Court Weighs Legality of Federal Pot Charges
By Kathleen Hunter, Staff Writer
Standing just over five feet tall and weighing only 98 pounds, Angel Raich was barely visible in a swarm of reporters, microphones and television cameras competing for her attention Monday (Nov. 29) on the steps of the U.S. Supreme Court.
Raich, who regularly uses homegrown marijuana to ease chronic pain caused by a brain tumor and other illnesses, is one of two California women seeking to prevent the Bush administration from enforcing federal drug laws than ban all marijuana use whether states permit it or not.
"I am not here to legalize marijuana. I am here to save my life," said Raich, who relies on marijuana cultivated and given to her by caretakers.
In a case before the U.S. Supreme Court known as Ashcroft v. Raich, justices are weighing whether the Commerce Clause of the U.S. Constitution allows the federal government to enforce its blanket ban on pot in California and nine other states that allow marijuana use for medicinal purposes under a doctor's guidance.
The case, which was argued in a packed courtroom Monday morning, re-ignited a debate over whether marijuana has any medical benefit. It drew demonstrators on both sides of the issue.
Medicinal marijuana supporters held signs calling on the federal government to "Stop arresting patients," while opponents waved placards reading "182,000 kids in treatment for pot problems that's not medicine."
But inside the courtroom, lawyers and justices steered away from a debate over the drug's medicinal value, focusing instead on the balance of power between the federal government and the states.
Raich's lawyer, Randy Barnett, argued that the federal government has exceeded its authority in seeking to prosecute Raich and urged the court to limit the administration's power under the Commerce Clause.
The clause originally was intended to allow Congress to regulate interstate commerce but over the years has been used to justify a myriad of federal laws.
"By ruling that the power of Congress to regulate interstate commerce does not extend to plants grown in one's own back yard for personal medical use as authorized by state law, the Supreme Court can reinforce its recent line of cases limiting the reach of the Commerce Clause, ensure the power of states to protect the health of their citizens, and demonstrate that federalism is not just for conservatives," Barnett said.
The government's attorney, Paul Clement, urged federal jurisdiction, arguing that laws like California's are "difficult to police," in part because it is impossible to differentiate cases involving homegrown marijuana use from cases involving commercial use of the drug.
"The state law is not designed solely to carve out those cases that do not have an impact on the federal regulatory scheme," Clement said.
The states' rights issue at stake was underscored by the fact that three conservative states that do not have medicinal marijuana laws Alabama, Louisiana and Mississippi - filed a brief in strong support of a state's right to allow medicinal marijuana use.
The brief makes clear that while the three states "may not see eye to eye with some of their neighbors concerning the wisdom of decriminalizing marijuana possession and use in certain instances," they support their neighbors' prerogative to serve as "laboratories for experimentation."
While the justices gave little indication of how they might decide the case, several acknowledged that the marijuana in question because it was homegrown - did not automatically fall under the Commerce Clause.
"There is definitely nobody buying anything, nobody selling anything," said Justice Ruth Bader Ginsburg.
If the court rules in favor of the federal government, it would overturn the San Francisco-based U.S. Court of Appeals for the 9th Circuit, which held that federal enforcement is constitutional only if the marijuana is sold, transported across state lines or used for non-medical purposes.
California helped pioneer so-called "compassionate-use" marijuana laws in 1996 when voters passed an initiative that lets patients with a doctor's recommendation grow, smoke or obtain marijuana.
Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington have since followed suit, while Maryland allows patients who use marijuana to cite health reasons in court, resulting in a lesser penalty for possession.
Montana is the most recent state to adopt a law permitting medicinal marijuana use; voters there handily approved a referendum on the November ballot.
The Supreme Court already has ruled that the federal government can prosecute medicinal marijuana distributors.
Bush administration lawyers are urging justices to follow the precedent set in a 1942 high court ruling against an Ohio wheat farmer who challenged federal regulation under the Commerce Clause on the basis that the entirety of his wheat crop was used on his farm.
The other side cites two recent cases in which the high court rejected the Commerce Clause as justification for a federal ban of guns near schools and for a federal law that gave women the right to sue rapists in federal court.