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The Supreme Court on Monday appeared ready to accept Bush administration arguments that California’s medical marijuana law interferes too much with federal efforts to combat illicit drugs. In spite of the conservative majority’s interest in strengthening state powers, most justices seemed skeptical of the argument that California could defy the federal Controlled Substances Act by allowing purely in-state, noncommercial distribution of marijuana for medical use. Ten states have followed the lead of California, whose voters in 1996 passed Proposition 215 to allow marijuana use in cases of medical necessity. “We face a mess,” said Justice Stephen Breyer at one point, lamenting the prospect of states and federal governments having to distinguish between marijuana that was grown and used locally for medical purposes from that which crossed state lines and is subject to federal regulation. Rather than enacting medical marijuana laws state by state, Breyer said, the Food and Drug Administration should be petitioned to reclassify marijuana in a way that would allow doctors to prescribe it. “That seems to be the obvious way to get this done,” said Breyer. “Medicine by regulation is better than medicine by referendum.” Boston University School of Law professor Randy Barnett, arguing on behalf of California medical marijuana users, replied that the federal government had obstructed research that would be needed to make a case before the FDA. Monday’s high court session began with an announcement by presiding Justice John Paul Stevens that, for the second cycle of arguments this term, Chief Justice William Rehnquist would be unable to attend � but would participate in deciding the cases argued. Rehnquist has been battling thyroid cancer since late October with both radiation and chemotherapy. The case before the Court, Ashcroft v. Raich, brought emotional demonstrations outside the Court, while inside, Angel Raich of Oakland watched as her lengthy battle for the right to continue using marijuana to alleviate debilitating pain reached its culmination. But before the justices, the case was largely stripped of emotion, focusing instead on the balance between federal and state power and on a 62-year-old Supreme Court precedent, Wickard v. Filburn. That 1942 case marked the apex of federal commerce clause power and upheld federal limits on growing wheat � even when the wheat was grown for the farmer’s own use and never entered the open market. The Bush administration argued that the same federal power to regulate interstate commerce that allowed Congress to limit how much wheat Ohio farmer Roscoe Filburn could grow also enabled the Controlled Substances Act to prohibit home-grown marijuana. “All of the marijuana is fairly within the commerce clause,” said Acting Solicitor General Paul Clement. Clement repeatedly stressed the problems that the creation of a “little island of lawful use” would pose to the enforcement of laws against nonmedical marijuana. “There is no reason to assume you can keep one part of the fungible drug market separate,” Clement told the justices. Justice Sandra Day O’Connor pointedly asked if “some concern” about the vitality of the Filburn precedent was warranted in light of United States v. Lopez in 1995 and United States v. Morrison in 2000, which narrowed the commerce clause powers of Congress and struck down federal laws on gun possession near schools and on violence against women, respectively. But Clement replied that both decisions had explicitly left Filburn undisturbed, and in any event the medical marijuana at issue in the current case amounted to an “economic use” that triggered Congress’ power � even under Lopez and Morrison. Justice Antonin Scalia, solidly in the pro-state majority in both Lopez and Morrison, seemed to support the federal side Monday, telling Barnett that the personal use of medical marijuana “sounds like Wickard to me.” Any marijuana grown for in-state medical use, he said, means “it doesn’t have to be bought elsewhere,” thereby creating the economic impact needed to authorize federal regulation. Barnett took on the Filburn precedent directly, asserting that if the Court decides that federal power trumps state laws allowing the “trivial” use of medical marijuana, then “ Ashcroft v. Raich will replace Wickard v. Filburn” as the most expansive interpretation of congressional power in the Court’s history. But Justice David Souter also seemed to take the federal arguments to heart, reasoning that if the government is accurate in predicting that as many as 100,000 Californians qualify for medical marijuana use, it won’t have only a “trivial” impact on interstate commerce. Barnett still insisted that no matter what the volume of medical marijuana use might be, it is still “noneconomic” and beyond the reach of Congress. After the arguments, Raich’s husband, Robert, part of her legal team, said it was difficult to predict the outcome of the case based on the questioning. “But I didn’t come here to lose,” he said. Raich also said that Justice Breyer’s suggestion to petition the FDA to allow medical use of marijuana rather than by state law was a “red herring” because of federal interference with marijuana research. A brief filed with the Court by the Marijuana Policy Project asserts that the government’s National Institute on Drug Abuse has stifled research and clinical trials on marijuana’s medical uses by making legal access to cannabis impossible for researchers. The case began in 2002 when Angel Raich of Oakland and Diane Monson of Oroville sued in federal court to bar enforcement of the Controlled Substances Act against them for possession of marijuana. The federal Drug Enforcement Administration has aggressively enforced the 1970 federal drug law in spite of the California enactment, and in August 2002 the agency joined with Butte County law enforcement agents in seizing Monson’s cannabis plants. Raich claims that without the relief marijuana provides for her pain from several ailments, she would die. Their request for an injunction against federal enforcement failed before the U.S. District Court for the Northern District of California, but a divided panel of the U.S. Court of Appeals for the 9th Circuit ruled in their favor last December. The panel found that use of locally grown, noncommercial marijuana for medicinal purposes is “different in kind from drug trafficking” and therefore beyond the reach of the Constitution’s commerce clause. “Lacking sale, exchange or distribution, the activity does not possess the essential elements of commerce,” wrote Judge Harry Pregerson for the panel. He was joined by Judge Richard Paez. Eighth Circuit Judge C. Arlen Beam, sitting by designation, dissented, asserting that it was “simply impossible to distinguish” between the marijuana cultivated in the case before the court and the locally grown wheat at issue in Filburn.

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