POT AND FEDERAL POWER

THE FEDERAL government's crusade against users of "medical marijuana," even
in states that allow sick people to have the drug, is obnoxious.

But a case argued before the Supreme Court on Monday is only superficially
about pot and illness.

At a deeper level, it is the latest test of Congress's power to regulate
interstate commerce, the constitutional authority that underlies the modern
regulatory state.

While it would be satisfying to see the court bat down the Justice
Department's heavy-handed tactics, such a holding could be dangerous to
civil rights enforcement, environmental protection and more.

Since the New Deal era, the Supreme Court has construed the Constitution's
commerce clause broadly.

Without such an understanding, Congress would have been unable to make
federal laws requiring a minimum wage, protecting wetlands and prohibiting
racial discrimination in private employment, to name a few examples.

Recently the court began making clear that the authority is limited to
issues that really have something to do with economics; so, for example,
gun possession close to schools and sexual violence can't be regulated
under the commerce clause.

We sympathize with the notion of limits, without which Congress could make
law on any subject it wished -- not what the framers of the Constitution
envisioned. But limit the power too much, and Congress will be left without
adequate tools to legislate in a modern country.

The current case is an excellent illustration.

Federal drug laws unquestionably regulate interstate commercial activity;
that is, the market for illicit drugs.

But the plaintiffs in this case, patients who say that no other drug
alleviates their pain, argue that such laws also criminalize noneconomic
activity -- the growing and use of marijuana within a single state for
personal, medical, noncommercial purposes. The plaintiffs consequently
convinced the U.S. Court of Appeals for the 9th Circuit to block any
enforcement against them by the federal government.

This reasoning may sound attractive, but don't be fooled.

The court long ago held that a farmer who grew wheat for his own
consumption could not escape farm laws passed under the commerce clause.

To hold otherwise for drugs would be deeply destabilizing. Some endangered
species protected by federal law, for example, exist only in a single state
and can be threatened by noneconomic activities. The Supreme Court can't
allow people to violate otherwise valid regulations because their specific
violations are not economic in nature.

We think Attorney General John D. Ashcroft ought to find better ways to
spend his time and the nation's resources.

But where Congress is regulating genuine commercial activity, such as the
interstate market for marijuana, the court's deference to it should be
nearly absolute.