HIGH COURT HIGH ANXIETY

The Supreme Court's medical-marijuana case could send federalism up in
smoke.

Angel McClary Raich is seriously ill. Diagnosed with an inoperable
brain tumor and several complicating conditions, Raich found
traditional medical treatments to be of little use. Having exhausted
every legal alternative, her doctor recommended that she try marijuana
- - and it worked.

Like many individuals suffering from chronic pain or loss of appetite,
Raich found that marijuana alleviated her symptoms substantially. Yet
to continue with this treatment, Raich, and those who supply her with
marijuana free of charge, had to break federal law. Under California
law, Raich can possess and use marijuana pursuant to a doctor's
prescription or recommendation. Yet according to the federal
government, even such minimal marijuana possession approved by a
doctor remains illegal.

Fearing potential prosecution, Raich went to federal court seeking a
declaratory judgment that, among other things, the federal government
lacks the constitutional authority to prohibit simple marijuana
possession for personal medical use. Represented by noted libertarian
law professor (and sometime NRO contributor) Randy Barnett, Raich
argued that, at least as applied to her situation, the federal
Controlled Substances Act (CSA) is unconstitutional. This week, the
Supreme Court heard oral arguments in her case, Ashcroft v. Raich. At
stake is more than California's effort to legalize the medical use of
marijuana.

A decision for the federal government could send federalism and the
constitutional doctrine of enumerated powers up in smoke.

On behalf of Raich, Professor Barnett argued that the cultivation and
possession of marijuana "solely for the personal medical use of
seriously ill individuals, as recommended by their physician and
authorized by State law" is simply beyond the reach of federal power.

Under our constitutional structure, states retain "broad powers to
define criminal law, regulate medical practice, and protect the lives
of their citizens." Federal power, on the other hand, is limited to
the specific grant of enumerated powers in the Constitution, and does
not reach mundane questions of criminal law. No matter how worthy the
purpose of a given federal statute, it remains invalid if it exceeds
the constitutionally proscribed bounds.

The federal government maintains that it has the power to prohibit the
possession of any and all drugs, even in infinitesimal amounts, and
therefore that California's effort to legalize medical marijuana is
preempted by federal law. Under the CSA, it is a federal crime to
possess "schedule I" drugs like marijuana, with or without a doctor's
prescription. Like most federal regulatory statutes, the CSA was
enacted pursuant to Congress's power to "regulate commerce...among the
several states." As currently understood, this clause grants Congress
the broad power to regulate commercial enterprises and other
activities that have a "substantial effect" on interstate commerce.

There is little question that this entails the power to regulate the
production, distribution, and sale of pharmaceuticals, particularly
insofar as medical markets are of national scope. Congress can empower
the Food and Drug Administration to set conditions on the sale of
approved pharmaceuticals and may authorize the Drug Enforcement Agency
to arrest those who buy and sell drugs contrary to federal law.

In this case, the federal government also maintains that it can
prohibit the simple possession of a drug for medical purposes, even
when authorized and regulated by a validly adopted state law, and even
if conducted in a wholly noncommercial fashion.

Such power, the federal government asserts, is necessary to maintain a
comprehensive federal regulatory system for the use and distribution
of drugs.

Moreover, even the mere possession of drugs can "substantially affect"
interstate commerce, as there is a vibrant, albeit illegal, interstate
drug market.

This argument proves too much. Under the government's reasoning there
is no activity beyond Congress's grasp - a position the Supreme Court
has repeatedly rejected over the past ten years.

Essentially, the Justice Department maintains that the power to adopt
broad economic regulatory schemes necessarily entails the power to
reach the most inconsequential, noncommercial conduct that occurs
wholly within the confines of a single state. Even at the height of
federal power during the New Deal, the Supreme Court never authorized
an assertion of federal power as expansive as is at issue here. Should
the Court uphold the assertion of federal power in this case,
constitutional limitations on the exertion of enumerated federal
powers could well disappear.

Under the federal government's logic, Congress could enact an omnibus
child-care statute, regulating the care and feeding of children and
infants in private homes, because child care is often an economic
enterprise and the federal government could assert an interest in
regulating the market for child-care services.

Not even the infamous case of Wickard v. Filburn, in which the Supreme
Court upheld Congress's power to regulate the planting of wheat on an
individual farm, reached this far. At least farmer Filburn was engaged
in economic activity - planting wheat as part of a larger economic
enterprise (his farm). Angel Raich's marijuana possession, however,
lacks even this passing connection to economic activity.

It was on this ground that the Supreme Court struck down federal
statutes prohibiting gun possession in or near schools and penalizing
gender-motivated violence. In neither case could the activity be
remotely considered "economic" - nor can the local marijuana
possession at issue in Ashcroft v. Raich.

The importance of the case can be seen in the line-up of amicus briefs
supporting Raich's case. Noted conservative legal scholars, including
former Reagan and Bush Assistant Attorney General Douglas Kmiec and
former Bush solicitor general Charles Fried, signed or authored briefs
urging the Court to recognize that federal power cannot reach this
far. Several states have done the same. Few groups not directly
involved in antidrug efforts have lined up on the Justice Department's
side.

Some drug warriors fear that a victory for Raich could hamper federal
antidrug efforts because drug possession is much easier to prove than
is the intent to distribute. Yet possession of small amounts of
marijuana is rarely prosecuted under federal law as it is. State and
local governments are responsible for most enforcement of low-level
drug crimes.

If petty possession needs to be prosecuted, it can be under state law.
Just as the Supreme Court's invalidation of the Gun Free School Zones
Act did not produce a flood of firearms in the nation's schools,
striking down the application of federal law in this case won't end
marijuana prohibition. Even in California, marijuana possession for
anything other than medical use remains illegal.

If arrested, a medical-marijuana user bears the burden of proving that
it was for medicinal use.

Alabama solicitor general Kevin Newsom filed a particularly powerful
brief on behalf of several states with strong antidrug policies,
maintaining that California's medical-marijuana law poses no threat to
those states, such as Alabama, where marijuana remains illegal.

Alabama prosecutes drug crimes vigorously, including pot possession,
and has some of the harshest drug-possession penalties in the country.

Yet Alabama and other states intervened to "support their neighbor's
prerogative in our federalist system to serve as 'laboratories for
experimentation.'" While agreeing with drug prohibitionists that
California's medical-marijuana policy is "profoundly misguided,"
Alabama argued that upholding the federal prosecution of
medical-marijuana users is a greater threat than letting sick people
get high in California pursuant to a validly enacted state law.

From the earliest days of the Republic, the Supreme Court has
emphasized that the Constitution creates a federal government of
"limited and enumerated powers." There is no federal "police power"
authorizing Congress to cure every injustice or right every wrong.

Rather, the federal government was entrusted with those limited and
discrete powers necessary for national cohesion.

Matters of truly national import - matters that cannot be handled by
state and local governments acting alone or in concert - are entrusted
to the federal government. As made explicit in the Constitution's
texts, all others powers remain in the hands of the states and the
people.

Despite its apparent importance to drug warriors, Ashcroft v. Raich is
not about medical marijuana or drug prohibition. Nor is it about the
wisdom, or lack thereof, of allowing chronically ill individuals to
smoke weed for medicinal purposes.

Rather, it concerns the limits of federal power under the
Constitution. Federalism does not play favorites.

It limits the scope of federal power to pursue liberal and
conservative ends alike.

If a majority of the Court remembers this lesson, Angel Raich will get
to keep her medicine.

More important, the nation will keep the constitutional limits on
federal power.