editorial comment Scalia as a judicial activist.....Now that's a surprise. Well, don't worry old man, people will keep puffing away, while you hide in your cloistered world fighting your little culture war. paraphernalia tips its hat to (gasp!) Clarence Thomas!!!!!

The Supreme Court on Monday upheld the power of Congress to prohibit and prosecute the possession and use of marijuana for medical purposes, even in the 11 states that permit it.

The 6-to-3 decision, a firm reassertion of federal authority, revealed a deep fissure within the coalition that over the past decade has provided the majority for a series of decisions curbing Congressional power and elevating the role of the states within the federal system. Two members of that coalition, Justices Anthony M. Kennedy and Antonin Scalia, voted this time to uphold federal authority.

The decision overturned a 2003 ruling by a federal appeals court that shielded California's Compassionate Use Act, the medical-marijuana initiative adopted by the state's voters nine years ago, from the reach of federal drug enforcement.

The appeals court had held that Congress lacked constitutional authority to regulate the noncommercial cultivation and use of marijuana that did not cross state lines.

But "the regulation is squarely within Congress's commerce power," Justice John Paul Stevens said for the majority on Monday. He added that the court's precedents interpreting Congress's authority under the Commerce Clause of the Constitution had clearly established "Congress's power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce."

The decision, Gonzales v. Raich, No. 03-1454, was not necessarily the last word on medical marijuana, either from the courts or from other branches of government. Under the terms of the opinion, the United States Court of Appeals for the Ninth Circuit, in San Francisco, will now consider other challenges to the application of federal drug law.

These include an argument made by the two women who brought the case that it is a violation of their constitutional right to due process to deprive them of what they say is the only drug that eases their suffering from a variety of painful conditions.

Because the two patients, Angel McClary Raich and Diane Monson, prevailed in the Ninth Circuit on their Commerce Clause argument, the appeals court did not address the other issues they raised.

Advocates for medical marijuana, meanwhile, emphasized on Monday that the state laws remained in effect, meaning that state officials would not prosecute patients who used medical marijuana, and that the prospect of federal enforcement was fairly remote. Allen Hopper, a lawyer with the Drug Law Reform Project of the American Civil Liberties Union, noted that the federal government handles only about 1 percent of marijuana prosecutions.

Justice Stevens, noting that "perhaps even more important than these legal avenues is the democratic process," suggested that the executive branch might reclassify marijuana for medical purposes or that Congress might take up the matter.

The first option appeared quite unlikely, given the response by John P. Walters, the Bush administration's "drug czar," the director of national drug control policy. "To date, science and research have not determined that smoking a crude plant is safe or effective," his official statement said, adding, "We have a responsibility as a civilized society to ensure that the medicine Americans receive from their doctors is effective, safe and free from the pro-drug politics that are being promoted in America under the guise of medicine."

The House of Representatives is due to vote next week on an appropriations amendment that would prohibit the Justice Department from spending money to enforce federal drug laws against patients using marijuana for medical purposes. While the amendment failed last year, 19 Republicans voted for it. It was not brought to a vote in the Senate.

Mrs. Raich, one of the plaintiffs, speaking along with her husband and lawyers in a telephone news conference, said she would continue to use the marijuana that was prescribed by her doctor and is grown for her by friends. "I don't have a choice but to continue because if I stopped I would die," she said. She suffers from a wasting syndrome, among other ailments, and said that only marijuana gave her the appetite to eat enough to maintain her weight.

The women brought the case after federal agents arrived at Ms. Monson's home in 2002 and, after a three-hour standoff, seized and destroyed her six plants. The two women sued for a declaration that the federal Controlled Substances Act did not apply to their situation.

The opinion by Justice Stevens was joined by his allies in many recent battles over federalism, Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, and by Justice Kennedy, who did not provide an explanation for his vote.

Justice Scalia, by contrast, explained himself at length. He did not sign the majority opinion, instead offering a separate concurring opinion that was no less definite in its support for federal authority.

"Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce," Justice Scalia said. He cited opinions from the early 1940's, after the Supreme Court rallied to support the New Deal and gave Congress a degree of power over national affairs that was not seriously challenged until the Rehnquist Court began invalidating federal laws in the mid-1990's.

Chief Justice Rehnquist was one of the dissenters on Monday. He and Justice Clarence Thomas joined a dissenting opinion by Justice Sandra Day O'Connor; Justice Thomas also wrote a separate dissenting opinion.

As a prime mover of the court's federalism revolution, Justice O'Connor did not hide her dismay. The court's opinion provided a roadmap to "removing meaningful limits on the Commerce Clause" and "threatens to sweep all of productive human activity into federal regulatory reach," she said.

Justice O'Connor said that while she did not support the medical marijuana initiative as public policy, it represented the kind of innovation and "experiment" that came within the latitude the Constitution allows the states.

"The states' core police powers have always included authority to define criminal law and to protect the health, safety and welfare of their citizens," she said, adding that "whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case."

Justice Thomas said that "if Congress can regulate this under the Commerce Clause, then it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers."

The sharpest dispute was over the meaning of two of the core decisions of the Rehnquist Court's approach to federalism. Both struck down federal laws, the Gun-Free School Zones Act and the Violence Against Women Act, on the ground that they exceeded Congressional authority, and both were decided by five-member majorities that included Justices Kennedy and Scalia.

While Justice O'Connor declared that the marijuana decision was "irreconcilable" with the earlier ones, Justice Scalia disagreed. Neither of the earlier decisions "involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation" comparable to federal drug laws, he said.

Besides California, states allowing use of marijuana for medical purposes are Alaska, Arizona, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Washington and Vermont.

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