Court Allows U.S. Medical Marijuana Ban

June 07, 2005

Linda Greenhouse, New York Times

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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