COURT HEARS MEDICAL MARIJUANA CASE

Justices consider California statute vs. U.S. drug laws

WASHINGTON -- The Supreme Court on Monday jumped into the fight over the
use of illegal drugs for health purposes, as the justices took up a debate
that has focused on whether allowing medical marijuana use is a necessary
kindness in a compassionate society or a dangerous move that could
undermine the fight against narcotics.

The immediate subject was the scope of federal power and whether the
federal government's strict anti-drug laws should override a California
statute that allows those suffering from chronic pain or other symptoms to
use marijuana under a doctor's supervision. The justices fired questions at
lawyers on both sides.

Justice Sandra Day O'Connor asked a Justice Department lawyer how the case
differed from previous cases in which the court scaled back the federal
government's role. But Justice Antonin Scalia, in his questions to a lawyer
defending medical marijuana, suggested that the federal government did, in
fact, have an interest in regulating such drug use.

Relief For Pain

The case involves two California women who say they use marijuana for
medical reasons because other types of conventional medication have not
alleviated their chronic pain. In court papers, Angel Raich and Diane
Monson described in heart-wrenching detail living with chronic pain, saying
marijuana was their only hope for normal lives.

California voters in 1996 approved the use of marijuana for medical
purposes, and 10 other states have similar laws. But the federal government
says marijuana use is illegal under federal law, even when used for medical
reasons with a doctor's permission.

Raich and Monson sued to block federal drug laws from being used against
them, arguing that Congress lacks power under the Constitution to pass such
laws in the guise of regulating interstate commerce.

The Constitution gives Congress limited powers--including the power to
raise taxes, declare war and regulate interstate commerce--and leaves the
rest to the states. For decades, the Supreme Court took the position that
virtually every law affected commerce and nothing was outside Congress' domain.

But that thinking has changed in recent years.

Led by Chief Justice William Rehnquist, the court's conservative justices
have joined to scale back Congress' power to pass laws in matters
traditionally handled by states. In a series of 5-4 decisions, the court
has sharply rebuked Congress for intruding on state law-enforcement and
invalidated federal laws the justices said had no relation to interstate
commerce.

The marijuana case gives the court an opportunity to draw clearer lines
between what relates to interstate commerce and what should be left to states.

But Monday's argument took place without Rehnquist, who has thyroid cancer.
Justice John Paul Stevens, the court's senior associate justice, announced
in court that Rehnquist would miss arguments this week and next, but would
participate in the decisions based on legal briefs and transcripts.

Court spokeswoman Kathy Arberg said Rehnquist, who is undergoing
chemotherapy and radiation, is "tolerating his treatment well." He is
working from home, she said.

The chief justice has not said when he will return to the bench.

During Monday's session, several justices appeared skeptical of arguments
that the federal government lacked the authority to enforce the nation's
drug laws against users of medical marijuana. Several indicated they were
worried about the potential for abuse and whether medical marijuana would
be diverted to those who don't need it for treatment.

Some Skepticism

"Everyone will say, 'My marijuana is legal,'" said Justice Stephen Breyer.

The case arose when federal agents seized six marijuana plants from the
back yard of Monson, who is 47 and suffering from spine disease. She, Raich
and two of Raich's caregivers sued to block the federal government from
enforcing the federal drug laws against them. Raich, 39, has several
medical conditions, including a brain tumor and chronic joint pain.

A California federal appeals court agreed that Congress lacked authority to
subject the women to federal drug laws, because their activity did not
involve interstate commerce.

But Scalia and Justice Anthony Kennedy, who have supported the court's
efforts to limit federal power, suggested that Congress could regulate such
drug use, just as it could pass laws banning other types of drug possession.

"Why is this not an economic activity?" Scalia asked lawyer Randy Barnett,
who represents the patients and caregivers.

Barnett said the drug is grown solely for the use of the patient. It is not
sold and does not leave California, he said, so it does not concern
interstate commerce and is not within Congress' power to regulate.

But Justice Department lawyer Paul Clement argued that even marijuana grown
solely for personal medical use could affect commerce.

"What you're talking about here is possession, manufacture, distribution of
a valuable commodity to which there's a ready market," he said.