BEHIND THE CRACKDOWN

Ose Urged Federal Raids Even As Courts Consider Challenge To
Congress's Authority Over Marijuana

The questionable legal status of medical marijuana is confusing, even
for Congressman Doug Ose. Yet a resolution to that legal ambiguity
could be coming soon.

The Woodland Republican (who didn't return repeated calls from SN&R)
probably wouldn't admit to being confused, and he's certainly cast
the matter in black-and-white terms in recent letters he's written on
the topic, including a May 23 letter to Attorney General John
Ashcroft urging a federal crackdown on California pot smokers.

States vs. Feds: House Resolution 1344 by Congressman Barney Frank
would end federal jurisdiction over medical marijuana. Congressman
Doug Ose opposes the bill. Even though Californians overwhelmingly
voted to legalize the use of marijuana for medical reasons through
Proposition 215 in 1996, Ose's letter correctly notes that federal
law trumps state law under Article VI of the U.S. Constitution, also
known as the Supremacy Clause: "This Constitution, and the laws of
the United States which shall be made in pursuance thereof; and all
treaties made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land."

As such, Ose and two other Republican members of the House Committee
on Government Reform urged Ashcroft to immediately crack down on the
medical marijuana infrastructure in California in order to "send a
critical anti-drug message to our nation."

The federal government responded over the last few months by
coordinating high-profile raids of cannabis cooperatives in the Los
Angeles and Sacramento areas, and promising more to come.

The occasion for Ose's letter to Ashcroft was the U.S. Supreme
Court's May 14 decision in U.S. v. Oakland Cannabis Buyers'
Cooperative, in which it found the club's distribution of marijuana
to be illegal, refusing to recognize a "medical necessity" exception
to the federal Controlled Substances Act (CSA), which lists marijuana
as a "Schedule I" drug with no accepted medical benefits.

Although the narrowly written ruling doesn't strike down Prop. 215 or
its protection of legitimate users from prosecution under state law,
Ose has sought to significantly broaden the decision's implications.
In a letter to constituents on the matter, Ose wrote: "the U.S.
Supreme Court unanimously ruled that marijuana has 'no currently
accepted medical use treatment in the United States.' Their ruling
effectively overturned Proposition 215 as well as similar laws passed
in other states."

Actually, rather than ruling on marijuana's medical efficacy, the
court was simply quoting the CSA, which could be changed by Ose and
his congressional colleagues at any time. Or if marijuana advocates
are successful in a current legal challenge, jurisdiction over
marijuana could be taken away from the federal government altogether.

Attorneys for the Oakland Cannabis Buyers' Cooperative have filed a
motion with the Ninth Circuit Court of Appeals seeking a hearing on
the central question of whether Congress has the authority to
regulate possession of marijuana, or whether that authority rests
with state government, a question that has never been directly
addressed by the federal courts.

That gap in legal logic can be explained by the fact that few simple
possession cases are ever prosecuted under federal law, and the eight
states that have legalized the medical use of marijuana have done so
only in recent years, so a good test case on the question has yet to
come before the high court.

Various court rulings have upheld the constitutionality of the CSA,
finding that Congress derives its authority to regulate illegal drugs
from the Constitution's "Commerce Clause," which gives Congress the
power "to regulate commerce with foreign nations, among the several
States, and with the Indian tribes."

Even when drugs remain within the state, the courts have found that
such activity "contribute[s] to swelling the interstate traffic in
such substances," and therefore falls under federal purview. But each
of the cases involved selling drugs, or possession with intent to
sell, leaving open the question of whether growing a small amount of
marijuana for personal use would constitute "commerce."

Because if the courts find it doesn't, then regulation of marijuana
would be deemed a state issue, which is the level of government that
usually regulates health and safety matters. In fact, the
Constitution's Article X would then clearly make it a state issue:
"The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people."

The Ninth Circuit is expected to decide by January whether it will
hear the appeal. [Note: the 9th Circuit has since declined to review
the appeal and the case has been remanded to the District Court.