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Supreme Court Watch

November 29, 2004 at 12:00 AM EDT


SPENCER MICHELS: In Oakland, California, 39-year-old Angel Raich processes her marijuana so she can vaporize and inhale it.

ANGEL RAICH: This is medicine. I actually don’t like smoking or vaporizing or using cannabis, but it’s the only way that I can keep from dying.

SPENCER MICHELS: Raich gets her marijuana from a local grower for free. She is one of two plaintiffs suing the federal government to ensure they can continue to use marijuana to ease their pain, without federal agents seizing the drug or arresting them.

They claim that California’s Proposition 215, which legalizes the use of marijuana as a prescribed medication, protects them. It was passed by the voters in 1996. In fact, 11 states allow patients to use medical marijuana if a doctor recommends it. Nevertheless, the federal government claims it, and not the states, determines drug policy.

SPENCER MICHELS: So do you go through this rigmarole several times a day?

ANGEL RAICH: Every two hours.

SPENCER MICHELS: Every two hours?

ANGEL RAICH: Every two hours. I have to medicate every two hours or I drop a pound a day.

SPENCER MICHELS: Raich, a mother of two teenagers, has an array of painful medical conditions, including seizures, wasting syndrome, endometriosis and a brain tumor. Regular pain medications haven’t worked, or have produced side effects. A nurse suggested trying pot.

ANGEL RAICH: When I actually did try it, I actually started noticing a difference in the pain. I didn’t throw it up. And I was actually getting some relief, I was getting benefit.

SPENCER MICHELS: Her husband, Robert Raich, one of her attorneys, is contending in a case that has reached the Supreme Court that she has a constitutional right to use marijuana.

ROBERT RAICH, Attorney: Without fear of reprisal by the federal government, having her assets seized, being arrested, having her property or her medicine taken from her.

SPENCER MICHELS: That fear turned into a reality for the other plaintiff, businesswoman Diane Monson, shown here with attorney David Michael. Monson was using marijuana to alleviate severe back pain and spasms.

Relying on Prop 215, she had cultivated six large marijuana plants at her rural northern California home, which was raided in 2002 by sheriff’s deputies and federal drug agents. She showed the local deputies the plants.

DIANE MONSON: They were quite willing to leave them there because I’m working within the confines of the state law and the county guidelines. So they said, “Well, there’s only six plants here. She’s totally within her rights to be doing this cultivation, so we’re leaving.”

SPENCER MICHELS: And then what happened?

DIANE MONSON: And then, the two federal agents refused to leave without taking the plants, and the sheriffs refused to let them do so. So it got kind of ugly, and it went on for about three hours.

SPENCER MICHELS: After numerous phone calls, the feds won out.

DIANE MONSON: I stood with the sheriffs while the federal agent chopped down the plant, and I read to him the text of Prop. 215.

SPENCER MICHELS: Medical marijuana clubs like this, the federal government argues, are also violating the Controlled Substance Act of 1970, despite the state’s passage of Prop. 215. That federal law depends on the government’s right to regulate interstate commerce under the Constitution.

And so attorney David Michael says it doesn’t apply to Monson, who grows her own pot, or Raich, who gets hers free and locally. No money changes hands, he says, so how could it be commerce?

DAVID MICHAEL, Attorney: If it’s solely activity within a state that is not economic and doesn’t substantially affect the interstate commerce, then the federal government cannot control or regulate the activity of our citizens. They have to leave it to the states to control and regulate.

SPENCER MICHELS: But Joe Russoniello, former Republican U.S. Attorney for northern California in the 1980s, says that the feds contend that obtaining marijuana is a substitute for buying it, and it is therefore economic activity.

JOSEPH RUSSONIELLO, Former U.S. Attorney: It doesn’t have to have a direct impact on interstate commerce. It has an impact, as the government’s brief argues, to the extent that because she is using this marijuana which she is growing herself, she is not buying cannabis that is available in the drug market.

SPENCER MICHELS: The government also contends that its control over medical marijuana, even if it isn’t sold across state lines, is part of a larger regulatory scheme, and therefore legal. Still, even though Monson and Raich may fear prosecution, individual medical marijuana users are unlikely targets for federal prosecution, says Russoniello.

JOSEPH RUSSONIELLO: I think the traffickers certainly should be fearful, whether they are smugglers or marijuana cultivators. I don’t think that people who are users, and especially those who are using for medical reasons with the advice and at the direction of a physician, have much to fear.

SPENCER MICHELS: Last December, the 9th Circuit Court of Appeals ruled 2-1 to enjoin the government from depriving Raich and Monson of their medical marijuana. But the government asked the Supreme Court to take the case.

GWEN IFILL: So once the medical marijuana case got to the nation’s top court, what happened then? As always, Chicago Tribune Supreme Court reporter Jan Crawford Greenburg was there, and she joins us now to take us inside the high court.


GWEN IFILL: So this was really more about commerce than compassion, this argument?

JAN CRAWFORD GREENBURG: That’s right. This all turns on whether or not Congress has the authority to pass these kind of laws that would apply to people like Ms. Raich and Ms. Monson.

GWEN IFILL: But this was a balance of power argument then that the states… normally a states rights argument we would know where the Court would come out on this. In this case it’s a little bit on its head.

