Medical Marijuana Case Raises Questions About Federalism

By Christine Hall | July 7, 2008 | 8:03 PM EDT

( - The Clinton Administration recently gained a conservative ally when the Family Research Council joined the government's case against a California medical marijuana law. The U.S. Supreme Court will examine in United States v. Oakland Cannabis Buyers' Cooperative whether federal law making marijuana illegal was intended to preempt a state's ability to make an exception for medicinal use of the drug.

The administration argues that federal law does preempt the state law in this case. The FRC agrees that marijuana use is not an issue for the states to decide. But others say regardless of whether Congress intended to preempt such state laws, it's another example of the federal government overstepping its constitutional authority, this time with support from conservatives.

"When the Republicans took over Congress in 1994, their big theme was federalism and reducing the size of the federal government," said Timothy Lynch, director of the Cato Institute's project on criminal justice. "Yet, here we are, with the voters in the states saying we want to adopt a different policy in our state, [and] the federal government...says [it's] going to arrest anybody who tries to use or prescribe medical marijuana," he said.

"A lot of the conservatives who have talked about federalism are being exposed as hypocrites," said Lynch. "They're not criticizing the federal government for dictating a one-size policy to all of the states."

Robert Maginnis, FRC's vice-president of national security and foreign affairs, says interstate commerce powers and the importance of the issue trump federalism. "No doubt, there are interstate commerce implications," said Maginnis, referring to Article I, Section 8 of the U.S. Constitution, which grants the federal government the power to regulate commerce between the states. "Substances don't know boundaries, but people do," he said. "If we're going to allow anyone to consume anything, even though it has some very serious consequences, the social costs [will be] astronomical" in terms of deaths from drug use.

"If we are not concerned about what a state does with regard to an illegal substance, then what's going to keep one state from competing against another?" Maginnis asked. "The federal law exists for a reason ... and there are very credible reasons to protect the FDA process," said Maginnis.

"The Supreme Court should heed drug czar Barry McCaffrey's words and see the smoke and mirrors of a 'carefully camouflaged, well-funded, tightly knit core of people whose goal is to legalize drug use in the United States,'" Maginnis added.

The motives for drug legalization notwithstanding, federalism expert Michael Greve disagrees with Maginnis's interpretation of the interstate commerce clause. "If this were a straightforward, constitutional case [before the Supreme Court], there is no way in the world that the feds could regulate this," said Greve, a scholar with the American Enterprise Institute.

"I could understand if the feds then said 'don't transport the stuff,'" Greve continued. "Just because you're allowed to use it in one state, even for medical purposes, it doesn't entitle you to go scot-free if you travel to the next state. If the next state criminalizes dope, you cannot carry your home state's law around you, like a shield around you, wherever you go," he said.

The bigger question that won't be challenged, according to Greve, is whether the FDA has the constitutional authority to regulate marijuana across state lines.

Both Lynch and Maginnis believe the Supreme Court will rule against the California law in a split vote, with the more conservative justices voting to strike it down and the more liberal justices endorsing the measure. Justice Stephen Breyer has recused himself from the case because his brother, U.S. District Court Judge Charles Breyer, previously ruled on the case.

Greve thinks the outcome will hinge on whether the justices think the legislative language was clear in preempting state law.