Pubdate: Fri, 15 Aug 2003
Source: CNSNews (US Web)
Copyright: 2003 Cybercast News Service
Contact:  http://www.CNSNews.com/
Details: http://www.mapinc.org/media/1589
Author: Nathan C. Masters, CNSNews.com Correspondent
Cited: Drug Enforcement Administration ( www.dea.gov )
Cited: Drug Policy Alliance ( www. drugpolicy.org/ )
Cited: Wo/Men's Alliance for Medical Marijuana ( www.wamm.org )
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/topic/WAMM

FEDS COULD FACE 'REBELLION' OVER STATES' RIGHTS, MARIJUANA ACTIVISTS SAY

(CNSNews.com) - The escalating battle over whether marijuana can be legally
distributed to people claiming "medicinal" benefits from smoking the drug
threatens to become an all-out rebellion over states' rights, according to
marijuana activists.

County and city governments have sued the federal government over the issue.
Some local law enforcement agencies have also refused to cooperate with the
federal Drug Enforcement Agency. Drug Policy Alliance attorney Dan Abrahamson
said the message being sent by state and local officials to the federal
government is simple: "We don't want you here."

"To say that there is a rebellion against that, I think is true...the federal
authority is limited, and it is derived from the Constitution," Abrahamson
said.

A case pending in U.S. district court, County of Santa Cruz v. Ashcroft,
challenges the federal government's power to regulate the production and
distribution of marijuana. The plaintiffs, including the city and county of
Santa Cruz, argue that the Drug Enforcement Agency was wrong to raid and shut
down in September 2002 a Santa Cruz hospice that dispensed marijuana to
paralyzed or terminally ill patients.

The suit maintains that the raid violated the state and local governments'
constitutional rights to determine their own public health policy. California
voters approved the use of marijuana for medicinal purposes with Proposition
215 in 1996, and medicinal marijuana is also legal under local ordinance in
Santa Cruz.

Abrahamson, who is representing the plaintiffs, explained that the DEA derives
its authority from the Controlled Substances Act and the Interstate Commerce
Clause of the U.S. Constitution.

That clause from Article I, Section 8 of the Constitution reads: "The Congress
shall have the power... to regulate commerce with foreign nations, and among
the several states, and with the Indian tribes."

Abrahamson said the federal government's interstate commerce powers do not
extend to circumstances such as the Santa Cruz co-op, which did not charge its
patients for the marijuana.

"The federal government can exercise police powers insofar as the Commerce
Clause permits it," he explained. "And we're saying that when hospice patients
grow their own medication for themselves and use that medication within the
state and no money is exchanged and no commerce is taking place, the federal
police powers don't extend that far to allow federal agents to raid such an
organization."

James Ostrowski, a Buffalo, N.Y., attorney and columnist for LewRockwell.com,
told CNSNews.com that acting on a warped interpretation of the Commerce Clause,
Congress has far exceeded the powers originally granted to it by the
Constitution. The Commerce Clause, he said, was originally designed to prevent
state governments from enacting prohibitive trade tariffs.

"It was basically designed to create more or less of a free market," Ostrowski
said. "It was really more of a negative thing, to prevent the states from
screwing around with commerce. It wasn't anything like, 'Let's let the federal
government be some general government regulating commerce;' that wasn't the
point. The point was to create a relatively free market among the states."

In his opinion, Ostrowski said the Interstate Commerce Clause only grants
Congress the power to regulate the sale of goods or services across state
lines. If it really did grant Congress the power to regulate any sort of action
that affects commerce, as courts have generally ruled since Franklin
Roosevelt's "court packing scheme," then the idea of limited federal powers
would be pointless.

"A broad interpretation swallows up basically all the prerogatives of the state
and local governments," he said. "It's an excuse for totalitarianism."

The September 2002 raid of the Wo/Men's Alliance for Medical Marijuana (WAMM)
infuriated local leaders, who not only joined the group's lawsuit against the
federal government, but also allowed WAMM leaders to distribute marijuana for
medicinal purposes on Santa Cruz City Hall grounds.

