Let states make this choice

June 29, 2004

EDITORIAL, The Oregonian

T he U.S. Supreme Court's decision to hear a case about medical marijuana should clear the air in a controversy over the power of the federal government to intervene in states' medical decisions. 

On Monday, the court agreed to hear the Bush administration's appeal of the 9th U.S. Circuit Court of Appeals ruling in Ashcroft v. Raich. A panel of the appeals court ruled 2-1 in December that the federal government overstepped its constitutional authority in raiding patients whose medical marijuana activities were noncommercial and did not cross state lines.

The ruling said that 'cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity' and is thus outside federal jurisdiction.

We hope we see a trend of federalism here, with states being free to decide medical marijuana issues without federal interference.

Last summer, the Supreme Court let stand a lower court ruling that rejected the Justice Department's claim that the Controlled Substances Act empowered federal authorities to punish physicians who recommend marijuana to patients.

The Raich case was a second victory for medical marijuana proponents, but only in 9th Circuit states that permit medicinal use of marijuana: Alaska, California, Hawaii, Nevada, Oregon and Washington.

The significance of the high court's granting review on Raich is that patients across the country could be insulated from federal raids, arrests and prosecutions when they legally use marijuana as medicine under state laws.

It's possible the high court could reverse the 9th Circuit ruling. Patients still would be protected by state law, but that could be a thin shield to wield in costly defenses against federal prosecutors.

The judge who dissented in the 9th Circuit ruling based his disagreement on a 1940s interstate commerce case in which the Supreme Court said Congress had the power to regulate what a farmer grew on his own farm as a way to support the price regulation system. The farmer in question was not just feeding his produce to his family and himself, but also to his livestock, which he sold in interstate commerce.

The Raich case has no connection to interstate commerce. The seeds, soil, water, fertilizer, even the lumber used in the cultivating process, originated and remained within California. Also, it is a stretch to say that 'commerce' is involved. The medicine in the case of one plaintiff is grown by the patient for whom it has been recommended by a physician. The lead plaintiff gets her medicine from two caregivers who grow it legally under state law and give it to her without charge.

Diseases such as cancer, AIDS and multiple sclerosis and afflictions such as glaucoma and chronic pain don't discriminate geographically or on the basis of patients' political beliefs. Political conservatives and liberals should find common cause in pushing for medical marijuana solutions made in their state legislatures rather than by federal bureaucrats pushing electoral agendas.

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