Judging treatments

December 01, 2004

EDITORIAL, Orange County Register

It is always amusing (if seldom enlightening) to observe lawyers pontificating on medical topics. The medical marijuana case, Ashcroft v. Raich, heard by the U.S. Supreme Court Monday, however, will turn not on whether lawyers and justices know much about medicine - hint: they don't - but on whether certain conservative justices really mean it when they say they believe the Constitution gives state governments a good deal of discretion in using what the political scientists call 'police powers' and limits the power of the national government to override them.

Two California women and California law are at the center of the case. Angel Raich, having tried dozens of prescription medicines, uses marijuana to alleviate the effects of an inoperable brain tumor. She believes she would be dead if she didn't use it. Diane Monson suffers from chronic back pain and muscle spasms caused by a spinal disease. Since voters approved Proposition 215 in 1996, the two women's activities are legal under California law. But federal law still prohibits any use, possession, production or sale of the cannabis or marijuana plant.

When the Supreme Court considered a different medical marijuana-related case in 2001, it did not rule that the federal supremacy rule automatically overturns the laws of California and 10 other states - two added by voters this year - that allow sick people to use marijuana. It will not so rule in this case because federal supremacy is not at issue. At issue, interestingly enough, is the Constitution's commerce clause, which allows Congress 'to regulate commerce with foreign nations, and among the several states.'

The original purpose of the commerce clause was to prevent state governments from erecting barriers to commerce. During the New Deal, however, the clause was used to expand the power of the federal government to regulate almost anything, based on the theory that almost any activity affects interstate commerce, however indirectly or theoretically, so the national government can regulate just about anything that moves.

Most conservatives have deplored this expansion of federal regulatory power, and the conservatives on the Supreme Court have sought to rectify the balance (as they would put it) by restoring a little power to state governments to handle certain kinds of regulation without federal interference, notably in the Lopez and Morrison cases. Some observers even believe that Chief Justice William Rehnquist sees such a restoration of proper federalist balance as the legacy he hopes to leave when he retires.

So here we have a case where the state of California has legislated (by referendum) in a matter of health and safety, an area that has traditionally been left to the states. Furthermore, the activities of Angel Raich and Diane Monson and the two caregivers who grow marijuana for them and are parties to the case as 'John Does' involve no commerce at all, let alone interstate commerce. Not only is everything they do done within the state of California, but no money changes hands.

If there's no interstate commerce, there's no legal justification for the federal government to interfere with Ms. Raich's and Ms. Monson's efforts (in conjunction with duly licensed physicians) to treat their illnesses. It will be interesting to see what the conservatives on the court - and the liberals - do with this case.

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