editorial comment Let's see if the unwritten amendment on drugs prohibition is applied yet again to drugs

The Supreme Court is hearing arguments today in a case involving two important, but very different, legal issues: medical marijuana and federalism. Two California women have sued the federal government to stop it from prosecuting them for using marijuana for medical purposes, which they are permitted to do under California law. The court should uphold their right to use medical marijuana, but in a way that pays proper respect to Congress's power to make national laws.

This case arises out of an unusually dramatic face-off between federal and state power. In 2002, federal agents from the Drug Enforcement Administration showed up at the home of Diane Monson, who grew marijuana there and used it to treat a degenerative spine condition. In California, such use of marijuana has been legal since the voters passed Proposition 215 in 1996, the Compassionate Use Act, which allows seriously ill people to grow and use marijuana when a doctor has found it to be medically appropriate. The federal agents were met at Ms. Monson's home by sheriff's deputies, who found that her cultivation and use of the drug were legal under California law. After a three-hour standoff, the D.E.A. agents seized Ms. Monson's six cannabis plants and destroyed them.

Fearing that they would be deprived of medical marijuana in the future, Ms. Monson and another California woman, who has an inoperable brain tumor, sued the federal government seeking a declaration that the Controlled Substances Act, the federal law the D.E.A. agents were acting under, does not prevent them from using medical marijuana.

The central issue is whether Congress had the constitutional power to criminalize the women's activities. When it passed the Controlled Substances Act, Congress relied on the commerce clause of the Constitution, which authorizes it "to regulate commerce with foreign nations, and among the several states." In recent years, the Supreme Court has taken a narrow view of what that authorizes Congress to do. It has ruled, in 5-to-4 decisions, that Congress did not have the power to pass the Gun-Free School Zones Act or a key part of the Violence Against Women Act.

We remain troubled by these decisions and, more generally, by the court's narrow reading of Congress's power. But given the state of the law, the United States Court of Appeals for the Ninth Circuit was correct to hold that the federal government had no right to criminalize the California women's actions. The marijuana in this case was far removed from interstate commerce, since it was raised in California for use within the state and was not sold commercially. The Justice Department has argued that allowing Californians to use medical marijuana "seriously undermines Congress's comprehensive scheme for the regulation of dangerous drugs." But when an individual treats herself with marijuana, under the sanction of state law and with a doctor's guidance, the impact on trafficking in dangerous drugs is close to nonexistent.

Although the California women should win, it is important that they win on narrow, fact-specific grounds. Advocates of states' rights have latched onto this case and are urging the court to use it to radically rewrite its commerce clause rulings, reviving ancient precedents that took a more limited view of Congressional power. This is where the greatest danger lies in this case. If this sharply restricted view prevails, it could substantially diminish the federal government's ability to protect Americans from unsafe work conditions, pollution, discrimination and other harms.

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