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Coffey: Medical marijuana case tests Congress' power

CNN legal analyst Kendall Coffey
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The U.S. Supreme Court hears arguments on medical marijuana.
• 2001 Supreme Court decision:  U.S. v. Oakland Cannabis Buyers' Corp.  (FindLaw)external link
• 9th Circuit Court of Appeals ruling:  Raich v. Ashcroft  (FindLaw, PDF)external link
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Drug Enforcement Agency (DEA)

(CNN) -- The U.S. Supreme Court heard arguments Monday on whether a federal ban on marijuana can be enforced in states that have legalized its use as a medical treatment with a doctor's permission.

CNN legal analyst Kendall Coffey discussed the case Monday with CNN's Rick Sanchez.

SANCHEZ: Wouldn't one of the main arguments here automatically be, with as sophisticated a medical system as we have, you're telling me that marijuana is the only way you can reduce your pain?

COFFEY: Well, that's certainly what some of the doctors are saying. In the case of the plaintiff in this case, they're saying that they tried 35 other medical treatments. None are as effective, for whatever reasons, as marijuana.

But interestingly, Rick, the big legal issue is as tedious and, frankly, technical as an accounting seminar. It's what is the power of Congress under the commerce clause [of the Constitution]? How far does it go? And ironically, the most important voice in the Supreme Court on that very issue will not be sitting in today.

Chief Judge [William] Rehnquist will be out. He'll be participating in the decision by reading the transcripts, reading the briefs. But he has offered the last two decisions in this fast-evolving area, and he's going to be a big factor in however this case is decided.

SANCHEZ: Is it a states' rights- versus federal rights-type of argument?

COFFEY: I think that's the most compelling thing here because interestingly three states that don't have medical marijuana laws -- Alabama, Louisiana and Mississippi -- have weighed in on this appeal and said, "Look, we don't agree with California and those other 10 states, but states ought to have a right to make this kind of decision."

Meanwhile, others are saying, Rick, that since 1970 the war on drugs has been a national war, a national challenge, dealing with a national problem, and you can't give it up and take away the power, for example, of the [Drug Enforcement Administration] agent to go into one state, as opposed to another, and find out whether the product is locally grown or not.

SANCHEZ: But the 9th [U.S. Circuit] Court of Appeals in California, in San Francisco, which tends to go a little bit to the left on decisions like this, is basically saying, look, as long as you're growing it yourself, you're not buying it from anybody, you're not selling it to anybody, you're not transporting it across state lines, you're pretty much OK. Doesn't it put the feds in a very difficult situation of doing an Elian Gonzalez-style raid on some elderly woman sitting in her apartment in Oregon who happens to be smoking something she grew in her garden?

COFFEY: And in one of these cases, they had a 3 1/2-hour standoff between DEA agents and a person suffering from degenerative spinal disease. So it's very emotional, it's very agonizing, and one of the odd things here is this weird juxtaposition between right and left.

Very conservative think tanks have come out and said, "Hey, this is a states' right issue." Meanwhile, the four justices who have opposed limiting Congress' power in the last two decisions have lined up -- [they] are the liberal justices who might be sympathetic to medical marijuana. So it's anybody's guess as to how this particular case is going to come down.

And again, it will be fascinating to see what Chief Justice Rehnquist has to say about something that's a national controversy in an area of his particular expertise.

SANCHEZ: I mean, you've got a sense of these things. There has to be some precedent. I know you mentioned a couple of cases. But if you were to put them all together and try and figure out which way they tend to go -- when you've got the states saying no, we're going to go this way, and you've got the feds saying, no we're going to go this way -- who usually wins?

COFFEY: Well, if there's no flip-flopping, a popular word, the trend of five justices led by Chief Justice Rehnquist has been to limit the power of Congress. They did it when they said that you can't have a congressional law prohibiting the use or possession of firearms within 1,000 yards of a school. They did it again in 2000 when they said a congressional law creating a federal remedy for a victim of rape is also unconstitutional.

However, Rick, let's look at the practical side. Are you really going to tell a DEA agent that when he goes through the door to make a bust that he's got to find out if the narcotics were locally grown or not? That's a very difficult implementation thing, and the fact is that we do see the war on drugs as a national challenge, as a national problem, as a national crisis still.

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