Medi-Mari at Supreme Court

Raich vaporizing cannabis in the hospital, August 2003

Lawyers for two seriously ill medical marijuana patients argued before the U.S. Supreme Court on Nov. 29 that the federal government is banned from regulating their intrastate use of the drug in accordance with California state law. At issue in the case, Ashcroft v. Raich, is whether the federal government can use its authority under the Commerce Clause of the U.S. Constitution to regulate the use of medi-pot by patients in states that have legalized the practice.

According to the U.S. Department of Justice, marijuana is an illegal substance under the Controlled Substances Act, a law enforced under the Constitution's authority for federal regulation of interstate commerce. That's what the feds say they were doing back in 2002, when they seized pot plants used by Angel McClary Raich and Diane Monson. But Raich and Monson (along with two John Doe caregivers named in the lawsuit) argue that the feds overstepped their powers by interfering with medical marijuana use conducted in compliance with California's Compassionate Use law, enacted by citizen initiative in 1996. Importantly, they argue, the marijuana plants in question were grown inside California, and no money was exchanged for the dope. Thus, no "interstate" commerce transpired, and federal intervention went beyond the government's constitutional scope.

Raich suffers from an inoperable brain tumor, among other conditions, and doctors say that her medical use of marijuana – allowing her to control pain and regain her appetite – has helped keep her alive; Monson suffers from crippling back spasms and, like Raich, did not respond to conventional therapies. The 9th Circuit Court of Appeals in San Francisco agreed with the two women's legal argument, a decision that was appealed by the DOJ to the Supreme Court. On Nov. 2, Montana became the 10th state to legalize medical marijuana use; none of these laws are currently recognized as valid by the feds. A decision in the case is expected in the spring. We'll have more coverage next week.