There’s just no being quit with Arizona’s medical marijuana realm. Just the last four days have provided plenty of intrigue hereabouts. In reverse chronological order, on Tuesday the 24th, this story hit the press wires:
Governor Jan Brewer and Attorney General Tom Horne announced in a statement Tuesday that Arizona will file a suit seeking a declaratory judgment from a federal court regarding the legality of the Arizona Medical Marijuana Act.
“For the state employees charged with administering the medical marijuana program or the Arizonans who intend to participate as consumers, it’s important that we receive court guidance as to whether they are at risk for federal prosecution,” said Governor Brewer in the statement. “As explained in a recent letter from the U.S. Attorney for Arizona, the federal government considers marijuana a controlled substance. Arizonans deserve clarity on an issue with such dire legal implications.”
Yeah, good luck with obtaining further clarity; in the meantime, is the state going to suspend all licensure proceedings (scheduled to gear up on June 1)? I’m betting it will; AG Horne knows that there will be a bit of delay in the proceedings while we wait for the federal court to issue an opinion, or more likely, throw out the lawsuit altogether, on a variety of grounds I won’t waste the readers’ time explaining, like a federal court’s jurisdiction to rule on the validity of state legislation.
Last Saturday, the Republic published an editorial fanning the flames, entitled “Feds Must End Pot-Law Confusion.” This was not a heavy think-piece. First, the title is weird. Actually, the federal government doesn’t have to do anything. There’s this wrinkle in the federal Constitution, at Article VI, Clause 2, that says that federal laws are the supreme law of the land. The only time that doesn’t apply is if the U.S. Supreme Court says the federal law is unconstitutional, and in the case of the Controlled Substances Act (CSA), it’s already been litigated, in Gonzalez v. Raich (2005). The Court concluded that the CSA is a valid exercise of the Commerce Clause by the national legislature, a federal constitutional grant of authority. It’s a crime to possess or sell marijuana. That’s what the federal government has done, and it’s done.
The Republic’s point is that there needs to be some uniform statement of federal intentions. Initially, I ask this-why did this become a crisis in 2011? The now-famous David Ogden letter of October, 2009, says that the Department of Justice doesn’t encourage a waste of taxpayer resources going after medicinal users of marijuana. It then says that the letter is advisory in nature only and that the U.S. Attorneys in the various districts must make up their own minds whether and how they will enforce the CSA in states that adopt medicinal cannabis statutes. A careful reading of that letter should have put everyone in mind in 2009 of the fact that federal enforcement was going to be ad hoc, on a state by state basis.
And second, doesn’t the federal response have to be ad hoc? Are all the 16 states’ (welcome to the club, Delaware!) medical marijuana statutes different? The answer is “yes” because there’s never been a “uniform act” for the states and the District of Columbia to adopt. A federal response to divergent statutory and regulatory schemes can’t be uniform, except in one instance, right? And you know what that instance is – where the federal government decides to arrest and charge everyone in the business along with the consumers.
The U.S. Attorneys are making up their minds one at a time how their offices will proceed, just as they are permitted to do by DoJ and just as they must in addressing the peculiar treatment of the medical marijuana industry in the states of their influence. In truth, it is possible to see a trend in many of the letters from the friendly local U.S. Attorneys who, here and there, are publishing a statement of their intentions. The trend is to warn – however “suggestively” – the local authorities that the business model must be that dispensaries start and remain a cottage industry, and not grow “to scale,” as entrepreneurial business are wont to do in this nation. No big cultivation sites, no big customer bases and no investment from trafficking sources, please. Read the USA Burke letter (it’s linked on the Arizona U.S. District Attorney’s Website).
This brings me around to the Republic’s last point, which is Congress should just amend the CSA to make marijuana a Schedule II drug, thus making it legal when appropriately prescribed. Has anyone thought to ask the medical community what it thinks about that? Do you suppose that anyone in that community may be influenced by a scientific paper recently (within the last 75 days) published in the British Medical Journal, one of the leading research journals in the healthcare field? Marijuana use causes psychosis in adolescents, apparently, or at least the paper asks whether, in adolescents, the higher-than-average instances of psychosis among marijuana users arises from a cause-and-effect relationship or simply is one of correlation? According to this recent study — which followed 1,923 German adolescents for a decade and makes adjustments for factors like age, sex, socioeconomic status, the use of other drugs, urban versus rural residence, and childhood trauma — marijuana use “precedes the onset of psychotic symptoms.” Furthermore, the study says that the longer an adolescent uses it, the greater is the risk for psychotic disorder. Guess the editorial staff of the Republic isn’t reading the professional literature, but maybe rather than rescheduling dangerous drugs as a knee-jerk reaction to the inconvenience of reading between the lines of a letter from the United States Attorney in your area we could apply a little more thoughtful analysis to the risks vs. the rewards?