Justices Take On Medical Pot Law

By David G. Savage

Nov. 30, 2004 12 AM PT

Times Staff Writer

WASHINGTON — The Supreme Court on Monday confronted a dispute between California’s medical marijuana law and federal antidrug policy, with a Bush administration lawyer arguing that the government’s zero-tolerance law trumps the state measure.

“Smoked marijuana really doesn’t have any future in medicine,” acting Solicitor Gen. Paul D. Clement told the court. If thousands of Californians were entitled to smoke marijuana to relieve their pain, he said, the federal ban on this illegal drug could collapse.

Eight years ago, California voters approved a limited exception to the state’s drug laws. Seriously ill patients were given the right to use marijuana for medical purposes if they had a doctor’s recommendation.

Federal authorities, however, have all but ignored the state law -- as well as similar measures since enacted in 10 other states -- and insisted that they retained the power to raid the homes of Californians who grow marijuana for their own use.

The Supreme Court took up the issue Monday, not to decide whether marijuana was a good medicine but to discuss whether the federal authority to “regulate commerce” extended to seizing homegrown drugs.

Outside on the court steps, one group of protesters called for liberalized drug laws to protect patients. Another sign-carrying contingent countered that stiff drug laws were needed to protect young people.

Inside the court, the justices debated the reach of their rules on federal authority. Although there was skepticism about the California law, no clear consensus emerged.

In the last decade, the high court’s conservative majority -- led by Chief Justice William H. Rehnquist -- has insisted that the federal power to regulate commerce does not mean it can regulate everything. In 1995, for example, the Rehnquist majority struck down a federal gun control law and said “mere gun possession” was not part of interstate commerce.

In the medical marijuana case, the ideological tables were turned. Liberal advocates used Rehnquist’s words to challenge the federal authority to seize homegrown marijuana.

“This is noneconomic activity and wholly intrastate,” said Boston University law professor Randy E. Barnett, who represents two Northern California women who say marijuana has been uniquely effective in relieving their pain. They are “not buying or selling” drugs, and therefore their use of marijuana should be seen as beyond the reach of federal authority, Barnett said.

During Monday’s argument, however, only one of the conservative justices -- Sandra Day O’Connor -- picked up on Barnett’s argument for limiting federal authority. And two liberal justices who have argued for broad federal power said they were skeptical of limiting Washington’s power in the area of drug laws.

Justice Stephen G. Breyer wondered about other illegal items. “You know, he grows heroin, cocaine, [or] tomatoes that are going to have genomes in them that could, at some point, lead to tomato children,” said Breyer, spinning out what he conceded was a complicated hypothetical question. Are all these beyond the regulatory power of the federal government? he asked.

Not necessarily, Barnett replied. The government could ban all uses of a product, such as heroin, if the total ban were essential to maintaining control of that substance, he said.

That’s a very complicated standard, Breyer responded. “Balancing those factors would be for Congress. That’s what we’d normally say,” he said. A former Senate staffer, Breyer has consistently urged the court to uphold acts of Congress.

Later in the argument, Breyer said he did not know whether marijuana was good medicine, but he said the challengers should have taken their case to the Food and Drug Administration.

“Go to the FDA and say, ‘Take this off the list of dangerous drugs.’ That would seem to be the most obvious way to deal with this,” Breyer said. “Medicine by regulation is better than medicine by referendum.”

Justice David H. Souter wondered how the federal ban could survive if hundreds of thousands of Californians said they had a right to use marijuana. “This whole argument boils down to how many people are involved,” he said.

If it were only the two women -- Angel Raich and Diane Monson, the plaintiffs in the lawsuit -- then California’s law would have little effect on the market for marijuana, he said. But if many could claim the same right, the federal ban would be all but wiped out, he said.

“They are going to get [marijuana] on the street” and claim they grew it for their personal use, Souter said.

Justice Antonin Scalia, a conservative proponent of limiting federal power, seemed to side with the government. He said the mere possession of illegal items had been a crime under the environmental laws. What about ivory tusks or eagle feathers? he asked. “We can’t tell whether [those items] came through interstate commerce or not.... Why is that different from this?” Scalia asked.

Rehnquist, the court’s foremost proponent of limiting federal power, was absent Monday. He was at home undergoing treatment for thyroid cancer. Justice John Paul Stevens said that Rehnquist planned to participate in deciding the case.

Justice Clarence Thomas, who in the past has strongly argued for limiting federal power, did not speak up during Monday’s arguments.

O’Connor is often the swing vote in close cases, and she said Monday that California had a strong argument on federalism grounds.

“As I understand it, none of this homegrown marijuana will be on any interstate market,” she said. “And it is in the area of something traditionally regulated by states. This limited exception [to the drug laws] is a noneconomic use -- growing for personal use.”

But Clement said her premise was wrong.

“Drugs are fungible,” the acting solicitor general said. “I think it might be a bit optimistic to think that none of the marijuana that’s produced consistent with California law would be diverted into the national market for marijuana.... The reality is there’s a $10.5-billion market -- an illegal market, albeit -- in marijuana in the United States on an annual basis.”

Stevens said he was not convinced that federal authorities always know best when it comes to patients. Does federal law “trump the independent judgment of the physicians who prescribe it for the patients at issue in this case?” he asked.

A doctor for Raich said she might not be able to live without marijuana. She suffers from an inoperable brain tumor and a wasting disease, and other prescription drugs failed to relieve her pain and help maintain her weight, he testified.

The government’s lawyer said federal law outweighs the testimony of doctors. “The idea of medical marijuana is something of an oxymoron,” Clement told Stevens. “Notwithstanding that some doctors may make a different judgment about a particular patient ... the federal regulatory regime does not allow individual patients or doctors to exempt themselves out of that regime.”

In its first medical marijuana case, the high court sided with federal authorities three years ago and ruled that the Drug Enforcement Administration could shut down cannabis clubs, which distributed marijuana to sick patients.

The current case began as a challenge to the federal authority to punish those who grew and used their own marijuana. The challengers won a ruling in their favor from the U.S. 9th Circuit Court of Appeals, but the high court voted to take up Atty. Gen. John Ashcroft’s appeal.

It will be several months before the high court hands down a ruling in Ashcroft vs. Raich.

If the court rules for Ashcroft, the decision will weaken, but not repeal, the medical marijuana laws in California, Alaska, Arizona, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington. Those state measures prevent police and local prosecutors from punishing patients who use marijuana for medical purposes.

However, a victory for Ashcroft would give federal agents new encouragement to raid homes and seize marijuana plants.

(BEGIN TEXT OF INFOBOX)

Medical marijuana laws

The Supreme Court is considering whether the federal law banning marijuana possession is paramount in 11 states that allow the use of marijuana for medical purposes.

States that allow patient use of marijuana with a doctor’s consent:

CALIFORNIA

NEVADA

OREGON

WASHINGTON

MONTANA

COLORADO

ARIZONA*

HAWAII

MAINE

VERMONT

ALASKA