Medicinal marijuana users' defense panics some liberals

December 22, 2004

Mark Moller (OpEd), Ventura County Star

In Ashcroft v. Raich, the Supreme Court will decide a lawsuit brought by a pair of very sick California women, Angel Raich and Diane Monson. Both grow marijuana in their back yards. Under California law, the drug is legal under doctor's orders. Even so, the Department of Justice says federal agents can prosecute both women.

To preserve their access to needed medicine, Raich and Monson challenged the U.S. attorney general in court. Their basis for doing so was the Constitution's Commerce Clause, which says government can regulate 'interstate' commerce.

According to Raich and Monson, their drug is grown at home for personal consumption. It's lawful under California law. And it's not sold to people outside the state. So they argue it's not 'interstate' commerce that the federal government can regulate.

The case has provoked a panic attack among some liberals. The New York Times, for example, suggests the Commerce Clause argument could play into the hands of conservatives, who want to squash government power.

But that objection is shortsighted: Ashcroft v. Raich is not just about limited government. It's also about political accountability, which should be dear to conservatives and liberals: That principle, after all, is advocated by liberal law scholar Cass R. Sunstein, who argues the Constitution is designed to promote 'careful,' 'thoughtful' (and hence 'accountable') government action.

At a minimum, 'accountability' means acting on 'evidence' -- in this case, that there's an 'interstate' problem for the feds to address. That's something the government hasn't tried to prove. As a number of briefs before the Supreme Court observe, the Bush administration offers 'nothing in the way of evidence' that medical marijuana is of national, as opposed to local, concern.

There's no excuse for this lapse of proof. California's law is hardly a self-evident threat to anyone. Ronald Reagan's top constitutional lawyer, Douglas Kmiec, characterizes the law as 'circumspect.' For people with dire medical conditions, it may be too circumspect. It doesn't 'legalize' medical marijuana -- in the sense you could buy it at a drugstore. It doesn't even necessarily save sick people from arrest. In most parts of California, where there's no registry of ill people needing marijuana, the law merely gives patients a chance to persuade a jury that a doctor approved its use after they've been arrested.

There's no evidence the law will stymie other states' drug policies. That's common sense: Interstate drug trafficking remains illegal, subject to interdiction and prosecution.

There's also no reason to think the law will frustrate California police. True, officers must sort sick people from recreational users, but police do that all the time: as when Florida officials investigated Rush Limbaugh for using black-market OxyContin. Indeed, it would have been surprising if the federal government offered proof to the contrary: The Constitution gives states, not the federal government, 'primary' control over criminal law enforcement. Criminal law is an area of special state expertise.

All these considerations make this case the easiest of calls. In his brief before the Supreme Court, Pepperdine University Professor Kmiec stressed that the Commerce Clause serves a distinct purpose -- it's a safety hatch when states are 'incompetent' to protect national interests. In a famous court argument, the legendary Daniel Webster added that the feds must demonstrate that purpose -- by showing a need to stop one state from harming another's citizens.

Faced with a moderate law, and no proof there's an interstate problem, the case boils down to this: Can federal officials butt into local affairs without showing they're needed or wanted at the local level? Under a Constitution that prizes thoughtful government action, respect for individual liberty, and deference to state policy, the answer shouldn't be hard, even for The New York Times. It is, in a word, 'no.'

-- Mark Moller is a senior fellow in constitutional studies at the Cato Institute, and the editor-in-chief of the Cato Supreme Court Review.

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