WASHINGTON -- Nine years ago, the Supreme Court's conservative majority proclaimed its intent to curb the federal government's power to meddle in local and state affairs. A federal law making it a crime to have a gun near a school cannot stand, the court said in a 5-4 decision, because simple gun possession is not part of interstate commerce.
"There never will be a distinction between what is truly national and what is truly local" unless the high court enforces limits on Washington's power, said Chief Justice William H. Rehnquist.
Now, defenders of California's medical marijuana law are hoping the Rehnquist court will follow its limited-government instincts to curb Atty. Gen. John Ashcroft and the federal Drug Enforcement Administration.
If simple gun possession is protected from federal regulation, they ask, why not simple drug possession?
In December, two liberal judges on the U.S. 9th Circuit Court of Appeals agreed with that argument and issued an order that blocked DEA agents from arresting patients who used home-grown marijuana to relieve pain.
The "non-commercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician" is protected by California law and is beyond the reach of the federal government's power to regulate interstate commerce, said Judges Harry Pregerson and Richard A. Paez, both from Los Angeles. It is "different in kind from drug trafficking," which is the usual focus of the federal narcotics laws, they said in a 2-1 ruling.
Two months ago, however, Ashcroft's Justice Department asked the high court to take up an appeal and reverse the 9th Circuit. The government's lawyers saw no limit on the federal power to enforce the drug laws.
The Controlled Substances Act "establishes a unified and closed system of controls," and it extends to "all instances of marijuana possession, manufacture and distribution," the Justice Department said.
The appeal came before the justices Thursday in their last regularly scheduled conference of this term, and they are likely to decide Monday whether to review the case.
The case may well determine the fate of California's law as well as the movement it spawned to establish a medical exception to strict federal drug laws. If the court turns away Ashcroft's appeal, it would leave untouched the 9th Circuit's ruling that protects a patient's right to use home-grown marijuana.
The state's voters passed Proposition 215 in 1996. Known as the Compassionate Use Act, it says "seriously ill Californians have the right to obtain and use marijuana for medical purposes where [it] has been recommended by a physician."
Since then, eight other states have enacted similar laws: Alaska, Colorado, Hawaii, Maine, Nebraska, Oregon, Vermont and Washington. And several more, including Arizona, have passed measures that recognize the medical benefit of marijuana.
From the start, however, federal authorities have insisted that the use of marijuana remains illegal, regardless of what the states or physicians say.
Three years ago, the high court agreed with Ashcroft's department and ruled that federal authorities may shut down clubs or clinics that dispense marijuana in California.
Last year, however, the justices turned away Ashcroft's appeal of a ruling that shielded doctors from being threatened with losing their right to prescribe medicine if they recommended marijuana to patients.
The new case, Ashcroft vs. Raich, tests whether the federal enforcement power extends to people who do not buy marijuana but grow it. The lawsuit challenging the federal government was filed on behalf of two women whose doctors say their lives depend on having continued access to cannabis.
In August, 2002, DEA agents raided the Butte County home of Diane Monson, who suffers from a degenerative disease of the spine. The agents seized and destroyed the six cannabis plants she was growing.
The other plaintiff, Angel McClary Raich, suffers from several chronic diseases, including an inoperable brain tumor, and relies on several friends who grow marijuana for her. Her husband, Oakland attorney Robert Raich, argued in the 9th Circuit in defense of her right to use home-grown marijuana.
His legal brief relied heavily on Rehnquist's opinion in the 1995 gun possession case. "It is a pretty far-fetched argument for them to say this involves interstate commerce, because there is no commerce and no interstate activity," he said. "What could be a more fundamental right than the right to use the medicine at home that you need to stay alive?"
The debate about federal authority over commerce is one of the oldest in constitutional law.
For decades, the Supreme Court struck down state measures that interfered with the free flow of goods. Beginning in the late 1930s, the court adopted a much broader view of the federal commerce power and used it uphold national laws that set minimum wages, protected union organizing, outlawed racial discrimination in the workplace and protected clean air and water.
In the 1990s, the Rehnquist court pushed back and insisted that the federal power over commerce had limits.
In a series of 5-4 rulings, the court struck down laws that had extended federal authority. Four years ago, the high court voided part of the Violence Against Women Act, which allowed victims of sexual assaults to sue attackers in federal court.
Rehnquist said a sexual assault within a state was not a "commercial" act, and therefore was beyond the reach of federal authority.
Nonetheless, Ashcroft's department insists those rulings do not limit the federal authority over home-grown marijuana.
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