Pubdate: Tue, 07 Jun 2005
Source: Legal Times (DC)
Copyright: 2005 NLP IP Company
Contact:  http://www.legaltimes.com/
Details: http://www.mapinc.org/media/759
Author: Tony Mauro
Cited: Gonzales v. Raich ( www.angeljustice.org/ )
Cited: Marijuana Policy Project ( www.mpp.org )
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/topics/Raich (Angel Raich)

JUSTICES' RULING IN MEDICAL MARIJUANA CASE MARKS SHIFT FOR STATES' RIGHTS

Supporters of the use of marijuana for medical purposes will swiftly
take their campaign to Congress in the wake of Monday's Supreme Court
decision that federal anti-drug laws can be enforced against users of
medical marijuana in California and nine other states.

The 6-3 decision in Gonzales v. Raich was a sharp defeat not only for
the medical marijuana movement but also for the Rehnquist-led trend of
the past decade that reined in congressional efforts to restrict or
pre-empt the states.

"I am disappointed, but it doesn't mean that the battle is over," said
Angel Raich, the chronically ill patient who in 2002 challenged the
application of federal law against California medical marijuana users.

Emphasizing that Monday's ruling does not strike down California's
Compassionate Use Act, passed by voters in 1996, Raich added that she
plans to continue using marijuana to ease her pain from several
debilitating ailments. "If I did not use cannabis, I would die."

Indeed, Monday's ruling does appear to leave California's medical
marijuana law in place, but concludes that the federal government can,
if it chooses to, enforce the federal Controlled Substances Act
against Californians for doing what California law allows: cultivating
and using marijuana on the recommendation of physicians. A Justice
Department spokesman declined comment on future enforcement plans.

Steve Fox, director of the Marijuana Policy Project, said Monday that
the House of Representatives is scheduled to vote next week on a
budget amendment that would bar use of Justice Department funds to
enforce federal drug laws against medical marijuana users in states
where it is allowed. "The timing [of the ruling] is perfect," said
Fox, who is hopeful that public attention paid to the high court
ruling will translate into congressional support for the measure.

Raich's husband, Robert, a lawyer who participated in the case before
the high court, said California medical marijuana users should "rest
assured that it remains safe," in part because "99 percent of
marijuana arrests take place at the local level."

Boston University law professor Randy Barnett, who argued on behalf of
Raich before the high court, also said he was fearful that the public
might, by reading headlines about the decision, incorrectly conclude
that medical marijuana laws in California and other states are now
invalid.

"The ruling has absolutely nothing to do with the continued existence
of the Compassionate Use Act," Barnett said, adding that the Court had
ruled only on the commerce clause issue in the case -- not the due
process claims that Barnett says are still in play.

Another avenue left open -- or even encouraged -- by the ruling Monday
is to persuade the Food and Drug Administration to change the
classification of marijuana as a completely banned Schedule I
substance, which it has refused to do for decades. In a footnote,
Justice John Paul Stevens said that if the scientific evidence offered
by medical marijuana supporters is true, it would "cast serious doubt"
on the Schedule I classification.

But the main thrust of Monday's ruling is that even when the marijuana
at issue never crosses state lines, the Controlled Substances Act is a
valid exercise of congressional power to regulate interstate commerce.

"One need not have a degree in economics to understand why a
nationwide exemption for the vast quantity of marijuana (or other
drugs) locally cultivated for personal use ... may have a substantial
impact on the interstate market for this extraordinarily popular
substance," wrote Stevens. "If there is any conflict between federal
and state law, federal law shall prevail."

The Court's decision, the latest of many endorsements of the federal
government's "comprehensive regime" of drug laws, was not unexpected.
But it was remarkable in light of Chief Justice William Rehnquist's
quiet and recently successful campaign to limit federal encroachment
of states' rights in the name of the commerce clause.

As he had earlier in his 33-year tenure, but not as much recently,
Rehnquist on Monday found himself in the minority on a major
federal-state dispute. He joined a dissent written by Justice Sandra
Day O'Connor and joined by Justice Clarence Thomas that repeated many
of the pro-states' rights arguments that have prevailed of late.

"This case exemplifies the role of states as laboratories," wrote
O'Connor. "The states' core police powers have always included
authority to define criminal law and to protect the health, safety,
and welfare of their citizens." Exercising those powers, she
continued, California had decided to allow decriminalized marijuana
use in limited circumstances. Monday's ruling, she said, "extinguishes
that experiment."

Monday's decision, O'Connor said, was "irreconcilable" with United
States v. Lopez and United States v. Morrison, which struck down
congressional enactments on gun possession near schools, and violence
against women, respectively. Lopez and Morrison are prominent
hallmarks of the Rehnquist federalism trend.

In his majority opinion, Stevens said the medical marijuana case was
distinguishable from Lopez and Morrison because the Controlled
Substances Act was a "lengthy and detailed statute" that dealt with
undeniably commercial transactions.

Stevens based the ruling on one of the high-water marks of federal
power, the classic 1942 decision Wickard v. Filburn, which said New
Deal-era federal agricultural regulations could reach down to restrict
a farmer's home-grown wheat even if it never enters interstate
commerce. "The similarities between this case and Wickard are
striking," Stevens said.

In a separate dissent, Thomas sharply criticized the majority for
drifting back toward an expansive view of the commerce clause that
would allow Congress to regulate "quilting bees, clothing drives and
potluck suppers throughout the 50 states." He added, "The majority is
not interpreting the Commerce Clause, but rewriting it."

Interestingly, O'Connor's dissent included a personal statement about
the merits of medical marijuana that Rehnquist and Thomas specifically
indicated they did not join. "If I were a California citizen, I would
not have voted for the medical marijuana ballot initiative; if I were
a California legislator I would not have supported the Compassionate
Use Act," O'Connor wrote. "But whatever the wisdom of California's
experiment with medical marijuana, the federalism principles that have
driven our Commerce Clause cases require that room for experiment be
protected in this case." 
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MAP posted-by: Richard Lake