JUSTICES SCRUTINIZE MEDICINAL POT

WASHINGTON - The Supreme Court on Monday confronted a dispute between
California's medical marijuana law and federal anti-drug policy, with
a Bush administration lawyer arguing that the government's
zero-tolerance law trumps the state measure.

"Smoked marijuana really doesn't have any future in medicine," acting
Solicitor Gen. Paul Clement told the court. If thousands of
Californians were entitled to smoke marijuana to relieve their pain,
he said, the federal ban on this illegal drug could collapse.

Eight years ago, California voters approved a limited exception to the
state's drug laws. Seriously ill patients were given the right to use
marijuana for medical purposes if they had a doctor's
recommendation.

Federal authorities, however, have all but ignored the state law - as
well as similar measures since enacted in 10 other states, including
Oregon - and insisted that they retain the power to raid the homes of
Californians who grow marijuana for their own use.

The Supreme Court took up the issue Monday, not to decide whether
marijuana is a good medicine but to rule on whether the federal
authority to "regulate commerce" extends to seizing homegrown drugs.

Outside on the court steps, one group of protesters called for
liberalized drug laws to protect patients. They were challenged by
another sign-carrying contingent who said stiff laws were needed to
protect young people from dangerous drugs.

Inside the court, the justices debated the reach of their rules on
federal authority. Although there was skepticism about the California
law, no clear consensus emerged.

Oregon legal officials and medical marijuana advocates are keeping a
close eye on the case. "We're following it real closely," state Deputy
Attorney General Pete Shepherd said.

If the high court upholds the California law, it's likely the Oregon
medical marijuana law would be protected from a similar federal
attack, he said.

However, if the California law is struck down, Oregon's law may still
survive, he said.

That's because the California statute does not require ongoing state
involvement in the medical marijuana program, while under Oregon's
law, the state issues cards to approved users of medical marijuana.

A key issue in the California case, Ashcroft vs. Raich, is the federal
Controlled Substances Act and whether it violates the commerce clause
of the U.S. Constitution, Shepherd said.

The commerce clause authorizes Congress to regulate commerce between
states, but attorneys for the two California plaintiffs argue that
Congress has no constitutional authority to regulate commerce within a
state - such as passing a law that makes illegal the cultivation of
marijuana for medical use, Shepherd said.

In the past decade, the Supreme Court's conservative majority - led by
Chief Justice William Rehnquist - has insisted that the federal power
to regulate commerce does not mean the federal government can regulate
everything. In 1995, for example, the Rehnquist majority struck down a
federal gun control law and said "mere gun possession" is not part of
interstate commerce.

In the medical marijuana case, the ideological tables were turned.
Liberal advocates used Rehnquist's words to challenge the federal
authority to seize homegrown marijuana.

"This is noneconomic activity and wholly intrastate," said Boston
University law professor Randy Barnett, who represents two Northern
California women who say marijuana has been uniquely effective in
relieving their pain. They are, Barnett said, "not buying or selling"
drugs, and therefore their use of marijuana should be seen as beyond
the reach of federal authority.

During Monday's argument, however, only one of the conservative
justices - Sandra Day O'Connor - picked up on Barnett's argument for
limiting federal authority. And two liberal justices who have argued
for broad federal power said they were skeptical of limiting
Washington's power in the area of drug laws.

Justice Stephen Breyer wondered about other illegal items. "You know,
he grows heroin, cocaine, (or) tomatoes that are going to have genomes
in them that could, at some point, lead to tomato children," said
Breyer. Are all these beyond the regulatory power of the federal
government, he asked?

Not necessarily, Barnett replied. The government could ban all uses of
a particular product, such as heroin, if the total ban were essential
to maintaining control of that substance, he said.

That's a very complicated standard, Breyer responded.

Breyer said he did not know whether marijuana was good medicine, but
he said the challengers should have taken their case to the Food and
Drug Administration.

"Medicine by regulation is better than medicine by referendum," Breyer
said.

Justice David Souter wondered how the federal ban could survive if
hundreds of thousands of Californians said they had a right to use
marijuana. "This whole argument boils down to how many people are
involved," he said.

If it were only the two women - Angel Raich and Diane Monson, the
plaintiffs in the lawsuit - then California's law would have little
impact on the marijuana market, he said. But if hundreds of thousands
could claim the right, the ban would be all but wiped out, he said.

Justice Antonin Scalia, a conservative proponent of limiting federal
power, seemed to side with the government. He noted that the mere
possession of illegal items has been a crime under environmental laws.
What about ivory tusks? Or eagle feathers? he asked. "We can't tell
whether (those items) came through interstate commerce or not. .. Why
is that different from this?" Scalia asked.

Rehnquist, the court's foremost proponent of limiting federal power,
was absent. He was at home undergoing treatment for thyroid cancer,
but Justice John Paul Stevens announced that Rehnquist planned to
participate in deciding the case.

O'Connor said Monday that California had a strong argument on
federalism grounds.

Justice John Paul Stevens said he was not convinced that federal
authorities always know best when it comes to deciding what is best
for patients. Does federal law "trump the independent judgment of the
physicians who prescribe it for the patients at issue in this case?"
he asked.