The Bush administration's top lawyer on medical marijuana told a lawyers'
convention Saturday that if California were allowed to defy federal drug
laws, other states could ignore federal civil rights laws.

Speaking at a panel of the American Bar Association's annual convention in
San Francisco, Justice Department senior trial counsel Mark Quinlivan said
states-rights arguments being advanced on behalf of California marijuana
providers and patients were comparable to legal arguments made in the past
by Southern segregationists.

States can't selectively assert their independence from the federal
government on national issues, Quinlivan said.

"You cannot cherry-pick your federalism," he said. If a California
initiative to legalize medical marijuana can override the federal
government's ban on marijuana, he said, then anything goes.

Lawyers representing medical marijuana clubs and the state said Quinlivan
picked the wrong example.

Civil rights laws upheld by the Supreme Court were based on the
constitutional guarantee of equality and on interstate commerce, said Gerald
Uelmen, a Santa Clara University law professor. Uelmen represented pot
cooperatives in a 2001 Supreme Court case and is the lawyer in three pending
federal cases. He contended the use of California-grown marijuana for
medical purposes has no effect on interstate commerce and is thus beyond the
scope of federal authority -- a central issue in the current cases.

There is also a moral distinction, argued Taylor Carey, a special assistant
state attorney general who wrote California's arguments challenging federal
drug enforcement against medical marijuana clubs.

"When the government acted to protect the civil liberties of the children of
Alabama, they acted with the highest degree of moral force," Carey said.
"When they act to prevent critically ill people from obtaining medication .
. .they are not acting with the same degree of moral propriety."

But Harry Litman, a former federal prosecutor and Justice Department
official in the Clinton administration, recalled that supporters of the late
Alabama Gov. George Wallace "thought he was defending some very strong moral
principles" in challenging federal civil rights enforcement.

The panel's subject was the federal-state conflict that has been boiling
since 1996, when California voters passed Proposition 215, legalizing
marijuana for medical purposes under state law, a model later followed by
eight other states.

The Clinton and Bush administrations aggressively asserted the supremacy of
federal drug laws, moving to shut down medical pot clubs, punish doctors who
recommended marijuana to their patients, and, since President Bush took
office, prosecute medical marijuana growers.

The Supreme Court upheld the closure of Oakland's pot cooperative in 2001
and ruled the federal marijuana ban did not exempt individuals who claimed a
medical necessity for the drug. But the court did not close the door to
constitutional arguments by marijuana advocates: that the federal government
has no authority to regulate drugs grown and used entirely within state
borders, and that dying and severely ill patients have a constitutional
right to relieve their pain.

Those issues have been raised by Uelmen and other lawyers in pending cases
on behalf of the Oakland club; a Santa Cruz medical marijuana cooperative
raided by federal agents last September; the city and county of Santa Cruz,
which have sued the federal government over the raid, and two Northern
California patients who used locally grown marijuana.

No judge has agreed with the arguments so far, but Uelmen said he is
confident of winning in the Ninth U.S. Circuit Court of Appeals in San
Francisco, where three of the cases are pending.

Quinlivan said, however, that every appellate court that has considered the
scope of the 1970 federal drug law has ruled that it applies to illicit
drugs produced, distributed and used entirely within state borders.

He also said the government's legal position does not reflect a lack of
compassion.

"Every one of us (in his Justice Department branch) has had people in our
own lives affected by AIDS and cancer," Quinlivan said. "We're not
interested in denying safe and effective medication. It's the principle of
law that we're discussing here and the integrity of the (federal approval)
process."



Pubdate: Sun, 10 Aug 2003
Source: San Francisco Chronicle (CA)