A VICTORY FOR MEDICAL MARIJUANA

Editorial

In 1996, voters in California voted to legalize the medical use of
marijuana. But they soon were reminded of the limits of their power to
extend compassion to sick people. Federal law prohibits use of marijuana
even for that reason, and the federal government has operated as though
Proposition 215 didn't exist.

Last week, however, a federal appeals court said the Justice Department and
Drug Enforcement Administration have overstepped their constitutional
powers. So the final say on medical marijuana in California should lie,
amazingly, with Californians.

It's a novel ruling, but one based on recent U.S. Supreme Court decisions
that have reinvigorated the American system of federalism. At the same
time, there is reason to doubt that the Supreme Court will accept the lower
court ruling. Even if it doesn't, though, the decision ought to spur the
federal government to reassess its inflexible opposition to medical marijuana.

Last year, federal agents seized marijuana plants from Californians who
were using pot for medical purposes at the urging of their doctors or
growing it for such patients. Several of the users and growers sued,
arguing that the federal government couldn't overrule California law. A
district court rejected their argument, but a three-judge panel of the 9th
U.S. Circuit Court of Appeals sided with the users and growers.

By a 2-1 vote, the court panel said the federal government's right to
legislate against drugs stems from its power to regulate interstate
commerce, and that in this case, there was nothing resembling interstate
commerce in the "intrastate, noncommercial cultivation, possession and use
of marijuana for personal medical purposes." So Washington is powerless to
intervene.

This is not a crazy conclusion. It builds on two landmark U.S. Supreme
Court decisions striking down the Gun-Free Schools Zones Act and the
Violence Against Women Act.

In those decisions, the high court stressed that there are limits to
Congress' power over economic affairs, which extends only to "activities
having a substantial relation to interstate commerce." The marijuana at
issue in this case, the appellate court said, "is not intended for, nor
does it enter, the stream of commerce," and any connection is too remote to
justify a federal role.

Dissenting Judge C. Arlen Beam, however, had no trouble finding a Supreme
Court decision pointing the other way. In 1942, the high court approved the
fining of a wheat farmer for growing wheat for his own use, in violation of
federal acreage restrictions aimed at limiting supply. In that case, the
court said the effect on interstate commerce was significant enough to
allow federal action. In Beam's view, the cultivation and use of pot for
medical purposes "is essentially indistinguishable" from what that farmer
did. That's a reasonable conclusion--which means the Supreme Court will
need to decide whether to extend the logic of its recent federalism
rulings, at the expense of its earlier ones.

None of this would be necessary, of course, if Washington would simply step
back and let states make their own choices in this realm--and to bear the
consequences of any mistakes. There is ample evidence that cannabis has
real therapeutic value for some patients. For the federal government to
overrule states and the public on the issue may or may not be
constitutional, but it definitely isn't wise.