JAN CRAWFORD GREENBURG: Well, that’s right. This is an issue that has captivated this Court for almost ten years now.

Led by Chief Justice William Rehnquist, the Supreme Court with the five more conservative Justices in the majority have gradually scaled back Congress’s power to pass laws that kind of intrude on matters that traditionally are handled by the states and has sharply rebuked Congress in several cases for horning in on state law enforcement efforts so today’s case brings the Court back to that issue.

What power does Congress have and what power do the states have and where will the Court in this case draw the line? Now, the patients, the seriously ill patients say that this is a matter for the states to decide. California and ten other states have decided to carve out an exception to their drug laws and to allow seriously ill patients to use marijuana for medical purposes.

But the federal government says and certainly a lawyer for the Justice Department argued today that it has a strong interest here in regulating these kinds of drugs as well.

GWEN IFILL: When the Court has taken up this argument before, what has been the outcome?


GWEN IFILL: Or similar arguments.

JAN CRAWFORD GREENBURG: A long time ago back in 1942 the Court said that Congress could regulate virtually any law. That case involved a farmer named Roscoe Filburn and whether or not Congress could regulate the wheat he grows on his farm. He used it mainly for his farm and for his own purposes. The Court then said that that was something that Congress could regulate — the sale of his wheat.

So for 50 years we’ve proceeded under the assumption that Congress could pretty much pass laws on anything under its authority to regulate interstate commerce. Now, these are big, sweeping issues of constitutional law. But as we saw today, they have very real world effects that affect everyday life for millions of Americans.

All of this thinking changed in 1995. We always thought based for years and decades and decades that Congress could regulate these laws but in 1995 the Supreme Court said, wait a minute, there are some limits. The Constitution gives Congress powers to pass laws only on a certain variety of topics: Raise taxes, you know, declare war, regulate interstate commerce are a few. The rest it leaves to the states.

So in 1995 in an opinion by the Chief Justice, the Court said those limits are important. It struck down a law then that said Congress… that Congress had passed that regulated guns around school zones. And ever since then, we’ve seen a number of laws go up before the Court and we’ve seen this Court 5-4 majority impose these limits on congressional power.

GWEN IFILL: Any sense today during the arguments before the Court what are the things that are on the Justices’ minds?

JAN CRAWFORD GREENBURG: This was a hard case to read. Now, the Chief Justice who, as I said, has led this change in thinking was not present today. So he is still at home. He’s recovering, being treated for thyroid cancer. So he wasn’t on the bench.

He’ll still participate in the decision of this case as Justice John Paul Stevens announced this morning. But his absence was notable particularly for a case like this which is an area that has interested him throughout his career.

GWEN IFILL: But without him present that didn’t mean that the arguments ground to a halt. Other justices weighed in, I assume.

JAN CRAWFORD GREENBURG: Yes they did but it was hard to read. The more conservative Justices, the ones that you might think would side with the states as they have done in some of the other cases expressed some skepticism here. They seemed to suggest that perhaps Congress did have a role in regulating this kind of drug use and perhaps this was an issue that affected interstate commerce.

Justice Scalia and Justice Kennedy, two Justices who have been part of that five-justice majority to strike down other laws in the past, suggested today by their questions that perhaps the mere possession of this kind of marijuana, the personal use of it and growing it in your own home, that could also affect commerce because that means you’re not out buying the drugs on the market.

So that could have some impact on commerce that may be enough to allow Congress to step in here, pass this federal law and regulate this kind of drug use.

GWEN IFILL: On Justice Rehnquist, there are no new clues about when he might be returning to the Court if at all.

JAN CRAWFORD GREENBURG: No, Justice Stevens today said he would be absent from this week’s arguments and next week’s. And the Court goes on break until Jan.10. So we’ll have to wait and see. But he’s given us no indication of when he will return.

The Court spokeswoman, Kathy Arburg, said that he’s responding well to his treatment, that he’s working from home and he’s meeting with his staff and law clerks as necessary.

GWEN IFILL: The Court also today decided not to take a case we’ve read a great deal about and in fact probably talked a great deal about in different settings, and that’s the gay marriage case in law in Massachusetts which was challenged by this conservative group.

Now that the Court says — and we don’t know why — they just say we don’t want to take it. Does it end there?

JAN CRAWFORD GREENBURG: Well, this legal fight does. This issue now is going to go back to Massachusetts, and there’s some talk now that there could be as soon as a year after next voters could be asked to decide whether or not they would like to consider an amendment to the state’s constitution to restrict marriage to that between a man and a woman.

GWEN IFILL: And so that means — just because this… this is a narrow piece of the argument which came to the court. By the Court turning it down, that doesn’t mean that they’re completely ending that argument altogether?

JAN CRAWFORD GREENBURG: No. I mean, of course, 3,000 couples have been wed in Massachusetts since the state Supreme Court issued its decision. These issues are being played out in states across the country where gay and lesbian couples are filing lawsuits, also seeking the right to marry.

We’re going to see this debate played out across the country. Ultimately it’s an issue that the Supreme Court could be asked to decide particularly when people try to decide whether other states have to recognize marriages in Massachusetts.

GWEN IFILL: Jan Crawford Greenburg, thank you so much.