Pubdate: Tue, 30 Nov 2004
Source: New York Times (NY)
Copyright: 2004 The New York Times Company
Author: Linda Greenhouse
Cited: Raich v. Ashcroft
Bookmark: (Cannabis - Medicinal)
Bookmark: (Angel Raich)


Washington -- 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 can 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 suffers from a brain tumor and other ailments, is too sick to 
cultivate her own marijuana and receives it without charge from two 
anonymous individuals. The two 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 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 

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."

Mr. Barnett said that relatively few people would meet the medical criteria 
for legal marijuana use, and that any impact on the overall market for 
marijuana would therefore be "trivial." The administration, by contrast, 
has predicted that 100,000 Californians would avail themselves of the 
statute if the court upholds the Ninth Circuit's ruling.

Justice David H. Souter asked Mr. Barnett for the population of California. 
The law professor shrugged. "Thirty-four million," Justice Anthony M. 
Kennedy, a former resident of Sacramento, interjected.

In that case, Justice Souter continued, the government's estimate of 
100,000 was "not implausible" and Mr. Barnett's prediction of a "trivial" 
effect "seems to me insupportable." Justice Souter said the circumstances 
of the two plaintiffs were "not a realistic premise on which to base 
constitutional law." His comment suggested that the marijuana advocates' 
litigation strategy of telling their story through two sympathetic female 
plaintiffs, especially Ms. Raich, whose physical suffering is evident in 
her wraith-like features and whose doctor says she would probably die 
without access to marijuana, might have backfired.

Justice Stephen G. Breyer told Mr. Barnett that his clients should ask the 
Food and Drug Administration to reclassify marijuana as appropriate for 
medical use; a refusal could then be the basis for a lawsuit charging the 
agency with abusing its discretion. Such a lawsuit would be "the obvious 
way to get what they want," Justice Breyer said, adding, "I guess medicine 
by regulation is better than medicine by referendum."

Mr. Clement's argument for the federal government did not go unchallenged. 
In decisions over the last few years invalidating federal laws dealing with 
gun possession near schools and with violence against women, the court has 
found that the activity Congress sought to regulate was insufficiently 
economic in nature to fall within the power to regulate interstate 
commerce. Justice Sandra Day O'Connor, who voted with the majority in those 
cases, told Mr. Clement that the precedents gave her "some concerns" about 
applying the Controlled Substances Act to the marijuana in this case.

In response, Mr. Clement said that in contrast to the national market in 
illicit drugs, the activities Congress addressed in those cases were 
essentially noneconomic. "This case is on the constitutional side of the 
line," he said.

Chief Justice William H. Rehnquist, who has been under treatment for 
thyroid cancer since mid-October, was not in court on Monday. Justice John 
Paul Stevens, presiding in his absence, announced that the chief justice 
would take part in the case by reading the briefs and the argument transcript.

In other action on Monday, the court refused without comment to hear an 
appeal by the City of Albuquerque from a ruling that struck down campaign 
spending limits for candidates for local office - $174,720 for mayor and 
$17,059 for the City Council.

The Supreme Court ruled in 1976, in the landmark campaign finance decision 
in Buckley v. Valeo, that election expenditures were protected by the First 
Amendment and, unlike contributions, could not be limited. On that basis, 
the federal appeals court in Denver ruled in April of this year that the 
Albuquerque limits were unconstitutional. The National Voting Rights 
Institute, a Boston group that advocates stricter campaign finance limits, 
brought the appeal in anticipation that the justices might be persuaded to 
revisit the 1976 precedent. The case was City of Albuquerque v. Homans, No. 
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