Skip to comments.Cannabis Capitulation: The Marijuana Exception to Jan Brewer's Federalism
Posted on 07/27/2011 10:42:14 AM PDT by Kaslin
New Jersey Gov. Chris Christie, a Republican and former U.S. attorney, has never been keen on his state's Compassionate Use of Medical Marijuana Act, which his predecessor, Jon Corzine, signed into law on the last day of his administration. But last week, Christie announced that New Jersey will proceed with plans to let six nonprofit organizations distribute marijuana to patients with "debilitating medical conditions" such as cancer, AIDS and multiple sclerosis, despite the risk of federal prosecution.
In Arizona, meanwhile, the Medical Marijuana Act approved by voters last November remains on hold thanks to Gov. Jan Brewer, who worries that it conflicts with the federal Controlled Substances Act. Brewer, a Republican who proudly advocates a "new federalism" that "protects the States and (their) citizens against an overreaching federal government," in this case seems happy to let the Obama administration override the will of Arizona's voters.
Although President Obama has repeatedly said he opposes "using Justice Department resources to try to circumvent state laws on this issue," several U.S. attorneys warned last spring that compliance with state law offers no protection against federal prosecution for growing or distributing marijuana. That position was confirmed by a June 29 memo from Deputy Attorney General James Cole.
Citing this reversal, Brewer has asked a federal judge to decide whether the Arizona Medical Marijuana Act, which she opposed before the election, "complies with federal law" or is "pre-empted in whole or in part because of an irreconcilable conflict with federal law." Oddly, Brewer expresses no preference between those two diametrically opposed choices, which reinforces the impression that her suit is a veiled attempt to overturn Arizona's law without antagonizing its supporters.
Brewer claims to be concerned about the legal exposure of state employees who license and regulate dispensaries. But Dennis Burke, the U.S. attorney for Arizona, says he has "no intention of targeting or going after people who are implementing ... state law."
In any case, all state regulators would be doing is determining who qualifies for a medical exemption from state drug penalties. As the American Civil Liberties Union notes in a motion to dismiss Brewer's suit, performing that function does not conflict with the Controlled Substances Act or prevent the federal government from enforcing it.
The ACLU argues that there are no plausible grounds for charging state employees with a federal crime, since licensing and regulating dispensaries does not involve growing or distributing marijuana and does not meet the intent and knowledge requirements for convicting someone of conspiracy, aiding and abetting, acting as an accessory or money laundering. The group adds that regulators could not be prosecuted simply for failing to rat out licensees to the feds, since "respecting confidentiality does not constitute an affirmative act," which is required to convict someone of concealing a felony.
Although Vermont, Delaware and New Jersey have proceeded with plans for state-licensed dispensaries despite the prosecution threats, Brewer is not the only governor who has capitulated to federal pressure. Washington Gov. Christine Gregoire, a Democrat who had supported a bill that would have authorized dispensaries, decided to veto it after receiving a threatening letter from U.S. attorneys. Rhode Island Gov. Lincoln Chafee, who ran as an independent, likewise has halted plans for dispensaries.
But Brewer's timidity is especially striking in light of her devotion to state autonomy in areas such as health care, where she has challenged federally mandated insurance, and immigration, where she has sought to pick up the slack from an administration she perceives as insufficiently committed to enforcing the law. "The United States has a federal government, not a national government," she declared in a speech last March, promising to "pursue a policy of renewed federalism" and complaining that "never during our nearly 100 years of statehood has federal interference ... been more blatant."
Two months later, Brewer surrendered to federal interference by suspending her state's medical marijuana program. Legal scholars often bemoan "the drug exception to the Fourth Amendment." Apparently there is also a drug exception to the 10th Amendment.
She is correct.
why do we need a “federal controlled substances act”? If a man wants to smoke, dope, or shoot himself to death he should be welcome to do so.
“If a man wants to smoke, dope, or shoot himself to death he should be welcome to do so.”
I agree, provided he doesn’t expect the rest of society to clean up his mess.
Is the Controlled Substance Act a federal law? Yes.
Does it criminalize marijuana? Yes.
Does federal law trump contradictory state law? Yes.
End of story.
It's an interesting question, but irrelevant. We have a Controlled Substance Act, and that is that. It's not going away anytime soon, and it is supreme law notwithstanding state laws to the contrary.
