Pubdate: Tue, 30 Nov 2004 Source: Register-Guard, The (OR) Copyright: 2004 The Register-Guard Contact: http://www.registerguard.com/ Details: http://www.mapinc.org/media/362 Author: David Savage, Los Angeles Times Note: Register-Guard reporter Tim Christie contributed to this report. Cited: Raich v. Ashcroft http://www.angeljustice.org Bookmark: http://www.mapinc.org/people/Angel+Raich (Angel Raich) Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal) JUSTICES SCRUTINIZE MEDICINAL POT WASHINGTON - The Supreme Court on Monday confronted a dispute between California's medical marijuana law and federal anti-drug policy, with a Bush administration lawyer arguing that the government's zero-tolerance law trumps the state measure. "Smoked marijuana really doesn't have any future in medicine," acting Solicitor Gen. Paul Clement told the court. If thousands of Californians were entitled to smoke marijuana to relieve their pain, he said, the federal ban on this illegal drug could collapse. Eight years ago, California voters approved a limited exception to the state's drug laws. Seriously ill patients were given the right to use marijuana for medical purposes if they had a doctor's recommendation. Federal authorities, however, have all but ignored the state law - as well as similar measures since enacted in 10 other states, including Oregon - and insisted that they retain the power to raid the homes of Californians who grow marijuana for their own use. The Supreme Court took up the issue Monday, not to decide whether marijuana is a good medicine but to rule on whether the federal authority to "regulate commerce" extends to seizing homegrown drugs. Outside on the court steps, one group of protesters called for liberalized drug laws to protect patients. They were challenged by another sign-carrying contingent who said stiff laws were needed to protect young people from dangerous drugs. Inside the court, the justices debated the reach of their rules on federal authority. Although there was skepticism about the California law, no clear consensus emerged. Oregon legal officials and medical marijuana advocates are keeping a close eye on the case. "We're following it real closely," state Deputy Attorney General Pete Shepherd said. If the high court upholds the California law, it's likely the Oregon medical marijuana law would be protected from a similar federal attack, he said. However, if the California law is struck down, Oregon's law may still survive, he said. That's because the California statute does not require ongoing state involvement in the medical marijuana program, while under Oregon's law, the state issues cards to approved users of medical marijuana. A key issue in the California case, Ashcroft vs. Raich, is the federal Controlled Substances Act and whether it violates the commerce clause of the U.S. Constitution, Shepherd said. The commerce clause authorizes Congress to regulate commerce between states, but attorneys for the two California plaintiffs argue that Congress has no constitutional authority to regulate commerce within a state - such as passing a law that makes illegal the cultivation of marijuana for medical use, Shepherd said. In the past decade, the Supreme Court's conservative majority - led by Chief Justice William Rehnquist - has insisted that the federal power to regulate commerce does not mean the federal government can regulate everything. In 1995, for example, the Rehnquist majority struck down a federal gun control law and said "mere gun possession" is not part of interstate commerce. In the medical marijuana case, the ideological tables were turned. Liberal advocates used Rehnquist's words to challenge the federal authority to seize homegrown marijuana. "This is noneconomic activity and wholly intrastate," said Boston University law professor Randy Barnett, who represents two Northern California women who say marijuana has been uniquely effective in relieving their pain. They are, Barnett said, "not buying or selling" drugs, and therefore their use of marijuana should be seen as beyond the reach of federal authority. During Monday's argument, however, only one of the conservative justices - Sandra Day O'Connor - picked up on Barnett's argument for limiting federal authority. And two liberal justices who have argued for broad federal power said they were skeptical of limiting Washington's power in the area of drug laws. Justice Stephen Breyer wondered about other illegal items. "You know, he grows heroin, cocaine, (or) tomatoes that are going to have genomes in them that could, at some point, lead to tomato children," said Breyer. Are all these beyond the regulatory power of the federal government, he asked? Not necessarily, Barnett replied. The government could ban all uses of a particular product, such as heroin, if the total ban were essential to maintaining control of that substance, he said. That's a very complicated standard, Breyer responded. Breyer said he did not know whether marijuana was good medicine, but he said the challengers should have taken their case to the Food and Drug Administration. "Medicine by regulation is better than medicine by referendum," Breyer said. Justice David Souter wondered how the federal ban could survive if hundreds of thousands of Californians said they had a right to use marijuana. "This whole argument boils down to how many people are involved," he said. If it were only the two women - Angel Raich and Diane Monson, the plaintiffs in the lawsuit - then California's law would have little impact on the marijuana market, he said. But if hundreds of thousands could claim the right, the ban would be all but wiped out, he said. Justice Antonin Scalia, a conservative proponent of limiting federal power, seemed to side with the government. He noted that the mere possession of illegal items has been a crime under environmental laws. What about ivory tusks? Or eagle feathers? he asked. "We can't tell whether (those items) came through interstate commerce or not. .. Why is that different from this?" Scalia asked. Rehnquist, the court's foremost proponent of limiting federal power, was absent. He was at home undergoing treatment for thyroid cancer, but Justice John Paul Stevens announced that Rehnquist planned to participate in deciding the case. O'Connor said Monday that California had a strong argument on federalism grounds. Justice John Paul Stevens said he was not convinced that federal authorities always know best when it comes to deciding what is best for patients. Does federal law "trump the independent judgment of the physicians who prescribe it for the patients at issue in this case?" he asked. - --- MAP posted-by: Richard Lake