LAW PROF TO SUPREME COURT - FEDERAL GOVERNMENT,
BUTT OUT OF MEDICAL MARIJUANA

Randy Barnett last week stood before a panel of "justices" inside a
replica of the U.S. Supreme Court. The simulation was staged at
Georgetown University's moot courtroom, which is designed to help
lawyers acclimate to the intimate setting of the Supreme Court while
honing their arguments in preparation for a real hearing. The
justices, a panel of Georgetown professors and lawyers, peppered
Barnett with questions about the Constitution as it applies to medical
marijuana.

Barnett, Austin B. Fletcher Professor of Law at the School of Law, has
two more moot courts before November 29, when the Supreme Court will
hear his argument that it is unconstitutional for the federal
government to prosecute patients who grow and use marijuana for
medical purposes in California.

The high-profile case centers on whether the federal government has
the power to prosecute these patients in a state with a law permitting
the cultivation and use of cannabis with a physician's consent.

During the past three years the federal Drug Enforcement Agency (DEA)
has been cracking down on marijuana use in California, raiding the
homes and gardens of medical marijuana patients, destroying homegrown
cannabis, and prosecuting individual patients.

The DEA cites the federal Controlled Substances Act (CSA) of 1970, a
statute based on the commerce clause of the Constitution, which grants
the federal government authority to intervene in activities involving
or affecting commerce between states.

All "illicit drug traffic" affects interstate commerce, according to
the Justice Department, because it increases demand for drugs and
because drugs sold across state lines are difficult to trace to their
origins.

In 2002, Barnett and two attorneys brought a lawsuit in the Ninth
Circuit Court in San Francisco on behalf of two patients, Angel
McClary Raich and Diane Monson. Monson had had her medical cannabis
destroyed by DEA officials.

Raich, who uses cannabis to treat pain, nausea, and seizures
associated with a brain tumor and a wasting syndrome, obtained her
marijuana locally and without charge from anonymous caregivers, and
Monson, who takes marijuana to relieve severe back pain and spasms
caused by degenerative spine disease, grew her own cannabis.

They asked for an injunction against U.S. Attorney General John
Ashcroft and the DEA, claiming that their homegrown marijuana neither
comes from nor enters the commercial market, does not cross state
lines, and does not substantially affect interstate commerce.

In a historic ruling last December, the Ninth Circuit Court held that
the noncommercial use, possession, and cultivation of medical cannabis
is fundamentally different from "drug trafficking."

In Ashcroft v. Raich, the Bush administration is appealing the Ninth
Circuit Court ruling to the Supreme Court. The case, Barnett says, is
fundamentally about federalism versus state sovereignty. "This case
illustrates that having competing state and federal governments can
serve to protect liberty," he says. "These patients could not get
congress to change the Controlled Substance Act, but they could get
their state to permit their activity.

States ought to be able to do that within the purview of their
authority.

Legally, that's what this case is about."

A Call To Action

Four years ago Barnett didn't expect his legal career would lead him
into a courtroom, much less the Supreme Court. Nor did he anticipate
becoming a pivotal player in the medical marijuana movement.

He had been a criminal prosecutor in the Cook County State Attorney's
office in Chicago in the late 1970s, but since then has pursued a
career in academic law.

As an expert in constitutional law, and particularly the Ninth
Amendment, Barnett became involved in a medical marijuana case in the
late 1990s. When California legalized marijuana for medical purposes
in 1996, the Clinton administration began prosecuting so-called
cannabis cooperatives, which supply the drug to their members.

The Oakland Cannabis Buyers' Cooperative was ordered to shut down, and
the trial judge asked the attorneys in the case to include in their
brief a discussion of the Ninth Amendment, which states that the
rights enumerated in the Constitution are not the only rights retained
by the public. The lawyers for the cooperative asked Barnett to write
a few pages for the brief, and his role in the case gradually expanded.

When he heard about Raich's and Monson's situation, he and two other
lawyers filed Raich v. Ashcroft in 2002, partly out of sympathy for
medical marijuana patients, but also because of his concern for the
Constitution."I think that what the federal government is trying to
do to these patients is unconscionable," he says, "and I'm also very
committed to the Supreme Court's cases that since 1995 have restricted
congress' commerce clause power.

That doctrine can be used here to protect these patients, and I
believe in that doctrine."

Conservatives For Marijuana?

The case has become an unusual test for the conservative and liberal
justices on the court, Barnett says. Will conservative judges support
something as progressive as medical marijuana in order to limit
federal power? Conversely, will liberal justices uphold federal power,
even when it means depriving patients of a potentially life-saving, or
at least uniquely beneficial, medication? "If we win in this case,"
Barnett says, "it's going to be because the conservatives stick to
their principles of limiting federal power.

It's going to be a test for the liberals on the court, too. Are they
going to put their pro-federal power position over the health of these
patients?

Or will they finally say, well, maybe the federal government has a
limit to its power?"

Barnett foresees three possible decisions from the Supreme Court. The
justices could rule against the defendants, holding that the CSA is
constitutional as applied to medical marijuana, thus allowing federal
agents to resume marijuana raids in the 10 states that permit doctors
to prescribe medical cannabis.

The high court could also rule in favor of Barnett's clients,
supporting their claim that it is unconstitutional for the federal
government to use the CSA in the case of homegrown medical marijuana.

Or the justices could sidestep the constitutionality debate, and rule
that the statute's wording simply does not apply to medical marijuana,
thus protecting medical marijuana users. "If they take the position
that the statute does apply to us," Barnett says, "then I think that
will represent a constitutional counterrevolution. It will represent
the end of the effort by the court to put limits on federal power."

But Barnett is optimistic that the high court will support his
argument, and rule that the CSA is unconstitutional as applied to
medical marijuana. "The odds are always against winning a case like
this," he says, "because we're asking the court to hold a
long-standing federal statute unconstitutional, in whole or in part,
which is always an unusual event.

But I think our chances are really good. We not only have sympathetic
plaintiffs on our side -- we have the basic first principles of the
Constitution on our side. We really have a lot going for us."