STORY GETS MARIJUANA RULING WRONG

IN regard to your article, "U.S. drug policy collides with California's
tolerance" (News, March 15), I would like to point out a legal inaccuracy
promoted by the federal government and often repeated uncritically by the
media, including the Associated Press writer who authored the article.

It is unfortunate that the DEA and the federal government get such mileage
out of mischaracterizing the legal substance of the Supreme Court's opinion
in United States v. Oakland Cannabis Buyers' Cooperative on May 14, 2001.
Last year's decision in no way impacts California's Proposition 215, or any
other state's similar law.

The Supreme Court in fact provided good reason for believing that it will
strike down Congress' attempt to prohibit California's, or other states',
regulation of medical cannabis within its own borders in the appropriate
future case presenting that issue.

The Supreme Court's decision in United States v. Oakland Cannabis Buyers'
Cooperative did not, as stated by the Associated Press, hold that "federal
anti-drug laws supersede laws allowing medicinal marijuana in Alaska,
California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington."

The constitutionality of California's Proposition 215 was not before the
court in that case. The court decided the limited question of whether, under
federal common law, there was an equitable "medical necessity" defense to a
charge under the federal Controlled Substances Act. California's law was not
at issue in that decision.

This point is clearly made in both the majority's opinion and in the
separate concurring opinion. The court's majority stated "(N)or do we
consider the underlying constitutional issues today. Because the Court of
Appeals did not address these claims, we decline to do so in the first
instance."

Further limitations on the court's holding are recited in the concurring
opinion by Justices Stevens, Souter and Ginsberg -- without whose votes the
majority's result in this case could not have been reached.

Perhaps most importantly, I direct your attention to footnote seven of the
majority's opinion, which concludes, "(N)or are we passing today on a
constitutional question, such as whether the Controlled Substances Act
exceeds Congress' power under the Commerce Clause." This statement by the
Court is of vital importance in light of another Supreme Court case, United
States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, from 1995.

In Lopez, the Supreme Court struck down Congress' Gun-Free School Zones Act
of 1990 as being in excess of Congress' Commerce Clause authority. In
essence, the lack of intrastate activity prevented Congress from passing
such a law. As the Supreme Court explicitly recognized in the Oakland
Cannabis Buyers' Cooperative decision, exactly the same serious
constitutional issue is raised by Congress' attempt to prohibit
Californians, or the citizens of any other state, from growing, distributing
or possessing cannabis within state borders in accordance with state law. A
future medical cannabis case presenting the issue should be decided in
accordance with Lopez.

I hope that the truth about the Supreme Court's decision in the Oakland
Cannabis Buyers' Cooperative case begins to appear in the media reports
covering this issue. Clearly, that decision does not give the DEA its
claimed Supreme Court mandate to ignore California -- or any other state's
- -- law concerning medical cannabis. It is tragically Orwellian for federal
agencies and the media to redefine the content of a Supreme Court decision
by fiat.

Ben Ostapuk

San Francisco.