Governor Jan Brewer and Attorney General Tom Horne are taking heat for seeking clarification from the feds on the status of Arizona’s newest medical marijuana law. They don’t deserve it.
Arizona voters approved an initiative legalizing medical marijuana last November. The dilemma is that marijuana use and possession are illegal under federal law. (To the untrained eye, the federal law appears unconstitutional unless substances cross state borders, but that’s another issue.) Under the U.S. constitution, federal law pre-empts state law where there is a conflict, so the legal status of medical marijuana users is unclear at best.
Brewer and Horne first sought advice from U.S. Attorney Dennis Burke. His response was hardly reassuring. He helpfully explained that a conflict has always existed between federal law and state medical marijuana laws. He stated that the federal government reserves the right to prosecute those in violation of federal laws. But, as he later explained, his letter did not signal a specific intention to go after state employees, a special concern of Brewer and Horne. “This is not a priority for us and will not be,” he counseled.
But “not a priority” somehow didn’t satisfy Brewer and Horne. They know that administrations change and the knowledge that you’re “not a priority” of the current enforcers provides no legal security in the long term. In the face of Burke’s inadequate response, they filed suit in federal court, hoping that a judge would determine whether Arizona’s medical marijuana laws were in violation of federal law.
That’s when the flak started. Brewer and Horne, both opponents of the initiative, were roundly accused of undermining the will of the people. I personally believe that marijuana should be legal for adults, period, so I would be on their case too if that’s all they were doing.
The criticism began with Burke himself, who was indignant that his letter was used to precipitate the lawsuit, calling it “disingenuous.” “They’re saying ‘I can’t believe he’s going after state employees.’ It’s not in my letter,” he claimed.
Of course, they said no such thing. The fact that there was nothing in the letter assuring protection of state employees was precisely their concern.
National groups like the Marijuana Policy Project chimed in, calling the lawsuit a “waste of taxpayer money.” Ryan Hurley, an attorney for marijuana dispensers, claimed they were “willingly or unwillingly (sic) … thwarting the will of the voters.”
Christian Palmer in the Arizona Capitol Times unwittingly exposed the logical fallacy of the critics. He wrote that “Brewer and Horne are seeking political cover (in the form of a court ruling that acknowledges the obvious lesson that federal law trumps state laws) to simply not allow medical marijuana in Arizona.”
Huh? It’s “obvious” to him that federal law prevails but they are still to be condemned because their motives are so darned impure?
The underlying problem is that the federal government has made a hash (no pun intended) of marijuana law enforcement. The Obama administration is hardly the first to employ highly selective enforcement strategies. They mostly look the other way, except when they don’t. They want to have it both ways — harsh laws on the books to mollify the “killer weed” crowd, with lax enforcement so that users aren’t too resentful.
Admittedly the lawsuit is problematic. Federal courts rule on cases, they don’t give advice, so it’s unlikely that Brewer and Horne will obtain judicial relief immediately. Meanwhile, the suit has turned into a legal melee, with would-be dispensers demanding to be named as defendants along with the federal government. Trial lawyers are in heaven.
But there’s an important issue at stake here. It’s the Rule of Law, the protection each American enjoys against being prosecuted simply because those in power have it out for us. Laws which are inconsistently enforced put far too much power in the hands of government officials, who get to decide when and who to prosecute.
Meanwhile, Arizonans involved with medical marijuana are left in a legal limbo at the mercy of whoever holds office at the moment. Brewer and Horne are right to demand better.
• East Valley resident Tom Patterson (pattersontomc@cox.net) is a retired physician and former state senator.
Arizona Willie posted at 7:28 am on Sat, Jun 25, 2011.
Governor Brewer was against the Medical Marijuana law. But it passed over her objections.
That made it a valid State Law.
Nowhere in the Arizona Constitution does it give the Governor the right to set aside a valid State Law. Nowhere does it give a Governor the authority to tell State employees to refuse to do their duty under the State law.
