Marijuana decision expected any day

February 28, 2005

Jeff Katz, The California Aggie

Can California have its marijuana and smoke it too?

   Since voters passed the Medical Marijuana Act in 1996, the state law has been seemingly in contradiction with federal laws that say marijuana is an illegal drug under any circumstances.

   The U.S. Supreme Court is now reviewing Ashcroft vs. Raich, in which a decision is expected any day regarding the federal government's authority over the matter.

   And according to Americans for Safe Access, a group working for medical marijuana rights, now may be as good a time as any for a ruling to be made.

   'Right now, the Supreme Court is definitely oriented towards state rights,' said campaign director Hilary McQuie. 'I don't want to make a bet, but that more than any other factor could be in favor of the Reich decision.'

   California resident Angel Raich, a prescribed medical marijuana user, sued the federal government in 2002 to challenge federal laws that banned her from using the substance under the Medical Marijuana Act.

   After the act passed, federal agents began periodic raids in California to break up marijuana cooperatives, saying that the federal Controlled Substance Act (CSA) does not recognize medical marijuana.

   While the US Constitution grants policing power to states, it stipulates that the federal government may intervene when the situation involves commerce between states.

   According to court documents, the federal government believes it can override the state law using the CSA because there are sales taking place.

   But a Dec 16, 2003 ruling by the Ninth Circuit Court of Appeals decided that using 'the CSA is an unconstitutional exercise of Congress' Commerce Clause authority.' The government's appeal of that decision landed the case in the Supreme Court in April of 2004.

   Patrick Murphy, a California drug policy expert, says that the case could easily go either way at this point; regardless, Californians who support medical marijuana shouldn't panic if the court rules in favor the government.

   'The notion of an individual in possession is now a question that a state can make a judgment on and this decision won't overturn that,' Murphy said. 'More likely, this could settle the question of whether state law is trumped by federal.'

   The Drug Free America Foundation, an umbrella group that filed a brief in favor of the government's position, did not return calls from The California Aggie for comment.

   Despite the assurance that medical marijuana users would still be protected under state law, some wonder whether the federal government could use a win to conduct more frequent raids.

   Murphy said the likelihood of such action is low, although the government may still decide to target doctors in an effort to make an example of them.

   'But you have to have someone out there willing to make the arrest, and then you also have to have someone willing to prosecute it, and it's just not a very good use of resources,' he continued. 'Frankly, drugs just aren't a priority for the federal government anymore.'

   Even a ruling in favor of Raich, although viewed as a big boost for medical marijuana advocates, is something McQuie said is only a minor protection in the larger picture.

   'It doesn't end the fight for medical marijuana if it wins because we need to have it rescheduled at the federal level,' McQuie said. 'But it is a move in the right direction.'

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