Archive for the ‘preemption’ category

What the End of Prohibition May Look Like: Preemption and the Legalization of Marijuana

July 13th, 2012

“What the End of Prohibition May Look Like”
Authored By Justin Butler
NORML Legal Intern
J.D. Candidate, George Washington Law School, Spring 2013

This upcoming November, voters in Washington and Colorado will go to the polls to decide whether marijuana should be totally legal in their respective States.  But will it matter?  After all, cannabis consumers and retailers in the 17 states that have legalized medical marijuana are still subject to harassment and arrest from the federal government.  The threat of federal action has halted the implementation of recently passed medical marijuana programs in Delaware and Rhode Island, and has slowed the progress of other States’ efforts to ensure that sick patients have access to the medicine they need.  In the first three years of the Obama administration, the federal government has participated in over 100 raids on medical marijuana dispensaries within states where medical marijuana is legal, even after promising shortly after assuming office that he would end federal raids on medical marijuana dispensaries that complied with state laws.   If voters in Washington and Colorado decide to take the leap and legalize marijuana, we have no reason to expect, based on prior actions, that the federal government will let these voters express and enforce their popular will unimpeded.

To fix the system, we must first understand the system.  This paper seeks to explain why the federal government has the power to ignore the democratic will of its citizens and to continue to enforce unjust laws on voters who have decided that the imprisonment of cannabis consumers is a waste of government resources and a threat to civil society.  While to government’s power to regulate the economy isn’t new, this power was only “recently” (by legal standards) expanded to give the government the power to ban non-lethal drugs.  After all, banning alcohol required an Amendment to the Constitution.  Yet, less than 50 years later, the Supreme Court changed its mind and allowed the federal government to ban marijuana without state approval, much less a Constitutional Amendment.

This apparently tyrannical power-grab stems, not solely from overzealous law makers, but from the inherent structure of our constitutional government.  There are certain explicit provisions in our Constitution, such as the Supremacy Clause, Commerce Clause, and Necessary and Proper Clause, that the Supreme Court has seized upon to allow the federal government to override the legislative wishes of individual states in the course of setting federal policy.  The first half of this paper provides a detailed overview of the powers provided to the federal government by the Constitution, and how these powers have been construed in recent times to allow the government to completely ban the possession, use, production, and sale of marijuana.

The federal government’s power in this arena is not unlimited, however, and there are certain actions marijuana reformers can take to help prevent this crackdown as they pen future marijuana legalization ballot initiatives.  The second half of this paper explains how, through proper legal drafting, reform activists can limit the ability of the federal government to strike down or limit the effectiveness of state marijuana initiatives.

If you would like to learn more on the subject of how the powers of the federal government operate to curtail your ability to consume cannabis, and how we can correct this injustice through the power of democracy, then this paper is for you.

Arizona Gov. Jan Brewer relents; dispensaries will be registered

January 13th, 2012

UPDATE: On Tuesday, an Arizona state court ordered the state to implement the dispensary provisions of the Arizona Medical Marijuana Act. The court also declared three medical marijuana regulations invalid and upheld other challenged regulations. The health department had said the state might wait until September or later to issue dispensary registrations. Hopefully, this means dispensaries will finally be registered by spring.

Today, Arizona Gov. Jan Brewer (R) announced she will not re-file her lawsuit questioning the validity of Arizona’s medical marijuana program. She also announced that once litigation is resolved challenging the health department rules, her health department will begin issuing dispensary registrations.

Gov. Brewer’s announcement follows a January 4 ruling dismissing her lawsuit. Judge Susan Bolton agreed with the ACLU, Department of Justice, and other attorneys, and found that there was no genuine, imminent threat that state employees would be prosecuted. Bolton said that Brewer could re-file if the problems with her complaint were addressed.

The U.S. attorney for Arizona at the time the case was filed, Dennis Burke, sent a letter to the Arizona health department on May 2, 2011 that flew in the face of the Obama Administration’s stated policy of not targeting those complying with state medical marijuana laws. Burke’s letter said “the [federal] CSA may be vigorously enforced against those individuals and entities who operate large marijuana production facilities” even if they are in compliance with state laws, as well as those who “knowingly facilitate the actions of traffickers.” After receiving the letter, Gov. Brewer directed Arizona Attorney General Tom Horne to file the litigation requesting clarity, even though Burke told media outlets that his office would not target state employees.

Today, Gov. Brewer wrote the acting U.S. attorney for Arizona, Ann Birmingham Scheel, noting her plans to finally move forward. Brewer requested clarification as to whether there are any activities state employees should not engage in and said “the Department of Justice and the administration which you serve will have a lot of explaining to do to the citizens of our country, and State of Arizona employees in particular, if the State’s reasonable and straightforward requests for clarity are ignored, and the Department of Justice then ambushes State employees with prosecution or civil penalties for implementing the AMMA and licensing medical marijuana dispensaries.”

Now, only one governor is stubbornly refusing to move forward with implementing a duly enacted medical marijuana dispensary program: Gov. Lincoln Chafee (I) of Rhode Island. Here’s hoping he finally sees the light.

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