MARIJUANA CASE TESTS LIMITS OF FEDERALISM

It is always amusing (if seldom enlightening) to observe lawyers
pontificating on medical topics. The medical marijuana case, Ashcroft
v. Raich, heard by the U.S. Supreme Court on Monday, however, will
turn not on whether lawyers and justices know much about medicine --
hint: they don't -- but on whether certain conservative justices
really mean it when they say they believe the Constitution gives state
governments a good deal of discretion in using what the political
scientists call "police powers" and limits the power of the national
government to override them.

Two California women and California law are at the center of the
case.

Angel Raich, having tried dozens of prescription medicines, uses
marijuana to alleviate the effects of an inoperable brain tumor. She
believes she would be dead if she didn't use it. Diane Monson suffers
from chronic back pain and muscle spasms caused by a spinal disease.
Since California voters approved Proposition 215 in 1996, the two
women's activities are legal under California law. But federal law
still prohibits any use, possession, production or sale of the
cannabis or marijuana plant.

When the Supreme Court considered a different medical
marijuana-related case in 2001, it did not rule that the federal
supremacy rule automatically overturns the laws of California and 10
other states -- two added by voters this year -- that allow sick
people to use marijuana. It will not so rule in this case because
federal supremacy is not at issue. At issue, interestingly enough, is
the Constitution's commerce clause, which allows Congress "to regulate
commerce with foreign nations, and among the several states."

The original purpose of the commerce clause was to prevent state
governments from erecting barriers to commerce. During the New Deal,
however, the clause was used to expand the power of the federal
government to regulate almost anything, based on the theory that
almost any activity affects interstate commerce, however indirectly or
theoretically, so the national government can regulate just about
anything that moves.

Most conservatives have deplored this expansion of federal regulatory
power, and the conservatives on the Supreme Court have sought to
rectify the balance (as they would put it) by restoring a little power
to state governments to handle certain kinds of regulation without
federal interference, notably in the Lopez and Morrison cases. Some
observers even believe that Chief Justice William Rehnquist sees such
a restoration of proper federalist balance as the legacy he hopes to
leave when he retires.

So here we have a case where the state of California has legislated
(by referendum) in a matter of health and safety, an area that
traditionally has been left to the states. Furthermore, the activities
of Raich, Monson and the two caregivers who grow marijuana for them
and are parties to the case as "John Does" involve no commerce at all,
let alone interstate commerce. Not only is everything they do done
within the state of California, but no money changes hands.

If there's no interstate commerce, there's no legal justification for
the federal government to interfere with Raich's and Monson's efforts
(in conjunction with duly licensed physicians) to treat their
illnesses. It will be interesting to see what the conservatives -- and
the liberals -- on the court do with this case.