STATES' RIGHTS DEFENSE FALTERS IN MEDICAL MARIJUANA CASE

Washington -- The effort by advocates of the medical use of marijuana to
link their cause to the Supreme Court's federalism revolution appeared
headed for failure at the court on Monday.

During a lively argument, the justices expressed little inclination to view
drug policy as a states'-rights issue by which California and other states
that have adopted "compassionate use" marijuana measures can displace
federal regulation of homegrown marijuana distributed to patients without
charge and without crossing state lines.

The closely watched case, which drew a crowd to the court, is an appeal by
the Bush administration of a ruling last December by the federal appeals
court in California that the federal Controlled Substances Act was "likely
unconstitutional" as applied to two women who used marijuana under their
doctors' care within the terms of Proposition 215, California's
Compassionate Use Act, adopted by the voters in 1996.

Nine other states have adopted similar measures that permit people with
chronic pain or illnesses like cancer and AIDS to use marijuana under a
doctor's supervision.

By a 2-to-1 vote, a panel of the United States Court of Appeals for the
Ninth Circuit issued an injunction barring federal agents from seizing the
women's marijuana supplies. One patient, Diana Monson, grows her own
marijuana and uses it to ease severe back spasms. The other, Angel McClary
Raich, who suffers from a brain tumor and other ailments, is too sick to
cultivate her own marijuana and receives it without charge from two
anonymous individuals. The two sued for an injunction after federal agents
arrived at Ms. Monson's home in Butte County and, after a three-hour
standoff with local law enforcement agents, seized and destroyed her six
marijuana plants.

The Ninth Circuit panel held that under the Supreme Court's recent
federalism precedents, the noncommercial intrastate activity in which the
women were engaged did not fall within Congress's constitutional authority
to regulate interstate commerce.

But illegal drugs are fungible and exist within a national market, Paul D.
Clement, the acting solicitor general, told the Supreme Court in arguing
the administration's appeal, Ashcroft v. Raich, No. 03-1454. "What we're
talking about here is the possession, manufacture and distribution of a
valuable commodity for which there is, unfortunately, a ready market," he said.

Mr. Clement asserted that Supreme Court precedents dating to the New Deal
made clear that "the relevant focal point is not the individual plaintiff's
activities" but rather the impact on the economy of an entire category of
activity, taken as a whole, that Congress has chosen to regulate.

In fact, much of the debate in the courtroom on Monday centered on one
particular precedent, Wickard v. Filburn, a decision from 1942 that upheld
Congress's effort to support wheat prices by controlling wheat production.
The court held that even the wheat that a farmer cultivated for home
consumption could be regulated under the Agricultural Adjustment Act's
quota system on the theory that all wheat production took place within a
national market. That decision is regarded as one of the most far-reaching
extensions of Congressional power that the Supreme Court has ever upheld.

Randy E. Barnett, a Boston University Law School professor arguing on
behalf of the two women, told the justices on Monday that if they accepted
the administration's argument in this case, "then Ashcroft v. Raich will
replace Wickard v. Filburn as the most far-reaching example" of Congress's
power over interstate commerce. Prohibition of "a class of activity that is
noneconomic and wholly intrastate" was not essential to the government's
"regulatory regime," he said, adding: "There is no interstate connection
whatsoever."

But the justices whom Mr. Barnett needed to persuade, those who have
questioned federal authority in recent cases, were skeptical. "It looks
like Wickard to me," Justice Antonin Scalia told him, adding: "I always
used to laugh at Wickard, but that's what Wickard says." He continued: "Why
is this not economic activity? This marijuana that's grown is like wheat.
Since it's grown, it doesn't have to be bought elsewhere."

Mr. Barnett said that relatively few people would meet the medical criteria
for legal marijuana use, and that any impact on the overall market for
marijuana would therefore be "trivial." The administration, by contrast,
has predicted that 100,000 Californians would avail themselves of the
statute if the court upholds the Ninth Circuit's ruling.

Justice David H. Souter asked Mr. Barnett for the population of California.
The law professor shrugged. "Thirty-four million," Justice Anthony M.
Kennedy, a former resident of Sacramento, interjected.

In that case, Justice Souter continued, the government's estimate of
100,000 was "not implausible" and Mr. Barnett's prediction of a "trivial"
effect "seems to me insupportable." Justice Souter said the circumstances
of the two plaintiffs were "not a realistic premise on which to base
constitutional law." His comment suggested that the marijuana advocates'
litigation strategy of telling their story through two sympathetic female
plaintiffs, especially Ms. Raich, whose physical suffering is evident in
her wraith-like features and whose doctor says she would probably die
without access to marijuana, might have backfired.

Justice Stephen G. Breyer told Mr. Barnett that his clients should ask the
Food and Drug Administration to reclassify marijuana as appropriate for
medical use; a refusal could then be the basis for a lawsuit charging the
agency with abusing its discretion. Such a lawsuit would be "the obvious
way to get what they want," Justice Breyer said, adding, "I guess medicine
by regulation is better than medicine by referendum."

Mr. Clement's argument for the federal government did not go unchallenged.
In decisions over the last few years invalidating federal laws dealing with
gun possession near schools and with violence against women, the court has
found that the activity Congress sought to regulate was insufficiently
economic in nature to fall within the power to regulate interstate
commerce. Justice Sandra Day O'Connor, who voted with the majority in those
cases, told Mr. Clement that the precedents gave her "some concerns" about
applying the Controlled Substances Act to the marijuana in this case.

In response, Mr. Clement said that in contrast to the national market in
illicit drugs, the activities Congress addressed in those cases were
essentially noneconomic. "This case is on the constitutional side of the
line," he said.

Chief Justice William H. Rehnquist, who has been under treatment for
thyroid cancer since mid-October, was not in court on Monday. Justice John
Paul Stevens, presiding in his absence, announced that the chief justice
would take part in the case by reading the briefs and the argument transcript.

In other action on Monday, the court refused without comment to hear an
appeal by the City of Albuquerque from a ruling that struck down campaign
spending limits for candidates for local office - $174,720 for mayor and
$17,059 for the City Council.

The Supreme Court ruled in 1976, in the landmark campaign finance decision
in Buckley v. Valeo, that election expenditures were protected by the First
Amendment and, unlike contributions, could not be limited. On that basis,
the federal appeals court in Denver ruled in April of this year that the
Albuquerque limits were unconstitutional. The National Voting Rights
Institute, a Boston group that advocates stricter campaign finance limits,
brought the appeal in anticipation that the justices might be persuaded to
revisit the 1976 precedent. The case was City of Albuquerque v. Homans, No.
04-413.