In a letter urging the county board of supervisors to join the lawsuit,
Supervisor Mardi Wormhoudt wrote: "The DEA raid was an inhumane attack on very
sick people. A strong case can also be made that it violated federal
constitutional protections of individual citizens, as well as the state and
local governments."

The raid also prompted responses from angered state elected officials,
including Governor Gray Davis and state Attorney General Bill Lockyer.

Lockyer wrote an angry letter to U.S. Attorney General John Ashcroft and
then-DEA Administrator Asa Hutchinson describing the WAMM raid as a
"disheartening addition to a growing list of provocative and intrusive
incidents of harassment by the DEA in California."

Lockyer's letter continued: "The decision to continue federal raids on
medicinal marijuana providers when there is no evidence that the operation is
actually engaged in illicit commercial distribution is wasteful, unwise and
surprisingly insensitive when it comes to listening to Californians who have
made clear their support for medicinal marijuana at the ballot box. While I am
acutely aware that federal law conflicts with California's on this subject and
needs to be reconciled, surely an administration with a proper sense of
balance, proportion and respect for states' rights could and should reconsider
the DEA's policy and redirect its resources."

Local law enforcement leaders also responded negatively to the DEA raid. San
Jose Police Chief William Lansdowne, for example, pulled five of his officers
from the DEA-led task force that raided WAMM. Lansdowne explained his decision
at the time by saying that he could not put his officers in the middle of a
conflict between state and federal laws.

After a similar raid on a marijuana co-operative in West Hollywood in October
2001, local law enforcement leaders joined with city officials to condemn the
raid.

Captain Lynda Castro of the Los Angeles Sheriff's Department (LASD), which
patrols the city of West Hollywood, refused to help the DEA in the raid.

"This is going to hurt a significant population in this community," Castro told
the Associated Press. "I respect them for doing it, for operating a significant
service. To turn around and have them targeted is a hard pill to swallow."

Castro, who no longer works for the LASD's West Hollywood office, could not be
reached for contact. But watch commander Sgt. Bruce Thomas told CNSNews.com
that the co-op "did everything legally...and we were fine with it."

DEA Special Agent Ed Childress told CNSNews.com that "medical marijuana" or
"medicinal marijuana" is an incorrect term because the medical community and a
Supreme Court ruling have determined that marijuana has no medicinal value.

"There is no such thing as medical marijuana," Childress said.

Childress added that it was not the DEA's position to dispute the
constitutionality of the laws it enforces.

"We're not a policy-making organization," Childress said. "The DEA does not
form and make policy in the United States. That's up to our policymakers... and
we enforce the laws that have been handed down by the policy-making body of the
United States."

If the lawsuit fails, the Drug Policy Alliance's Bill Piper said state and
local governments would still be able to stymie DEA efforts.

"We might end up with a case, and San Francisco seems most likely because they
seem to be moving forward, of actually having the city or state grow marijuana
itself and distribute it, because there are stronger legal grounds because the
states have certain sovereignties," Piper said.

Childress declined to comment on what the DEA's response to such an action
would be, saying only "the direction that we receive from the Department of
Justice... is the direction we will take."

U.S. District Court Judge Jeremy Fogel heard oral arguments July 7 in the Santa
Cruz case. Abrahamson said his group expects Fogel's decision within the next
month.

A spokesman for the Justice Department said it is the department's policy not
to comment on pending litigation.

Ostrowski, the Buffalo, N.Y., lawyer/columnist, said he suspected California
political officials were being insincere in their use of the states' rights
argument to oppose federal drug policy.

"The politicians in California are a bunch of whores," he charged. "They're
just going to use whatever rationale gets them to where they want to go at the
particular time. I don't think they have any problem with the federal
government doing stuff, but if they don't like it, they'll just say, 'It's
states' rights,' but if they do like it, they won't have any problem with it."
- ---
MAP posted-by: Doc-Hawk