Pubdate: Sun, 10 Aug 2003 Source: San Francisco Chronicle (CA) Copyright: 2003 Hearst Communications Inc. Contact: http://www.sfgate.com/chronicle/ Details: http://www.mapinc.org/media/388 Author: Bob Egelko Bookmark: http://www.mapinc.org/find?115 (Cannabis - California) Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal) FEDERAL LAWYER LIKENS POT LAW TO CIVIL RIGHTS Segregationists Tried To 'Cherry-Pick' The Rules The Bush administration's top lawyer on medical marijuana told a lawyers' convention Saturday that if California were allowed to defy federal drug laws, other states could ignore federal civil rights laws. Speaking at a panel of the American Bar Association's annual convention in San Francisco, Justice Department senior trial counsel Mark Quinlivan said states-rights arguments being advanced on behalf of California marijuana providers and patients were comparable to legal arguments made in the past by Southern segregationists. States can't selectively assert their independence from the federal government on national issues, Quinlivan said. "You cannot cherry-pick your federalism," he said. If a California initiative to legalize medical marijuana can override the federal government's ban on marijuana, he said, then anything goes. Lawyers representing medical marijuana clubs and the state said Quinlivan picked the wrong example. Civil rights laws upheld by the Supreme Court were based on the constitutional guarantee of equality and on interstate commerce, said Gerald Uelmen, a Santa Clara University law professor. Uelmen represented pot cooperatives in a 2001 Supreme Court case and is the lawyer in three pending federal cases. He contended the use of California-grown marijuana for medical purposes has no effect on interstate commerce and is thus beyond the scope of federal authority -- a central issue in the current cases. There is also a moral distinction, argued Taylor Carey, a special assistant state attorney general who wrote California's arguments challenging federal drug enforcement against medical marijuana clubs. "When the government acted to protect the civil liberties of the children of Alabama, they acted with the highest degree of moral force," Carey said. "When they act to prevent critically ill people from obtaining medication . . .they are not acting with the same degree of moral propriety." But Harry Litman, a former federal prosecutor and Justice Department official in the Clinton administration, recalled that supporters of the late Alabama Gov. George Wallace "thought he was defending some very strong moral principles" in challenging federal civil rights enforcement. The panel's subject was the federal-state conflict that has been boiling since 1996, when California voters passed Proposition 215, legalizing marijuana for medical purposes under state law, a model later followed by eight other states. The Clinton and Bush administrations aggressively asserted the supremacy of federal drug laws, moving to shut down medical pot clubs, punish doctors who recommended marijuana to their patients, and, since President Bush took office, prosecute medical marijuana growers. The Supreme Court upheld the closure of Oakland's pot cooperative in 2001 and ruled the federal marijuana ban did not exempt individuals who claimed a medical necessity for the drug. But the court did not close the door to constitutional arguments by marijuana advocates: that the federal government has no authority to regulate drugs grown and used entirely within state borders, and that dying and severely ill patients have a constitutional right to relieve their pain. Those issues have been raised by Uelmen and other lawyers in pending cases on behalf of the Oakland club; a Santa Cruz medical marijuana cooperative raided by federal agents last September; the city and county of Santa Cruz, which have sued the federal government over the raid, and two Northern California patients who used locally grown marijuana. No judge has agreed with the arguments so far, but Uelmen said he is confident of winning in the Ninth U.S. Circuit Court of Appeals in San Francisco, where three of the cases are pending. Quinlivan said, however, that every appellate court that has considered the scope of the 1970 federal drug law has ruled that it applies to illicit drugs produced, distributed and used entirely within state borders. He also said the government's legal position does not reflect a lack of compassion. "Every one of us (in his Justice Department branch) has had people in our own lives affected by AIDS and cancer," Quinlivan said. "We're not interested in denying safe and effective medication. It's the principle of law that we're discussing here and the integrity of the (federal approval) process." - --- MAP posted-by: Doc-Hawk