PRESERVING THE POWER OF CONGRESS

The Supreme Court is hearing arguments today in a case involving two
important, but very different, legal issues: medical marijuana and
federalism. Two California women have sued the federal government to
stop it from prosecuting them for using marijuana for medical
purposes, which they are permitted to do under California law. The
court should uphold their right to use medical marijuana, but in a way
that pays proper respect to Congress's power to make national laws.

This case arises out of an unusually dramatic face-off between federal
and state power. In 2002, federal agents from the Drug Enforcement
Administration showed up at the home of Diane Monson, who grew
marijuana there and used it to treat a degenerative spine condition.
In California, such use of marijuana has been legal since the voters
passed Proposition 215 in 1996, the Compassionate Use Act, which
allows seriously ill people to grow and use marijuana when a doctor
has found it to be medically appropriate. The federal agents were met
at Ms. Monson's home by sheriff's deputies, who found that her
cultivation and use of the drug were legal under California law. After
a three-hour standoff, the D.E.A. agents seized Ms. Monson's six
cannabis plants and destroyed them.

Fearing that they would be deprived of medical marijuana in the
future, Ms. Monson and another California woman, who has an inoperable
brain tumor, sued the federal government seeking a declaration that
the Controlled Substances Act, the federal law the D.E.A. agents were
acting under, does not prevent them from using medical marijuana.

The central issue is whether Congress had the constitutional power to
criminalize the women's activities. When it passed the Controlled
Substances Act, Congress relied on the commerce clause of the
Constitution, which authorizes it "to regulate commerce with foreign
nations, and among the several states." In recent years, the Supreme
Court has taken a narrow view of what that authorizes Congress to do.
It has ruled, in 5-to-4 decisions, that Congress did not have the
power to pass the Gun-Free School Zones Act or a key part of the
Violence Against Women Act.

We remain troubled by these decisions and, more generally, by the
court's narrow reading of Congress's power. But given the state of the
law, the United States Court of Appeals for the Ninth Circuit was
correct to hold that the federal government had no right to
criminalize the California women's actions. The marijuana in this case
was far removed from interstate commerce, since it was raised in
California for use within the state and was not sold commercially. The
Justice Department has argued that allowing Californians to use
medical marijuana "seriously undermines Congress's comprehensive
scheme for the regulation of dangerous drugs." But when an individual
treats herself with marijuana, under the sanction of state law and
with a doctor's guidance, the impact on trafficking in dangerous drugs
is close to nonexistent.

Although the California women should win, it is important that they
win on narrow, fact-specific grounds. Advocates of states' rights have
latched onto this case and are urging the court to use it to radically
rewrite its commerce clause rulings, reviving ancient precedents that
took a more limited view of Congressional power. This is where the
greatest danger lies in this case. If this sharply restricted view
prevails, it could substantially diminish the federal government's
ability to protect Americans from unsafe work conditions, pollution,
discrimination and other harms.