States' Rights Defense Falters in Medical Marijuana Case

November 29, 2004

Linda Greenhouse, New York Times

The effort by advocates of the medical use of marijuana to link their cause to the Supreme Court's federalism revolution appeared headed for failure at the court on Monday.

During a lively argument, the justices expressed little inclination to view drug policy as a states' rights issue by which California and other states that have adopted 'compassionate use' marijuana measures could displace federal regulation of homegrown marijuana distributed to patients without charge and without crossing state lines.

The closely watched case, which drew a crowd to the court, is an appeal by the Bush administration of a ruling last December by the federal appeals court in California that the federal Controlled Substances Act was 'likely unconstitutional' as applied to two women who used marijuana under their doctors' care within the terms of Proposition 215, California's Compassionate Use Act, adopted by the voters in 1996.

Nine other states have adopted similar measures that permit people with chronic pain or illnesses like cancer and AIDS to use marijuana under a doctor's supervision.

By a 2-to-1 vote, a panel of the United States Court of Appeals for the Ninth Circuit issued an injunction barring federal agents from seizing the women's marijuana supplies. One patient, Diana Monson, grows her own marijuana and uses it to ease severe back spasms. The other, Angel McClary Raich, who has a brain tumor and other ailments, is too sick to cultivate her own marijuana and receives it without charge from two anonymous people. The two women sued for an injunction after federal agents arrived at Ms. Monson's home in Butte County and, after a three-hour standoff with local law enforcement agents, seized and destroyed her six marijuana plants.

The Ninth Circuit panel held that under the Supreme Court's recent federalism precedents, the noncommercial intrastate activity in which the women were engaged did not fall within Congress's constitutional authority to regulate interstate commerce.

But illegal drugs are fungible and exist within a national market, Paul D. Clement, the acting solicitor general, told the Supreme Court in arguing the administration's appeal, Ashcroft v. Raich, No. 03-1454. 'What we're talking about here is the possession, manufacture and distribution of a valuable commodity for which there is, unfortunately, a ready market,' he said.

Mr. Clement asserted that Supreme Court precedents dating to the New Deal made it clear that 'the relevant focal point is not the individual plaintiff's activities' but rather the impact on the economy of an entire category of activity, taken as a whole, that Congress has chosen to regulate.

In fact, much of the debate in the courtroom on Monday centered on one particular precedent, Wickard v. Filburn, a decision from 1942 that upheld Congress's effort to support wheat prices by controlling wheat production. The court held that even the wheat that a farmer cultivated for home consumption could be regulated under the Agricultural Adjustment Act's quota system on the theory that all wheat production took place within a national market. That decision is regarded as one of the most far-reaching extensions of Congressional power that the Supreme Court has ever upheld.

Randy E. Barnett, a Boston University Law School professor arguing on behalf of the two women, told the justices on Monday that if they accepted the administration's argument in this case, 'then Ashcroft v. Raich will replace Wickard v. Filburn as the most far-reaching example' of Congress's power over interstate commerce. Prohibition of 'a class of activity that is noneconomic and wholly intrastate' was not essential to the government's 'regulatory regime,' he said, adding: 'There is no interstate connection whatsoever.'

But the justices whom Mr. Barnett needed to persuade, those who have questioned federal authority in recent cases, were skeptical. 'It looks like Wickard to me,' Justice Antonin Scalia told him, adding: 'I always used to laugh at Wickard, but that's what Wickard says.' He continued: 'Why is this not economic activity? This marijuana that's grown is like wheat. Since it's grown, it doesn't have to be bought elsewhere.'

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