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Supporters of the use of marijuana for medical purposes will swiftly take their campaign to Congress in the wake of last week’s Supreme Court decision that federal anti-drug laws can be enforced against users of medical marijuana in California and nine other states. The 6-3 decision in Gonzales v. Raich was a sharp defeat not only for the medical marijuana movement but also for the Rehnquist-led trend of the past decade that reined in congressional efforts to restrict or pre-empt the states. “I am disappointed, but it doesn’t mean that the battle is over,” says Angel Raich, the chronically ill patient who in 2002 challenged the application of federal law against California medical marijuana users. Emphasizing that the June 6 ruling does not strike down California’s Compassionate Use Act, passed by voters in 1996, Raich adds that she plans to continue using marijuana to ease her pain from several debilitating ailments. “If I did not use cannabis, I would die.” Indeed, the ruling does appear to leave California’s medical marijuana law in place, but concludes that the federal government can, if it chooses to, enforce the federal Controlled Substances Act against Californians for doing what California law allows: cultivating and using marijuana on the recommendation of physicians. Federal officials did not comment on future enforcement plans, but Bush administration drug czar John Walters, director of national drug control policy, says the Supreme Court ruling “marks the end of medical marijuana as a political issue. . . . Our national medical system relies on proven scientific research, not popular opinion. To date, science and research have not determined that smoking a crude plant is safe or effective. We have a responsibility as a civilized society to ensure that the medicine Americans receive from their doctors is effective, safe, and free from the pro-drug politics that are being promoted in America under the guise of medicine.” Steve Fox, director of the Marijuana Policy Project, says that the House of Representatives is scheduled to vote soon on a budget amendment that would bar use of Justice Department funds to enforce federal drug laws against those who use marijuana for medical reasons in states where this is allowed. “The timing [of the ruling] is perfect,” says Fox, who is hopeful that public attention paid to the high court ruling will translate into congressional support for the measure. Raich’s husband, Robert, a lawyer who participated in the case before the high court, says California medical marijuana users should “rest assured that it remains safe,” in part because “99 percent of marijuana arrests take place at the local level.” Boston University law professor Randy Barnett, who argued on behalf of Raich before the high court, also says he is fearful that the public might, by reading headlines about the decision, incorrectly conclude that medical marijuana laws in California and other states are now invalid. “The ruling has absolutely nothing to do with the continued existence of the Compassionate Use Act,” Barnett says, adding that the Court had ruled only on the commerce clause issue in the case — not the due process claims that Barnett says are still in play. Another avenue left open — or even encouraged — by the ruling is to persuade the Food and Drug Administration to change the classification of marijuana as a completely banned Schedule I substance, which it has refused to do for decades. In a footnote, Justice John Paul Stevens said that if the scientific evidence offered by medical marijuana supporters is true, it would “cast serious doubt” on the Schedule I classification. But the main thrust of the decision is that even when the marijuana at issue never crosses state lines, the Controlled Substances Act is a valid exercise of congressional power to regulate interstate commerce. “One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use . . . may have a substantial impact on the interstate market for this extraordinarily popular substance,” Stevens wrote. “If there is any conflict between federal and state law, federal law shall prevail.” The Court’s decision, the latest of many endorsements of the federal government’s “comprehensive regime” of drug laws, was not unexpected. But it was remarkable in light of Chief Justice William Rehnquist’s quiet and recently successful campaign to limit federal encroachment of states’ rights in the name of the commerce clause. As he had earlier in his 33-year tenure, but not as much recently, Rehnquist found himself in the minority on a major federal-state dispute. He joined a dissent written by Justice Sandra Day O’Connor and joined by Justice Clarence Thomas that repeated many of the pro-states’ rights arguments that have prevailed of late. “This case exemplifies the role of states as laboratories,” O’Connor wrote. “The states’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens.” Exercising those powers, she continued, California had decided to allow decriminalized marijuana use in limited circumstances. The ruling, she said, “extinguishes that experiment.” The decision, O’Connor said, was “irreconcilable” with United States v. Lopez and United States v. Morrison, which struck down congressional enactments on gun possession near schools, and violence against women, respectively. Lopez and Morrison are prominent hallmarks of the Rehnquist federalism trend. In his majority opinion, Stevens said the medical marijuana case was distinguishable from Lopez and Morrison because the Controlled Substances Act was a “lengthy and detailed statute” that dealt with undeniably commercial transactions. Stevens based the ruling on one of the high-water marks of federal power, the classic 1942 Supreme Court decision in Wickard v. Filburn, which said that New Deal-era federal agricultural regulations could reach down to restrict a farmer’s home-grown wheat even if it never enters interstate commerce. “The similarities between this case and Wickard are striking,” Stevens said. In a separate dissent, Thomas sharply criticized the majority for drifting back toward an expansive view of the commerce clause that would allow Congress to regulate “quilting bees, clothing drives and potluck suppers throughout the 50 states.” He added, “The majority is not interpreting the Commerce Clause, but rewriting it.” Interestingly, O’Connor’s dissent included a personal statement about the merits of medical marijuana that Rehnquist and Thomas specifically indicated they did not join. “If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act,” O’Connor wrote. “But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.” Tony Mauro can be contacted at [email protected].

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