CLAUSE CAN MAKE STATE LAWS GO TO POT GOVERNMENT: MEDICAL MARIJUANA IS VIOLATION OF COMMERCE STATUTE.

Byline: GARY M. GALLES Local View

IT wouldn't seem that marijuana grown in California and used here under a doctor's supervision would qualify as interstate commerce. Yet that is the basis for the federal government's assertion that it can overrule California's medical marijuana law, in Ashcroft v. Raich, to be heard today by the U.S. Supreme Court.

The ruling in question, by Ninth Circuit Court of Appeals Judge Harry Pregerson, rejected the federal position: ``The cultivation, possession and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized by commercial or economic activity.'' Therefore federal drug laws do not override medical marijuana laws that exist in California and nine other states.

Despite that straightforward logic, how the Supreme Court will rule is less clear, because the Commerce Clause has been tortured by past courts from its original narrow purpose into a federal authority so broad law schools call it ``the everything clause.''

The Commerce Clause arose to prevent states from imposing duties on goods from other states. It took that power out of state hands by allowing only Congress to regulate interstate commerce (with its traditional meaning of ``to make regular'' or ``to remove impediments'') but was not intended to create a federal power to control every aspect of life.

Federalist Paper number 11 describes the Commerce Clause not as a grant of federal power, but as a ``prohibitory regulation, extending ... throughout the states.'' Federalist 42 describes its purpose as ``the relief of the States which import and export through other States, from the improper contributions levied on them by the latter.'' Federalist 45 cemented its narrow scope: ``The powers delegated by the proposed Constitution to the Federal Government, are few and defined ... The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and prosperities of the people; and the internal order, improvement, and prosperity of the State.''

This stringent constraint on federal power made the clause one ``few oppose, and from which no apprehensions are entertained.''

Despite our Founders' intent, court rulings have transformed this ban of state restrictions on trade to an open invitation to virtually any federal dictate, gutting the 10th Amendment in the process. While it was only used to overturn state restrictions on interstate commerce until 1887, it has since been reinterpreted to justify federal restrictions on virtually anything, with the death blow coming in Wickard v. Filburn, in 1942.

The Wickard opinion eliminated virtually all limits on federal power under the Commerce Clause: ``Even if appellee's activities be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.'' In other words, the federal power to regulate interstate commerce extended to banning (the opposite of ``removing impediments'') production (not commerce) in a single state (not among states). Anything judged to have even distant or indirect effects (i.e., everything) became fair game for the feds.

If the Wickard standard is applied to medical marijuana, almost any alleged effect on interstate commerce in illegal drugs could justify federal supremacy. That is why the case may turn on whether the court accepts Judge Pregerson's finding that ``this limited use is clearly distinct from the broader illicit drug market,'' as that would eliminate the Commerce Cause rationale for federal jurisdiction.

In the last decade, the Supreme Court has begun narrowing its expansive interpretation of the Commerce Clause. As Chief Justice Rehnquist said in the 1995 Lopez ruling, ``If we were to accept the government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.'' That applies to medical marijuana, as well. However, if the court continues to move closer to the Constitution's intent, it will see that medical marijuana laws are state issues, not federal ones.