It seems that one of the problems here goes back many years, when (after intensive lobbying by herbal enthusiasts), Congress exempted natural remedies from the regulations governing ordinary drugs. Normally, if a company invents a new drug, such as an antibiotic, it must demonstrate its safety and effectiveness, and must isolate the active components, and eliminate (insofar as possible) extraneous matter. No such demand are mad for natural treatments. Thus people can market and sell all sorts of dubious, unproven herbs, which would never make it through FDA approval. Drug stores now often have whole aisles devoted to various flowers, roots, leaves and their derivatives, many of doubtful utility.
Marijuana has some components which might conceivably have pharmaceutical use (although probably far surpassed by synthetic drugs), but is now being offered in unrefined state, for dubious purposes. If this were an ordinary drug, the manufacturer would be required to isolate the active part, and prove its safety and effectiveness for specific uses. Marijuana escapes these requirements because it is a natural product.
Whether a drug is natural or not has nothing to do with is effectiveness or safety. The same principles should apply in either case. It is pure superstition to think that what is natural is necessarily good. Nature is not nice! I know: I just watched a gull tearing apart a robin a few days ago. Nature is cruel and unfeeling. In the 1930s, people used to think that radioactivity was good for people, that it was natures cure for all sorts of things. It came from the Earth, so it was thought to be good!
If marijuana is to be used as a drug, then it should be treated as a drug, not as a recreational intoxicant pretending to be a drug.
If a man wants to smoke, dope, or shoot himself to death he should be welcome to do so.
Were it only so, that the consequences of one persons acts applied only to himself! But you know that when marijuana is legalized, the reset of use will pay many times over: we will pay for the drug itself as part of some federal health plan, just as we already pay for dubious psychotherapies and various chiropractic treatments.
Then we will pay for the results: crimes by intoxicated medicated addicts, and treatments and support when their brains have been fried by years of psychedelic therapy.
I would be willing g to loosen drug laws if every person were required to pay for his own healthcare. By the way, then people would take much better care of themselves, and health standards might actually improve.
But we are far from this state of freedom, when a huge proportion of the population collects food stamps, apparently unable or unwilling to even feed themselves.
An infantile, dependent attitude (encouraged fully by the government) is well excepted in our declining society.
“Thus people can market and sell all sorts of dubious, unproven herbs, which would never make it through FDA approval. Drug stores now often have whole aisles devoted to various flowers, roots, leaves and their derivatives, many of doubtful utility.”
And many flowers, roots and leaves have proven utility (I’m not referring to marijuana). The FDA approves drugs which impair or kill many people every year, while deaths due to naturopathic treatments are extremely rare. The FDA helps suppress competition for the pharmaceutical industry, in part by requiring approx. $1B in testing costs that clearly will not be spent on non-patentable “flowers, roots, and leaves”. In a sane world complementary medicine (using the best of allopathic and naturopathic treatments) would be the norm.
Then do away with the federal “law,” which has no Constitutional basis whatsoever.
You asked, “Does federal law trump contradictory state law?”
The CORRECT ANSWER is, ONLY if FedGov has the Constitutional authority to PASS that particular law, which in this case, it clearly does NOT!!!
Based on the society we have today, they (and/or their families) would.
LOL. The Controlled Substance Act isn’t going anywhere. The GOP certainly doesn’t want to get rid of it, and I don’t really think many in the DEM party do either. And the majority of Americans don’t want it to go either. It’s here to stay.
And it has a Constitutional basis—the commerce clause.
Yes it does. SCOTUS has upheld the Controlled Substance Act. Shouting doesn’t change the fact.
SCOTUS once ALSO ruled that people with a darker skin tone (like my wife) had no rights at all and could be bought and sold like cattle. Didn’t make it right, though, did it?
I agree, provided he doesnt expect the rest of society to clean up his mess.”
Laws should be based on responsibilities and not morals.
Does the Federal Government have the authority to declare certain chemicals or vegetable matter "controlled substances"? NO.
The rest of your questions and answers are moot.
The commerce clause was intended ONLY to ensure that the several States did not impede interstate commerce by adding such things as tariffs to goods passing through them from other states. Read the Federalist papers and the Founders’ own words on the topic. The abortion we know as the commerce clause today was handed to us by the “modern progressive” POS, Teddy Roosevelt, who was clearly cut from the same big government mold as his kinsman, Frank.
The war on some drugs also started under the reign of the racist, socialist Woody Wilson, as a means of controlling the ethnic minorities in the country. Why alleged “small government conservatives” still favor this abomination is a mystery to me. Except that you are neither conservative nor in favor of small, Constitutional government, are you?
It was then, and is now, all about control over others, something utterly anathema to people who revere the Constitutional Republic the Founders tried to give us.