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.
Unfortunately Doc, the synthetic version (Marinol) has none of the nausea-combating properties that the actual smoke has. Having endured 40 days of radiation and 5 months of brutal chemo two years ago, I was given scripts for every anti-nausea med they had and none had any effect at all. At the insistence of a friend, I tried a few puffs of weed and within moments I felt a rush of relief throughout my gut. I was able to drink water and even eat a little.
I asked for a script for Marinol because I didn't like the "stoned" feeling I got from smoking the weed, and all it did was make me feel wasted for 12 hours and had no effect on the nausea.
There is something in the smoke that is not in the synthetic pill (actually it is a gel ball filled with oil). I asked around at Dana Farber and everyone I asked, patients, nurses, and doctors, all said my experience was by far the most common.
If Marinol worked, medical marijuana would not be an issue. But it doesn't. Ask any oncologist or cancer patient. I can't stress that enough.
It is unbelievable to me that some company can't isolate the actual THC and put it in some kind of vaporizer type thing that patients could use without having to smoke the weed after buying it illegally from the creepy guy down the street.
p.s. My scans are still clean. God bless the Dana Farber Cancer Institute.
You got the answer wrong to your own question. The CSA has been upheld. Your opinion on it means diddly.
Where does the Constitution require the SCOTUS to rule based on "intent?" Answer: It doesn't. And anyway, your opinion means diddly. The SCOTUS gets the last word, and they've spoken. CSA is constitutional. Pass an amendment if you don't like it.
well, Huck my friend it is not quite that simple
If it was a conflict btw a state statute and a muni ordinance, then yeah, state trumps.
But between states and fed, States have RIGHTS.
The federal gov’t doesn’t. Federalism is quite tenuous. A veritable house of cards if you will.
In some areas, most notably immigration, the Feds have reserved jurisdiction to themselves, so a better argument can be made that in the case of a conflict betw state and fed law, the fed law would trump. Even so, some state have decided the feds, having had oodles of time, have ceded their reservation, and these states have started to pass statutes dealing with the problem.
As for medical maryjane grown locally (as opposed to imported illegally from Meheeco)........not quite so clear. And then, will the Feds spend the resources to puxh the issue? If so, the effect of losing could be more far reaching than the Feds can stand to lose at this point.
Where it's grown is irrelevant. See Gonzalez v Raich (or Wickard v Fillburn)
That's a different question. There is no doubt CSA trumps state drug laws. Right now anyone who chooses state law over fed law is risking imprisonment.
So ... what we have, here, is government by usurped power, rather than granted authority. That's a nice way of saying "tyranny".
I hope this little exercise has helped enlighten your mind.
And even that was not because they wanted to shove something up the State's U-No-What.
It was to guarantee to the State's that the quality of immigrants would be high - "an uniform rule of naturalization". The States wanted it that way - so that no one would be letting in undesirables who then could cross unimpeded over state lines.
The States created the Federal Government, not the other way around - the Federal government is there to negotiate those things in common that the states should do in common - like foreign relations.
The States are not municipal sub-jurisdictions of the Federal government, no matter how much Lincoln and Seward might have wanted that to be.
Thus the use of the Commerce Clause for the CSA is an abomination, and merely proof of the dilution and politicization of the Supreme Court since FDR.
I already did. The Commerce Clause.
The SCOTUS, a body which rules arbitrarily according to its own whims and which is accountable to nobody, has used the interstate commerce clause to seize powers not granted to it or to the Congress.
Thank you, again, for confirming that our government (whatever the good intentions of its founders) is a functional tyranny.
I hope that this exercise has served to further enlighten your mind.
Not exactly. The people created the federal government. Here's James Madison on the subject, from the Constitutional Convention:
"Mr. MADISON thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions, and it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given a power to the Legislature to concur in alterations of the federal Compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people.The States are not municipal sub-jurisdictions of the Federal government
He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. 1. [FN12] A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void. 2. [FN12] The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of State Conventions in preference to the Legislatures for examining and adopting it.
Actually, that's exactly what they are. And that's how the Federalists wanted it:
A national government ought to be able to support itself without the aid or interference of the State governments, ...therefore it was necessary to have full sovereignty. Even with corporate rights the States will be dangerous to the national government, and ought to be extinguished, new modified, or reduced to a smaller scale.-- Alexander Hamilton
" I have well considered the subject, and am convinced that no amendment of the confederation can answer the purpose of a good government, so long as State sovereignties do, in any shape, exist. -- Alexander Hamilton
"I apprehend the greatest danger is from the encroachment of the States on the national government--James Madison
"Conceiving that an individual independence of the States is utterly irreconcileable with their aggregate sovereignty, and that a consolidation of the whole into one simple republic would be as inexpedient as it is unattainable, I have sought for middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities wherever they can be subordinately useful."--James Madison
"Under the proposed Govt. the powers of the States will be much farther reduced. According to the views of every member, the Genl. Govt. will have powers far beyond those exercised by the British Parliament, when the States were part of the British Empire."-- James Madison, June 29, 1787
You left out, “is it an enumerated federal power.”