Governor Brewer, and other opponents of medical marijuana, know full well that the Federal Government has NEVER arrested a State employee for performing his job under a state medical marijuana law. NEVER.
Governor Brewers lawsuit is a thinly disguised attempt to get the Federal government to step in and declare Arizona's medical marijuana law void.
They may do that.
But, in the meantime, she has EXCEEDED her authority and possibly committed a crime by ordering state workers to not do their duty under a valid state law.
She was opposed to the medical marijuana law and has done everything she can think of to prevent and delay it's implementation. But telling state employees to not obey the law is EXCEEDING HER AUTHORITY and a CRIME in itself.
thcmc420 posted at 8:00 am on Sat, Jun 25, 2011.
DID ANYONE EVEN LISTEN IN SCHOOL ??
EDUCATION IS BETTER THAN A GUN !!!
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Some might argue that the U.S. Constitution delegates powers to the feds to arrest MMJ providers because of the schedule 1 status of cannabis in the Controlled Substance Act . However, the CSA’s schedule 1 requirements are: “1) Schedule I.– (A) The drug or other substance has a high potential for abuse. (B) The drug or other substance has no currently accepted medical use in treatment in the United States. (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.” Clearly, cannabis doesn’t qualify on B and C, and the Merck Medical Manual of Diagnosis and Treatment clearly states that cannabis is not physically addictive, so it doesn’t meet criteria for A either.
Conclusion: The power to regulate MMJ is not delegated to the federal government because it does not meet their own criteria to be a schedule 1 drug. Therefore, they have no power to regulate it and must reclassify or remove it from the list. Isn’t it ironic that tobacco meets all three criteria of the CSA Schedule 1, and yet, tobacco companies are instrumental in preventing the consumption of the non-addictive, medically safe and effective cannabis (visualize outstretched politician’s hands)? Meanwhile, tobacco, which clearly meets all three criteria of a schedule 1 drug (A) highly physically addictive, B) no medical use, C) not safe even when used under the directions of a physician and in fact proven to cause cancer), is legal, sold for a hefty profit, and the profits consequently used to influence the decisions of politicians making laws. When will the Fed arrest Big Tobacco???
Sincerely,
Michael J. Smith
"The evidence in this record [9-6-88 ruling] clearly shows that marijuana has been accepted as capable of relieving the distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record."
-- Judge Francis L. Young
DEA Administrative Law Judge
Administrative ruling on Petition to Reschedule Marijuana
Sep. 1988
thcmc420 posted at 8:01 am on Sat, Jun 25, 2011.
[beam]
DaveKAz posted at 1:31 am on Tue, Jul 12, 2011.
I just hope that you are not being too naive about what happened with medical marijuana in Arizona. Other articles have suggested that good ole Jan continued to communicate with Carolyn Short Of Keep AZ Drug Free that worked to defeat the medical marijuana proposition. That is, she continued to meet after the election. The documents that surfaced revealed the same basic reasoning that was used in Horne's lawsuit. You don't think that they were discussing how wonderful it would be if dispensaries would open in our half full strip malls do you? Perhaps they discussed how the state could spend the millions of tax dollars that dispensaries would generate... We are in a financial crisis regarding state funding aren't we? Anyway, the word on the street is that Carolyn Short and Bill Montgomery (Maricopa County Attorney and rabid prohibitionist of medical marijuana) cooked up the idea that it would constitute some form of conspiracy for state workers to license dispensaries. This is despite the fact that no state employee in any other medical marijuana state with dispensaries has ever been arrested for conspiracy by the federal government. The position of the federal government regarding dispensaries has not changed since before the election despite the concern generated by our governor over the recent letters from our US Attorney. The idea that you can send a law suit to a federal judge and require him to pick one of your two options as his only consideration for a resolution is ludicrous. Federal judges are very bright people and not likely to become enamored with the idea of becoming embroiled in the mess that good ole Jan has created. These are the actions of arrogant individuals who believe that they know better than both the federal government and the people of the good state of Arizona.