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Now that Gonzales has won the medical marijuana fight, what is he going to do?



Published: Thu, June 9, 2005 @ 12:00 a.m.



Legal scholars will be able to spend years dissecting the 31 page opinion of the Supreme Court of the United States and the 45 pages of concurring and dissenting opinions in the case of Gonzales v. Raich.

And when the scholars are done, they'll have nothing more than we have today, a tortured attempt by the majority of the court to draw a comparison between wheat that was grown in 1942 (when the government had a clear interest in regulating the interstate flow of vital commodities in wartime) and marijuana grown for private, local use in 2005, when federal law clearly prohibits any interstate commerce in marijuana.

The clearest sentence written in all those 76 pages came from the pen of Justice Clarence Thomas, who wrote in dissent: Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything."

We are not saying that marijuana should be legalized, even for medical use. But Monson and Raich live in California, one of 11 states that have decided that a doctor should be able to prescribe marijuana for some patients.

While it is clear that such a law leaves room for abuse, the potential for abuse is no greater than that which exists with a pharmaceutical product. Yet, the government does not bar doctors from prescribing pain relievers -- even those far more powerful and addictive than marijuana -- it establishes regulations and penalties for illegal trafficking.

Twists and turns

It was almost bizarre to see some justices who could not bring themselves to apply the Commerce Clause to gun-free zones around public schools or to attempts to curb spousal abuse in past cases, argue for the use of the same clause regarding the private use of marijuana by suffering people.

The most challenging twists and turns were made by the court's most prominent conservative, Antonin Scalia, who is on President Bush's short list as the next chief justice. In a separate ruling released the same day, Scalia wrote that it would be wrong for federal government to impose provisions of the Americans with Disabilities Act on foreign ships that serve American ports and cater to American customers because it would create international discord and because Congress did not explicitly refer to cruise lines in the law. Yet he found a way to say it was OK for the federal government to reach into the backyard of an ailing California woman and pull six marijuana plants from the ground.

Now, about enforcement

On a practical level, the Supreme Court's ruling in Gonzales v. Raich was a bad one because it is virtually unenforceable.

The Bush administration has taken a hard stand against state medical marijuana laws and argued ferociously for its victory. Now, what will it do with that victory?

"I'm just going to keep doing what I'm doing. I don't really have a choice but to, because if I stop using cannabis, I would die," said Raich of Oakland, Calif., who suffers from ailments including scoliosis, a brain tumor, chronic nausea, fatigue and pain. She says she smokes marijuana every few hours.

Monson, an accountant who lives near Oroville, Calif., has degenerative spine disease, grows her own marijuana plants and will continue to do so. "I'm going to have to be prepared to be arrested," she said.

A Justice Department spokesman, John Nowacki, would not say whether prosecutors would pursue cases against individual users.

But if the Justice Department doesn't prosecute the very people who took the case to the Supreme Court, why did it bother fighting the case? And if it doesn't prosecute people who open defy the law now, it leaves itself open to accusations of selective prosecution down the road.

Attorney General Alberto R. Gonzales now has his name on a Supreme Court decision that he won. But he stands to lose if he orders his Justice Department lawyers to enforce the law against obviously sympathetic defendants or if he chooses to ignore the actions of Raich, Monson and others who plan on openly breaking the law.




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