Where is this prohibited in the Constitution? Answer: It isn't.
and which is accountable to nobody, has used the interstate commerce clause to seize powers not granted to it or to the Congress.
Powers not EXPRESSLY granted. But the Federalists intentionally rejected expressly delegated powers, and chose instead implied powers, including anything "necessary and proper."
There is nothing in the Constitution prohibiting this. In fact, it seems designed to be this way. Not that it's a surprise:
The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.
From the 11th essay of "Brutus" taken from The New-York Journal, January 31, 1788.
Thank you, again, for confirming that our government (whatever the good intentions of its founders) is a functional tyranny.
It's a lot better than a totalitarian, communist state, but it's not the limited small government fairy tale either. Big government is baked right into the Constitution. Hell, the whole point of it was to create a bigger, stonger government, to consolidate the colonies into one nation, and to subdue the power of the state governments. They achieved their objectives.
Some years later, no amendment needed to prohibit a recreational drug.
Feds credibility on this issue is below zero.
The Constitution isn’t limited to expressly delegated powers.
When you stand trial and a jury of your peers finds you guilty, they will have credibility.
When the government seizes your property and sends you to prison, where you live in a tiny cell with murderers and rapists, they might start to have some credibility.
When your arrest and sentencing is published in the local paper, along with others just like yours, and no one cares...you get the idea.
True enough. But your (and Scalia's) commerce clause hook is thin gruel.
Of course, you are correct that the current state of jurisprudence upholds your side of the argument. My point is that you and your federal government do not have or deserve any respect, period. Buzz off.
Why are you getting pissy with me? None of it's my fault. I'm just telling it like it is. All I said was Brewer is correct--she is. I got some people quibbling with me and I'm setting 'em straight.
What is it with people thinking that a statement of fact equals advocacy of that fact? If I say I've got the runs from eating some bad chili, it may be true. Does it mean I welcome the fact? No. It just means it is a fact.
(My bowels are actually fine. That was just an analogy.)
See again, prohibition.
-- ... and no one cares...you get the idea. --
-- Credibility has nothing to do with it. Government is force. --
Exactly like the Mafia, only with less honor, and less consent of the governed.
Where is this prohibited in the Constitution? Answer: It isn't.
Of course not. I never said otherwise. I simply called it what it is.
Where in the Constitution is the SCOTUS granted its power as final arbiter of the Constitution's meaning? Answer: Nowhere. John Marshall simply seized that power when the opportunity presented itself. The Constitution died that day.
You may comfort yourself that we aren't (yet) under the bootheel of "a totalitarian, communist state", if you like. It matters little. What we are under is the arbitrary rule-at-whim tyranny of the completely unaccountable. That it could get worse (and probably will), and that other countries have (had) it worse, is a discussion of degree, not kind.
"Stroke of the pen, law of the land", applies to more than just the imperial presidency.
Very similar to the Mafia. That’s government.
It's for the children. /sarcasm
See Brutus' 11th and 12th essays. For the pro side, see Federalist...IIRC it's 78. Hamilton.
The reason the plant is so effective vs. synthetic THC is that it is impossible to synthesize the same structure in a lab. See the papers on synthetic THC by Dr. Alex Shulgin
Unfortunately, research and development of this plant is still prohibited nearly worldwide. Very few chemists in the US are allowed and the government only allows those few to work with government-produced cannabis (garbage).
One day people will wake up. I am confident that cannabis will yield far better meds than opium.
There's no question the court has gained latitude over time. That's the nature of the government under this Constitution. Each precedent creates the foundation for the next, and so on. None of this is a surprise:
When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? and they are authorised to construe its meaning, and are not under any controul?
Brutus, 31 January 1788
That was well understood at the time, by proponents and opponents of the Constitition.
Now you want to argue legislative intent, when earlier you rejected it? ROFL!!!
It should not be hard to recognize that our government is simply out of control. That all four branches (the professional bureaucracy is effectively a fourth branch) regularly and routinely seize powers not granted to them. That they are functionally a tyranny.
Even the worst of the Federalists did not (overtly) intend to create an arbitrary, capricious, unlimited, and unaccountable government ... yet that is precisely what we have. Delegated authority is irrelevant to it; seized power is the rule of the day. It's tyranny, even if some folks are unwilling to call it that. Even your own arguments on this thread support that fact.
That's a really soft and fuzzy way of saying "seized power". Trouble is, those who seize power aren't particularly soft and fuzzy.
I think it's pretty obvious.
Incorrect. I said nothing of anyone's intent.