative colleagues - but will he do so
at the very private cost of the health and well-being of Raich and Monson?

Eagle Feathers and Tomato Children

On Nov. 29, the contradictions of the court's competing values took center
stage, creating a very odd hour of oral arguments. Acting Solicitor General
Paul Clement tried to persuade the court that neither of the recent
commerce decisions affects the Raich case. Clement told the court that
Congress has deemed marijuana illegal and therefore the feds have a right
to enforce prohibition. But his assurance appeared to do little to appease
swing-vote Justice Sandra Day O'Connor. "As I understand it, California law
applies [to] homegrown marijuana for medical use," she said. "[That]
marijuana is not on the open market."

Clement was not deterred. "It is a bit optimistic to think that none of the
marijuana produced in compliance with [California] law would be diverted
into the open market," Clement replied. But isn't it California's
responsibility to enforce state law, O'Connor asked. "I don't think ...
[that] California has any ability to keep it out of the interstate market,"
Clement said. And if diversion cannot be averted, he continued, any
cultivation and distribution of pot would have a "profound effect on
interstate commerce."

But in this case, the homegrown cultivation is for personal, medicinal use,
interjected Justice Ruth Bader Ginsburg. In other words, she said,
"nobody's buying anything, nobody's selling anything." Not true, retorted
Clement, who argued that it would be impossible to know which pot was being
grown by individuals and which was being bought on the illegal market.
"There is no reason to believe that California will have some unnatural
ability to keep one part of the fungible market separate," he said. Carving
out an "island" of legal use, "while tempting," would have a "devastating"
effect on prohibition enforcement - it would be impossible to sort out
illegal, recreational users from the legal, medicinal users, he asserted.
Besides, he said, the "beneficial" substance in marijuana,
tetrahydrocannabinol, or THC, has been "isolated" by "experts" into
Marinol, a pharmaceutical available by prescription.

"But there is, in this record, a showing that [after Raich tried]
30-some-odd [prescriptions, including Marinol] that this [marijuana] is the
only one that works," Ginsburg said. "If we were to prosecute the
plaintiffs in this case, would there be any defense?" No, Clement said, and
legalizing use of the herb for any purposes will naturally extend to
recreational usage.

"Doesn't it depend on how you define the class [of users]?" Stevens asked.
"Is it ever permissible to define a class narrowly?"

"No," Clement replied.

"You're saying [the Controlled Substances Act] never has an
unconstitutional application?" Stevens asked, pushing Clement seemingly to
his logical limit.

Clement kept right on going. "Yes," he replied, "that would be our position."

So, the prohibitive decision of the federal government "trumps the
independent judgment of the doctors who prescribed the marijuana in this
case?" Stevens asked.

"To the federal government, medical marijuana is something of an oxymoron,"
he said. The government does not deem the use of marijuana medically
appropriate, he said, and has concluded that "whatever the benefits may be,
smoked marijuana doesn't have a future as medicine," primarily because
"smoking is harmful."

Given his turn before the justices, attorney Barnett reiterated his
clients' core assertion: "The class of actions involved in this case are
noneconomic and wholly intrastate."

Angel Raich receiving treatment.

"But can't you infer that if there is a large commercial market for any
commodity, that simple possession of the commodity is part of that [larger]
market?" Justice Anthony Kennedy asked. "Just because something is fungible
doesn't make it part of the market," Barnett replied.

Ivory tusks and eagle feathers are illegal regardless of where they're
obtained, noted Scalia. "[A]re those statutes likewise unconstitutional?"

"No," Barnett replied. "This class [of medi-pot users] has been isolated by
the state of California and is policed by the state of California."

At their best, the justices appeared confounded by the notion of wrapping
either their federalist or civil-libertarian arms around the evil weed. At
their worst, they appeared strung out on antiquated, fanciful stereotypes.
Scalia said he had heard that there are whole "communes" in California
growing pot for their members, claiming all of it is for medicinal
purposes. Justice David Souter said he doubted that medicinal users
wouldn't resort to buying their pot in "baggies" from street dealers. If
the court rules in Raich's favor, Breyer asked, wouldn't the government be
powerless to stop people from growing other harmful substances, like
heroin, cocaine, or "tomatoes that have genomes in them that one day will
create tomato children?"

In short, after an hour of oral arguments, it wasn't clear what the
justices were toking, or which way the medi-pot smoke would blow.

Win-No-Lose?

Outside the court, a gaggle of reporters and onlookers pressed close to
Barnett, Raich, and Monson. "This is the third in a trilogy of [Commerce
Clause] cases. They will either affirm or reject the trilogy. This case
will decide what the powers of Congress are now," Barnett told reporters.
"It is a matter of whether federalism is really for everybody regardless of
the ideological agenda" - and the specific liberties at issue. Indeed,
Barnett pointed out, if the court accepts the government's logic in the
Raich case, there will be few - if any - state actions that remain outside
federal control. "If the court adopts the reasoning that Congress can reach
any action that has any effect on the interstate market, then they have the
power to regulate everything," he said. "So, if you're growing tomatoes in
a plant box, then you're not going to the grocery store, and that's economic."

Ironically, the court's ruling in the Raich case may have only a nominal
effect on the progress of medi-pot-related drug-law reform. Ten states have
enacted medi-pot laws, most recently in Montana, where last month voters
supported the measure by 62% - so far the largest showing of voter support.
(In total, 26 states have recognized, in varying forms, the medical
benefits of cannabis.) And regardless of the outcome of the Raich case,
those laws will stand. "There will be no effect on [those laws]; they are
all still in effect. Patients [will still be] protected from arrest on the
state level," says Kampia of the Marijuana Policy Project - the only
question the court must decide is what role the feds will play in the
accelerating medi-pot juggernaut. "It's a nice place to be: If we win [the
case], the federal war on medical marijuana will end overnight. If we lose,
we're right back where we started. So, it's a win-no-lose situation."

Monson and Raich, on the other hand, have a great deal to lose. They're
afraid - and rightly so, says Barnett - that if they lose this case,
they'll become targets of federal wrath. Still, Monson said she is
confident. "I notice [the justices are] all aging. They're all going to be
in some medical situation soon, so they need to be careful what they do
today," she said. "Win or lose, the medical cannabis community is here;
we're not going anywhere and the federal government had better get used to
it. [They're] trying to cause fear among the medical cannabis community.
The federal government should grow up and realize we have the right to live."

A decision in the case is expected in the spring.