COURT POISED TO MAKE HISTORY

Will states or the feds control laws on medical marijuana and assisted
suicide?

May a doctor in California lawfully prescribe marijuana for a
seriously ill patient? May a doctor in Oregon lawfully help a terminal
patient to commit suicide?

Stand by. The Supreme Court will hear argument in the California case
on Monday. The Oregon case is waiting in the wings on a petition for
review.

Both cases turn on the constitutional doctrine of separation of
powers.

We are talking in each case of separating the powers delegated to the
federal government by the Constitution from the powers reserved by it
to the states. We are talking major constitutional history.

Most of the press coverage has focused upon the California case of
Angel McClary Raich and Diane Monson. Both women are seriously ill,
Raich from an inoperable brain tumor, Monson from chronic back trouble
and painful muscle spasms.

After conventional medications failed to give them relief, their
doctors turned to California's Compassionate Use Act of 1996. The law
authorizes physicians to prescribe marijuana as a palliative in cases
of cancer, anorexia, arthritis, migraine, and "any other illness for
which it provides relief."

Such prescriptions are legal under the laws of eight other states, but
they conflict with federal laws and regulations that punish possession
or use of a "controlled substance." The lawsuit seeks to protect them
and their doctors from prosecution under federal drug laws.

The U.S. Court of Appeals for the 9th Circuit split 2-1 in siding with
the two women. Judge Harry Pregerson, writing for the majority,
emphasized that the marijuana used in their medication never enters
the stream of interstate commerce. The cannabis is grown, harvested
and consumed within the state.

Judge C. Arlen Beam of the 8th Circuit, sitting by designation,
disagreed. He saw no way to distinguish the plaintiffs' home-grown
medical marijuana from the social marijuana that federal law condemns.
The Supreme Court will settle the issue by early spring.

The high court's decision in the marijuana case from California will
surely influence its disposition of the suicide case from Oregon. Both
cases are rooted not only in federal powers under the Commerce Clause,
but also in state powers under the 10th Amendment.

The regulation of medical practice historically has been regarded as a
power reserved to the states respectively. Where does U.S. Attorney
General John Ashcroft find authority to nullify Oregon's Death With
Dignity Act of 2003?

The attorney general finds his authority over death-inducing drugs in
the same place he finds authority for banning medical marijuana. He
finds it in the Controlled Substances Act of 1970. The law prohibits
doctors from prescribing drugs that have "no currently accepted
medical use in treatment in the United States." Authorized drugs must
have "a legitimate medical purpose," and Ashcroft reasons that
"assisting in suicide is not a legitimate medical purpose."

In its opinion five months ago, the 9th Circuit held that Ashcroft's
directive is "unlawful and unenforceable." It exceeds the scope of the
act and ignores the attorney general's limited role. "We note that the
attorney general has no specialized expertise in the field of
medicine." Moreover, said Judge Richard C. Tallman, the directive
violates the concept of federalism, which teaches that "direct control
of medical practice in the states is beyond the power of the federal
government."

Tallman quoted Justice John Paul Stevens in a marijuana case three
years ago: Whenever possible, said Stevens, federal courts must
minimize state and federal conflict in areas "in which the citizens of
a state have chosen to serve as a laboratory in the trial of novel
social and economic experiments without risk to the rest of the country."

Then Tallman rubbed it in. The Controlled Substances Act was enacted
to combat drug abuse. "To the extent that it authorizes the federal
government to make decisions regarding the practice of medicine, those
decisions are delegated to the secretary of health and human services,
not to the attorney general. His unilateral attempt to regulate
general medical practices historically entrusted to state lawmakers
interferes with the democratic debate about physician-assisted suicide
and far exceeds the scope of his authority under federal law."

Amen to that! In the view of this old-fashioned, octogenarian,
unreconstructed states'-righter, that is the Sound Doctrine. And
behold: It comes from the 9th Circuit!

If the Nebulous Ninth can defend the 10th Amendment, all is not yet lost.