clear choice

POT AND THE CONSTITUTION

Ten years ago, the Supreme Court surprised legal experts when it struck down a federal law barring gun possession in school zones--not because it was in favor of guns in schools, but because it said Congress had no constitutional authority to legislate in such a quintessentially local sphere.  Ever since, the question has been: How far will the court go to rebalance the powers of the federal government versus the states? On Monday the court gave an answer: Not very far.

Federal law bars the sale, possession or cultivation of marijuana.  But several states have chosen to allow cannabis use by seriously ill people who can't get relief from conventional medicine.  In 1996, Californians approved a ballot measure allowing doctors to recommend marijuana to patients and permitting patients to use it, under a strict state-monitored program.  That, however, didn't stop the federal Drug Enforcement Administration from carrying out raids against medical marijuana users in California.

One of those raids targeted plants grown for her own needs by Diane Monson, whose physician had attested that pot was the only drug that alleviated her severe spinal pain.  She and another medical marijuana user went to court arguing that the federal government could not legally conduct such raids, because Congress had overstepped its constitutional boundaries in banning this use of pot.

A federal appeals court agreed.  The Bush administration said the raids were conducted under Congress' power to regulate interstate commerce--a provision that has long been the rationale for federal intrusions into traditional state functions.  But the 9th Circuit Court of Appeals ruled that the "cultivation, possession and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity." If there's no commerce, it concluded, the commerce clause is irrelevant, leaving the federal government powerless.

But in the end, despite what it admitted were the "troubling facts of this case," the Supreme Court bent over backward to give lawmakers in Washington the benefit of every doubt.  By a 6-3 vote, the court found that marijuana grown in these conditions could possibly have an impact on interstate commerce--even if the pot at issue never elicited a payment or crossed a state line.

The key difference with past decisions limiting congressional power, the court said, was that in the other cases, such as the Gun-Free School Zones Act, Washington was not regulating economic activity, and this time it was.  That claim is certainly debatable, to say the least.  But Justice John Paul Stevens, writing for the majority, said the connection was close enough for government work: "We have never required Congress to legislate with scientific exactitude."

So the federal government has the power to punish sick people using cannabis as medicine, on the advice of their doctors, even in states where medical marijuana is allowed.  What the federal government doesn't have, even after this decision, is a good reason to do so.