The Supreme Court heard arguments yesterday in reviewing the constitutionality of California's medicinal-marijuana laws, and at first blush, it looks as though the justices on all sides view the state's-rights argument with deep suspicion:

The effort by advocates of the medical use of marijuana to link their cause to the Supreme Court's federalism revolution appeared headed for failure at the court on Monday.

During a lively argument, the justices expressed little inclination to view drug policy as a states' rights issue by which California and other states that have adopted "compassionate use" marijuana measures could displace federal regulation of homegrown marijuana distributed to patients without charge and without crossing state lines. ...

Mr. Barnett said that relatively few people would meet the medical criteria for legal marijuana use, and that any impact on the overall market for marijuana would therefore be "trivial." The administration, by contrast, has predicted that 100,000 Californians will avail themselves of the statute if the court upholds the Ninth Circuit's ruling.

Justice David H. Souter asked Mr. Barnett for the population of California. The law professor shrugged. "Thirty-four million," Justice Anthony M. Kennedy, a former resident of Sacramento, interjected.

In that case, Justice Souter continued, the government's estimate of 100,000 was "not implausible" and Mr. Barnett's prediction of a "trivial" effect "seems to me insupportable." Justice Souter said the circumstances of the two plaintiffs were "not a realistic premise on which to base constitutional law." His comment suggested that the marijuana advocates' litigation strategy of telling their story through two sympathetic female plaintiffs, especially Ms. Raich, whose physical suffering is evident in her wraith-like features and whose doctor says she would probably die without access to marijuana, might have backfired.

In the first place, earlier Supreme Court precedents have allowed Congress to regulate commerce of goods whose market extends nationwide, even if the transactions involved in the suit are intrastate. Wickard v Filburn (1942) even allowed Congress to regulate wheat produced for the farmer's personal use, a ruling that sounds too far-ranging. It seems to me that the justices have an opportunity to reign in some of Congress' power in this regard, but they're unlikely to do so on behalf of marijuana, if at all.

They certainly won't do it for this somewhat disingenuous presentation by the California contingent. They found the two most sympathetic clients they could provide -- one a media-darling waif who is almost certainly terminally ill with brain tumors. The problem is that the California law does not limit itself to those cases. It allows anyone who gets a doctor's "recommendation" for marijuana to possess and use it, even if its use is intended to treat issues like chronic back pain. The laxity of the requirement makes the government's estimation of 100,000 users -- less that half a percent of California's population -- look like a vast understatement.

Justice Breyer has the right idea. California's medicinal-marijuana proponents should have applied to the FDA for reclassification of marijuana as appropriate for medical use; a denial would have formed the core of a much more substantial lawsuit, as (I believe) the denial would have been found arbitrary. The FDA has never done a thorough vetting of marijuana's potential for medicinal use in the manner in which Ms. Raich applies it, and a denial would have been shown to be both premature and unsupported by any evidence.

I am not unsympathetic to the medicinal-marijuana cause, but California's end-around has always provoked my skepticism and opposition. They want to treat marijuana as a medicine but then allow anyone to self-medicate without the prescription required for almost any other treatment. It also allows anyone to grow their own marijuana, calling into question the quality and the consistency of dosages -- certainly an issue if you're serious about treating marijuana as a medicine. If California wants to treat this more seriously, they need to follow Breyer's advice to have the FDA reclassify it, and rewrite their law to require a prescription for its use, along with a specific set of conditions for which it can be prescribed.

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» Marijuana case: 9th Circuit suddenly the guardian of state's rights? from Slowplay.com
Monday, the U.S. Supreme Court heard oral arguments in Ashcroft v. Raich, "The Medicinal Marijuana Case." (All famous Supreme Court cases need a colloquial title such as "The Steel Seizure Case" or "The Texas Sodomy Case.") The case implicates ... [Read More]

Tracked on November 30, 2004 10:07 AM