MEDICAL MARIJUANA CASE PUTS SUPREME COURT IN CURIOUS SPOT

WASHINGTON -- A lawyer for two women who use marijuana as a painkiller told
the U.S. Supreme Court yesterday that the federal government has no
constitutional authority to outlaw the cultivation of the drug for medical
use within a state.

He urged the justices to uphold a federal appeals court decision protecting
his clients from prosecution for what is a recognized medical treatment
under California law and in 10 other states.

But the Bush administration's top courtroom lawyer countered that the ban
on the possession of marijuana contained in the federal Controlled
Substances Act was a legitimate use of Congress' constitutional authority
to regulate interstate commerce even in light of recent Supreme Court
decisions placing limits on that power.

Yesterday's argument combined poignant facts -- one of the women who
challenging the federal law, Angel McCleary Raich, suffers from several
life-threatening conditions, including an inoperable brain tumor -- and
technical issues about the interplay of state and federal law.

"This activity is non-economic and totally intrastate," said Boston
University law professor Randy E. Barnett, who represented Raich and Diane
Monson, who uses marijuana to ease pain from a degenerative disease of the
spine.

Barnett said that the enforcement of federal laws against the medical use
of marijuana was "not part of a larger regulatory scheme" and had only a
trivial impact on the illegal marijuana trade. "We are talking about a
small number of people," Barnett said.

But acting U.S. Solicitor General Paul D. Clement told the court that "any
little island of lawful possession [of marijuana] poses a real challenge to
Congress' regulatory regime," and several justices agreed.

"There is an enormous common market" in marijuana, Justice Anthony Kennedy
told Barnett. "The simple possession of that commodity is participation in
that market."

Justice David H. Souter, noting that as many as 100,000 patients in
California might want to use marijuana for medical purposes, said: "The
sensible assumption is that they're going to get it on the street."

When Barnett protested that ill people would have no incentive to obtain
marijuana "on the street," Souter responded: "If I'm sick, I'll say, 'They
don't prosecute kids for [purchasing] marijuana. Why would they prosecute
me?' " Yesterday's arguments focused less on whether smoking marijuana
offers unique medical benefits -- for example, in the alleviation of the
side effects of chemotherapy -- than on whether Congress and the Food and
Drug Administration have the authority to override state decisions to the
contrary.

"I don't know if it's true that medical marijuana is helpful to people in a
way that pills are not," Justice Stephen Breyer told Barnett, "but if your
clients take that position they can go to the FDA, and if they lose they
can go to [federal] court and claim an abuse of discretion by the agency."

Referring to the fact that medical marijuana was legalized by California's
voters, Breyer added: "Medicine by regulation is better than medicine by
referendum."

Much of the interest in this case among lawyers stems from the dilemma it
seems to pose for conservative justices who in recent years have placed
limits on Congress' power under the Constitution's commerce clause. For
example, in 1995, a majority consisting of Kennedy, Chief Justice William
Rehnquist and Justices Antonin Scalia, Sandra Day O'Connor and Clarence
Thomas struck down an act of Congress that made it a crime to possess a gun
on school property.

In the majority opinion in that case, Rehnquist said that the gun law
"neither regulates a commercial activity nor contains a requirement that
the possession be connected in any way to interstate commerce."

But yesterday two members of the majority in the gun case -- Scalia and
Kennedy -- indicated that they thought the constitutionality of the
Controlled Substances Act should be governed instead by a 1942 precedent,
Wickard v. Filburn. In that case, the court upheld a federal quota system
for wheat farmers even if the wheat were grown for home use, reasoning that
purely in-state cultivation could still affect the national market.

"This sounds like Wickard to me," Scalia told Barnett.

Barnett received some encouragement from O'Connor, who pressed Clement
about how he could distinguish this case from the court's recent federalism
decisions. Thomas, who as usual did not ask questions yesterday, is a
strong proponent of state's rights who mentioned the 1942 decision in an
opinion lamenting that "our case law has drifted far from the original
understanding of the Commerce Clause."

If O'Connor and Thomas voted to affirm the ruling of the 9th U.S. Circuit
Court of Appeals and were joined by Rehnquist -- who will participate in
deciding the case despite his absence yesterday because of illness -- and
Justices John Paul Stevens and Ruth Bader Ginsburg, there would be a 5-4
vote against the U.S. government's position.

Yesterday Stevens and Ginsburg seemed open to Barnett's argument that the
intrastate growth of marijuana for medicinal use was a special case.
Ginsburg noted that "nobody's buying anything -- nobody's selling anything."

Rehnquist, however, may be less sympathetic. He cited the 1942 decision in
his majority opinion striking down the federal law against the possession
of guns in schools. Unlike the possession of a firearm, he wrote, the
cultivation of wheat involved "economic activity" -- and he might well say
the same about the cultivation of marijuana.