Last week U.S. District Judge Jeremy Fogel allowed Californians challenging the Bush administration's medical marijuana policy to proceed with a lawsuit arguing that federal interference in this area violates the 10th Amendment. The plaintiffs, led by the Wo/Men's Alliance for Medical Marijuana in Santa Cruz County, argued that "the federal government has pursued a policy of threatening and utilizing arrests, forfeitures, criminal prosecutions and other punitive means, all with the purpose of rendering California's medical marijuana laws impossible to implement and with the intent of coercing California and its political subdivisions to enact legislation recriminalizing medical marijuana."

The U.S. Supreme Court has upheld the federal government's authority to prosecute patients and their caregivers for possessing medical marijuana even when state law permits them to do so. But Fogel ruled that if the plaintiffs could prove the federal government is deliberately  undermining California's medical marijuana policy through selecive enforcement of the Controlled Substances Act and other means, they could make a case that it is unconstitutionally "commandeering" the state legislative process. He cited a concurring opinion by Alex Kozinski in a 2002 case where the U.S. Court of Appeals for the 9th Circuit rejected the federal government's policy of punishing doctors who recommend marijuana as a medicine by revoking the registration that allows them to prescribe controlled substances. "Much as the federal government may prefer that California keep medical marijuana illegal," Kozinski wrote, "it cannot force the state to do so."

This "commandeering" business is a poor substitute for insisting that the federal government exercise only those powers granted by the Constitution, which do not include prohibiting intrastate cultivation and possession of a disfavored plant. But the 10th Amendment argument could open up enough space to let California and other states tinker at the edges of drug policy. By the time this case is resolved, of course, an Obama administration may already have stopped the DEA's harassment of medical marijuana users and providers. That's assuming he keeps his word. It's worth recalling that George W. Bush promised a federalist approach to medical marijuana when he first ran for president, and that the interference challenged by this lawsuit began not under Bush but under Bill Clinton. Bush's predecessor not only wanted to punish people for distributing medical marijuana but provoked the 9th Circuit's rebuke by seeking to punish doctors for expressing politically incorrect opinions about the drug.

Fogel's ruling is here (PDF).