COURT TO HEAR MARIJUANA CASE

Legality of Cultivating Plant for Medical Use Is at Issue

Local sheriff's deputies and U.S. Drug Enforcement Administration agents
disagreed when they converged on Diane Monson's house in Oroville, Calif.,
two years ago.

The county cops accepted Monson's explanation for growing six marijuana
plants: She had a doctor's permission to smoke it for back pain, so the pot
was legal under the state's 1996 "medical marijuana" law.

But the DEA agents insisted that growing marijuana is still against federal
law. They seized the plants and destroyed them.

Today that federal-state clash continues at the Supreme Court, where the
justices will hear oral arguments on whether the Constitution permits the
federal government to take action against those who use homegrown marijuana
for medicinal reasons within states where it is legal to do so.

The case is the third medical pot case to reach the Supreme Court since
voters overwhelmingly approved California's Compassionate Use Act. But the
legal issues this time give the case importance well beyond the 11 states,
mostly in the West, that since 1996 have eased or eliminated penalties for
medical use of marijuana.

Among these states is Maryland, which last year set a maximum fine of $100
for medical users of less than an ounce of pot.

It has wider implications because Monson claims that federal drug busts of
people such as her exceed Washington's authority under the commerce clause
of the Constitution, which gives Congress the power to regulate trade
"among the several states."

Last year, the San Francisco-based U.S. Court of Appeals for the 9th
Circuit ruled 2 to 1 that Monson was right. If the Supreme Court agrees, it
could limit the federal government's power over not just the cultivation
and use of marijuana, but also other activities.

Much modern government regulation exists because the Supreme Court
articulated a broad definition of interstate commerce during the 20th
century. This permitted the court to uphold, as exercises of Congress's
commerce clause power, a wide range of national laws -- from the economic
policies of the New Deal to the civil rights era ban on racial segregation
in hotels and restaurants.

Perhaps the key ruling came in 1942, when the court held that the Roosevelt
administration could enforce acreage controls against an Ohio wheat farmer
who claimed his crop was entirely for his own use.

The court said that even subsistence farming could change the overall
supply and price of grain; this "substantial effect on interstate commerce"
triggered Congress's authority.

But in more recent years, the court has tightened its definition of
interstate commerce.

In 1995, the court struck down a federal ban on gun possession within 1,000
feet of a school, ruling that Congress's claims that school gun violence
had a "substantial effect" on the economy were implausible.

And in 2000, the court struck down a federal law giving women a right to
sue rapists in federal court, ruling that such violence was not, "in any
sense of the phrase, economic activity."

Monson and her co-plaintiffs -- Angel McClary Raich, an Oakland woman who
suffers from a variety of painful chronic disorders, and two people
identified as John Doe One and John Doe Two, who give Raich pot free of
charge -- argue that these recent cases favor them, because using small
amounts of marijuana they grow for themselves, or passing it along for
"compassionate" reasons, cannot affect the broader market for the drug.

"This case is and always has been about federalism and state sovereignty,"
Monson's lawyers argue in their brief.

But the Bush administration counters that even small-scale use of a
fungible commodity such as marijuana can affect price and quantity in the
black market.

"[E]xcepting drug activity for personal use or free distribution from the
sweep of [federal drug laws] would discourage the consumption of lawful
controlled substances and would undermine Congress's intent to regulate the
drug market comprehensively to protect public health and safety," the
administration argues in its brief.

The federalism issue in the case has created unusual alliances. Three
conservative Deep South states, Alabama, Louisiana and Mississippi, have
filed a friend of the court brief supporting the marijuana users on states'
rights grounds. "California is entitled to make for itself the tough policy
choices that affect its citizens," the states' brief argues.

Legal analysts say the likeliest supporter on the court for the marijuana
users may also be its most conservative member: Justice Clarence Thomas,
who, though a harsh critic of drug abuse, has also written that the court
must narrowly define Congress's commerce clause powers.

Meanwhile, a liberal environmentalist group, the Community Rights Council,
filed a brief in support of the Bush administration, noting the group's
interest in "ensuring . . . legislative flexibility to address national
concerns."

In two previous cases at the Supreme Court, medical marijuana advocates
have a split record.

In 2001, the court ruled 8 to 0 that there is no "medical necessity"
exception to federal drug laws against producing and distributing
marijuana, so California's "cannabis clubs" cannot escape prosecution by
saying they save lives.

But in 2003, the court refused to hear the Bush administration's appeal of
a 9th Circuit ruling that said doctors have a right to discuss marijuana as
a treatment option with their patients. That left the 9th Circuit ruling on
the books.

Thus, today's case is critical to the medical marijuana movement. With
cannabis clubs unable to distribute pot legally, a doctor's right to
recommend it would be meaningless unless users or their friends can grow it
themselves.

The case is Ashcroft v. Raich, No. 03-1454. A decision is expected by July.