High Court Not Receptive to Marijuana Case

November 28, 2004

Charles Lane, Washington Post

Advocates of medical marijuana received a mostly skeptical reception from the Supreme Court yesterday as the court heard oral arguments in a case that will decide whether the federal government can still ban possession of the drug in states that have cut or eliminated sanctions for using it to treat symptoms of illness.

At issue is the small, homegrown quantity of marijuana used by two Northern California women at the recommendation of their doctors, as permitted by California's Compassionate Use Act, which was adopted by an overwhelming majority of voters in 1996.

But a majority of the justices made comments suggesting they thought that even small amounts of ostensibly medical marijuana, obtained for free, were part of a national market for licit and illicit drugs -- and thus subject to Congress's constitutional power over trade among the states.

"Medicine by regulation is better than medicine by referendum," Justice Stephen G. Breyer remarked at one point. "I have to take this case on the assumption that there is no such thing as medical marijuana that is special and beneficial."

"Cannabis does have a substantial medical effect," replied Randy E. Barnett, a law professor representing the two women, Angel McClary Raich and Diane Monson. He conceded that it has "ancillary effects" that may cause harm, but said that "when people are suffering and dying, they are willing to run risks."

At that point, Justice Anthony M. Kennedy intervened, eliciting from Barnett the concession that California's law does not apply only to life-threatening illnesses such as AIDS or cancer.

Monson, for example, was prescribed marijuana for lower back pain; Raich received hers for a variety of chronic conditions.

Monson's home was raided and her marijuana plants seized by federal agents in 2002; Raich says she receives free pot from caregivers and joined Monson's suit because of her fear that her marijuana could be seized. Raich's suppliers are also in the case, as John Does One and Two.

Monson and Raich say the federal government's crackdown on medical marijuana in California, which began under President Bill Clinton and continues under the Bush administration, is unconstitutional as it applies to them because their cultivation and use of the substance is a noneconomic activity that takes place in one state.

Their argument relies heavily on two Supreme Court cases within the past 10 years, in which the court limited Congress's power to make laws in the name of regulating interstate commerce.

The court ruled in 1995 that Congress could not criminalize the possession of guns near schools; in 2000, the court said Congress lacked the authority to give rape victims the right to sue their attackers in federal court. The court said the link between school gun violence or rape -- both of which are already illegal under state law -- and the national economy was too attenuated.

The strongest voice on the court in favor of Monson and Raich belonged to Justice Sandra Day O'Connor, who challenged acting Solicitor General Paul D. Clement to show how the use of federal power in this case was better justified than it was in the 1995 and 2000 cases.

"Did not the court say Congress can't use a long 'but-for' chain of causation? Did the court not make that statement, and does it not cut against what you are saying?" O'Connor asked.

Clement answered that federal enforcement of federal marijuana laws is an essential part of a larger regulatory scheme involving drugs and health care, and as such constitutional under the court's precedent.

The case is Ashcroft v. Raich, No. 03-1454. A decision is expected by July.

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