Pubdate: Wed, 08 Jun 2005
Source: International Herald-Tribune (International)
Copyright: International Herald Tribune 2005
Contact:  http://www.iht.com/
Details: http://www.mapinc.org/media/212
Author: Linda Greenhouse, The New York Times
Note: The decision is on line in various formats here 
http://straylight.law.cornell.edu/supct/html/03-1454.ZS.html and as a 79 
page .pdf file here http://www.supremecourtus.gov/opinions/04pdf/03-1454.pdf
Action: Suggested Actions in Response to the Raich Decision 
http://www.mapinc.org/alert/0309.html
Cited: Gonzales v. Raich http://www.angeljustice.org
Bookmark: http://www.mapinc.org/topics/Raich (Angel Raich)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

COURT ALLOWS U.S. MARIJUANA BAN

WASHINGTON - The Supreme Court has upheld the power of Congress to
prohibit and prosecute the possession and use of marijuana for medical
purposes, even in the 11 states that permit it.

The 6-to-3 decision on Monday, a firm reassertion of federal
authority, showed a deep fissure within the coalition that over the
past decade has provided the majority for a series of decisions
curbing congressional power and elevating the role of the states.

Two members of that coalition, Justices Anthony Kennedy and Antonin
Scalia, voted this time to uphold federal government authority.

The decision overturned a 2003 ruling by a U.S. appeals court that had
shielded California's Compassionate Use Act, the medical-marijuana
initiative adopted by California voters nine years ago, from federal
drug enforcement.

The appeals court held that Congress lacked constitutional authority
to regulate the noncommercial cultivation and use of marijuana that
did not cross state lines. But "the regulation is squarely within
Congress's commerce power," Justice John Paul Stevens said for the
majority on Monday. He added that the court's precedents had clearly
established "Congress' power to regulate purely local activities that
are part of an economic 'class of activities' that have a substantial
effect on interstate commerce." The decision was not necessarily the
last word on medical marijuana.

Under the terms of the opinion, the 9th U.S. Circuit Court of Appeals
in San Francisco will now consider other challenges to the application
of federal drug law. They include an argument made by the two patients
who brought the case - that depriving them of what they say is the
only drug that eases their suffering from a variety of painful
conditions amounts to a violation of their constitutional right to due
process.

Because the two women, Angel McClary Raich and Diane Monson, prevailed
in the 9th Circuit on their Commerce Clause argument, the appeals
court did not address the other issues.

In addition, Stevens suggested that the executive branch might
reclassify marijuana for medical purposes or that Congress might take
up the matter.

John Walters, the administration's director of national drug control
policy, said, "To date, science and research have not determined that
smoking a crude plant is safe or effective."

The House of Representatives is to vote next week on an appropriations
amendment to bar the Justice Department from spending money to enforce
federal drug laws against patients' using marijuana for medical purposes.

While the amendment failed last year, 19 Republicans voted for it. It
was not brought to a vote in the Senate.

Advocates for medical marijuana, meanwhile, emphasized on Monday that
the state laws remained in effect and that the prospect of federal
enforcement was fairly remote.

Allen Hopper, a lawyer with the American Civil Liberties Union's Drug
Law Reform Project, noted that the federal government handles only
about 1 percent of marijuana prosecutions.

Raich, one of the plaintiffs, speaking along with her husband and
lawyers at a telephone news conference, said she would continue to use
the marijuana that was prescribed by her doctor and is grown for her
by friends.

"I don't have a choice but to continue because if I stopped I would
die," she said. She suffers from a wasting syndrome, among other
ailments, and said that only marijuana gives her sufficient appetite
to eat enough to maintain her weight.

The women brought the case after federal agents arrived at Monson's
home in 2002 and, after a three-hour standoff, seized and destroyed
her six plants. The two women sued for a declaration that the federal
Controlled Substances Act did not apply to their situation.

The opinion by Stevens was joined by his allies in many recent battles
over federalism, Justices David Souter, Ruth Bader Ginsburg and
Stephen Breyer, and by Kennedy, who did not provide an explanation for
his vote.

Scalia, by contrast, explained himself at length. He did not sign the
majority opinion, instead offering a separate concurring opinion that
was no less definite in its support for federal authority.

"Where necessary to make a regulation of interstate commerce
effective, Congress may regulate even those intrastate activities that
do not themselves substantially affect interstate commerce," Scalia
said. He cited a number of the court's opinions from the early 1940s,
after the Supreme Court rallied to support the New Deal and gave
Congress a degree of power over national affairs that was not
seriously challenged until the Rehnquist Court began invalidating
federal laws in the mid- 1990s.

Chief Justice William Rehnquist himself was one of the dissenters on
Monday, although he did not write an opinion. He and Justice Clarence
Thomas joined a dissenting opinion by Justice Sandra Day O'Connor, and
Thomas also wrote a separate dissenting opinion.

As a prime mover of the court's federalism revolution, O'Connor did
not hide her dismay. The court's opinion provided a road map to
"removing meaningful limits on the Commerce Clause" and "threatens to
sweep all of productive human activity into federal regulatory reach,"
she said.

O'Connor said that while she would not have voted for California's
medical marijuana initiative and did not support it as public policy,
it represented the kind of innovation and "experiment" that came
within the latitude the Constitution permits to the states.

"The states' core police powers have always included authority to
define criminal law and to protect the health, safety and welfare of
their citizens," she said, adding that "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."

Thomas said that "if Congress can regulate this under the Commerce
Clause, then it can regulate virtually anything, and the federal
government is no longer one of limited and enumerated powers."

The sharpest dispute between the two sides was over the meaning of two
of the foundational decisions of the Rehnquist Court's approach to
federalism. Both struck down federal laws, the Gun-Free School Zones
Act and the Violence Against Women Act, on the ground that they
exceeded congressional authority, and both were decided by five-member
majorities that included justices Kennedy and Scalia.

While Justice O'Connor declared that the marijuana decision was
"irreconcilable" with the earlier ones, Scalia disagreed. Neither of
the earlier decisions "involved the power of Congress to exert control
over intrastate activities in connection with a more comprehensive
scheme of regulation" comparable to federal drug laws, he said.

In addition to California, the states that permit the use of marijuana
for medical purposes are Alaska, Arizona, Colorado, Hawaii, Maine,
Montana, Nevada, Oregon, Washington and Vermont. 
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MAP posted-by: Richard Lake