This article was written by guest author SpearIt. SpearIt is an Associate Professor of Law at St. Louis University School of Law. This article was also published by the Society of American Law Teachers here.
States which have legalized medical marijuana are at a critical juncture and may be forced to make some important decisions. In places such as Arizona and Colorado, doctors, dispensaries, and medical commissioners all face peril for performing their duties—duties which keep with state law, but may breach federal law. The future of this debate largely hinges on how hard states are willing to fight the federal government, or alternately, whether Congress can effectively intervene.
This issue took an important turn in June when the Justice Department issued a memo to clarify an earlier memo issued in 2009. The 2009 memo seemed to carry out Obama’s 2008 campaign promises to end U.S. Drug Enforcement Administration raids on medical marijuana suppliers in states with their own laws permitting medical use. The recent June 2011 memo, however, marks a stark contrast: even those following the rules may still be in “violation of the Controlled Substance Act, regardless of state law.”
This about-face by the federal government is vexing in light of direct statements made by Obama, such as this interview with a newspaper editor in Oregon: “What I’m not going to be doing is using Justice Department resources to try to circumvent state laws on this issue simply because I want folks to be investigating violent crimes and potential terrorism.” Apparently the President’s agenda has changed. Why has Obama’s support for medical marijuana all but vanished?
Perhaps the June 2011 memo responded to a recent lawsuit filed by the Governor of Arizona. The suit seeks a determination as to whether strict compliance with the new Arizona law provides protection from federal prosecution. Or perhaps the memo was a quiet boost to the President’s “tough on crime” stance for the upcoming election. Or maybe it’s political schizophrenia, or just plain politics.
What the Justice Department memo really means is hard to say, but one report notes Obama’s affinity for raiding dispensaries, which eclipses the Bush administration’s. With some 100 raids since taking office and about two dozen prosecutions of patients, providers and caregivers, Obama has broken yet another promise to the American people and has entrenched the federal government deeper in the business of the states. Instead of upholding his word, Obama is holding up the word of the people.
In a country where only about half the eligible voters actually vote, the democratic process should be encouraged, not ignored. The voice of America is speaking, with the passage of medical marijuana laws in sixteen states and D.C., with ten more states with pending legislation. Despite the years of hard work that allowed for the passage of these laws, the leadership is not listening. Instead of giving young voters more faith in the system, it has given them every reason to feel jaded about American politics. But of course, for the 800,000 who were arrested on marijuana charges last year, the point is moot, even more so for those convicted since many of them will face an uphill battle to regain voting rights, adding to the over 5 million Americans already felony-disenfranchised.
The medical marijuana debate takes on the characteristics of other disputes that shape political America. It can make a liberal look like a conservative, and make a staunch republican look to the federal government to overrule state sovereignty. Like right-to-lifers who vote for the death penalty, attitudes toward medical marijuana elicit political contradictions such as Justice Thomas’ dissent in Gonzales v. Raich in 2005: “In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.”
Caught in the middle are countless doctors, state employees and other law-abiding citizens acting in good faith compliance with their state laws. Whether the government’s posture is a bluff or trailer to the War on Drugs II is for the future to tell, but many know what it means now: it foretells that many can be subject to arrest and imprisonment, an audit from the IRS, or even stripped of a medical license. These sobering facts might make even a strong supporter of the War on Drugs wonder if these citizens are the real enemies, warranting treating them the same as cartel and drug-gang leaders. Regardless of where one comes out, the cartels themselves come out way ahead; the Justice Department’s new statement guarantees that they will stay in business by inheriting the medical marijuana base—while patients are forced into felony in the quest to access a plant humans have used medicinally for centuries.
But all is not lost, since Reps. Ron Paul and Barney Frank introduced a bill to Congress in June to remove marijuana from the list of federally controlled substances and allow states to decide how to regulate it. Perhaps Congress can take a deep breath and shake hands on this issue to clear the smoke that makes the President choke.