A VICTORY FOR MEDICAL MARIJUANA
Editorial

In 1996, voters in California voted to legalize the medical use of marijuana. But they soon were reminded of the limits of their power to extend compassion to sick people. Federal law prohibits use of marijuana even for that reason, and the federal government has operated as though Proposition 215 didn't exist.

Last week, however, a federal appeals court said the Justice Department and Drug Enforcement Administration have overstepped their constitutional powers. So the final say on medical marijuana in California should lie, amazingly, with Californians.

It's a novel ruling, but one based on recent U.S. Supreme Court decisions that have reinvigorated the American system of federalism. At the same time, there is reason to doubt that the Supreme Court will accept the lower court ruling. Even if it doesn't, though, the decision ought to spur the federal government to reassess its inflexible opposition to medical marijuana.

Last year, federal agents seized marijuana plants from Californians who were using pot for medical purposes at the urging of their doctors or growing it for such patients. Several of the users and growers sued, arguing that the federal government couldn't overrule California law. A district court rejected their argument, but a three-judge panel of the 9th U.S. Circuit Court of Appeals sided with the users and growers.

By a 2-1 vote, the court panel said the federal government's right to legislate against drugs stems from its power to regulate interstate commerce, and that in this case, there was nothing resembling interstate commerce in the "intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes." So Washington is powerless to intervene.

This is not a crazy conclusion. It builds on two landmark U.S. Supreme Court decisions striking down the Gun-Free Schools Zones Act and the Violence Against Women Act.

In those decisions, the high court stressed that there are limits to Congress' power over economic affairs, which extends only to "activities having a substantial relation to interstate commerce." The marijuana at issue in this case, the appellate court said, "is not intended for, nor does it enter, the stream of commerce," and any connection is too remote to justify a federal role.

Dissenting Judge C. Arlen Beam, however, had no trouble finding a Supreme Court decision pointing the other way. In 1942, the high court approved the fining of a wheat farmer for growing wheat for his own use, in violation of federal acreage restrictions aimed at limiting supply. In that case, the court said the effect on interstate commerce was significant enough to allow federal action. In Beam's view, the cultivation and use of pot for medical purposes "is essentially indistinguishable" from what that farmer did. That's a reasonable conclusion--which means the Supreme Court will need to decide whether to extend the logic of its recent federalism rulings, at the expense of its earlier ones.

None of this would be necessary, of course, if Washington would simply step back and let states make their own choices in this realm--and to bear the consequences of any mistakes. There is ample evidence that cannabis has real therapeutic value for some patients. For the federal government to overrule states and the public on the issue may or may not be constitutional, but it definitely isn't wise.

COURT EXEMPTS MEDICINAL POT FROM FEDERAL BAN

In a move that emboldens California patients who rely on medicinal marijuana, a federal appeals court on Tuesday ruled that those who grow their own crop or get it for free are exempt from a U.S. law that bans the drug.

The 9th Circuit Court of Appeals in San Francisco upheld the arguments of two seriously ill California women, including one from the East Bay, who said their private use in a state that passed a medicinal marijuana law should not make them vulnerable to federal raids.

The 2-1 decision, handed down Tuesday afternoon, directly affects Oakland resident Angel McClary Raich and Diane Monson of Butte County, and provides a rare victory for advocates of California's medicinal marijuana law, which contradicts federal drug laws. It could also be a promising development in the pending case of a Santa Cruz County couple whose cannabis cooperative was raided last year.

Federal officials could not be reached late Tuesday, but a Drug Enforcement Agency spokesman in San Francisco said it was too early to say how the ruling would affect how agents do their work, which "targets large-scale distributors of drugs."

The court on Tuesday ruled that prosecuting medicinal marijuana users under the 1970 Controlled Substances Act is unconstitutional in states that allow such use under the advice of a doctor, if the cannabis isn't sold or transported across state lines or used for non-medicinal purposes.

"The intrastate, non-commercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician" is different from drug trafficking, the court wrote in its majority opinion. "Moreover, this limited use is clearly distinct from the broader illicit drug market."

Gerald F. Uelmen, the attorney representing Valerie and Michael Corral of the Wo/Men's Alliance for Medical Marijuana in Santa Cruz County, said he was "optimistic" the court's rationale could apply to his case, which stems from a Sept. 5, 2002, federal raid on the cooperative.

"Closed cooperatives who grow and share among themselves also do not affect interstate commerce," he said. "This is a very important decision for patients in California. This is great news."

Robert Raich, an Oakland attorney who presented arguments on behalf of his wife, Angel McClary Raich, and her two unidentified suppliers, along with Oroville resident Monson, was "ecstatic" with the decision.

"This is the way it should be," Raich said from his home Tuesday night. "Certainly for the time being, I know my wife is safe and can use the medicine that keeps her healthy."

McClary Raich, who relies on marijuana to cope with an inoperable brain tumor and seizures, felt that her life was threatened by the rash of federal raids on medicinal suppliers, her husband said.

Monson, whose home was raided in August 2002, grows her own crop to alleviate symptoms of a degenerative spinal disease, court records show.

Both women filed the lawsuit in October 2002 against Attorney General John Ashcroft and Drug Enforcement Administration Chief Asa Hutchinson, in an effort to ward off federal interference. A district judge ruled against them in March, prompting Raich to take the suit to the 9th Circuit Court.

The decision was a blow to the Justice Department, which argued that medicinal marijuana laws in nine states were trumped by the Controlled Substances Act, outlawing marijuana, heroin and a host of other drugs nationwide.

California voters in 1996 became the first in the country to pass a medicinal marijuana initiative, Proposition 215, the Compassionate Use Act. Since its passage, bitter legal battles have pitted federal drug laws against those advocating states' rights.

In July 2002, the state Supreme Court ruled that Californians who have a doctor's approval to smoke marijuana are protected from conviction for violating state drug laws. But in 2001, the U.S. Supreme Court issued a ruling that made it impossible for third parties to provide medicinal marijuana to seriously ill patients without running afoul of federal drug laws. As a result, several Bay Area medicinal pot clubs were shuttered.

Eight other states have adopted similar medicinal marijuana laws, including Alaska, Arizona, Hawaii, Nevada, Oregon and Washington state - which are under the jurisdiction of the 9th Circuit Court.