Pubdate: Fri, 30 May 2014
Source: Forbes Magazine (US)
Copyright: 2014 Forbes Inc.
Contact:  http://www.forbes.com/forbes/current/
Details: http://www.mapinc.org/media/769
Author: Jacob Sullum

ANTI-POT REPUBLICANS FORSAKE FEDERALISM IN MEDICAL MARIJUANA VOTE

Early this morning, by a vote of 219 to 189, the House of
Representatives approved an amendment aimed at stopping federal
interference with state laws that "authorize the use, distribution,
possession, or cultivation of medical marijuana." If it is included in
the appropriations bill passed by the Senate and signed by the
president, the amendment would prohibit the Justice Department, which
includes the Drug Enforcement Administration (DEA), from spending
taxpayers' money on dispensary raids or other attempts to stop medical
use of marijuana in the 22 states that allow it.

Similar measures have failed in the House six times since 2003. This
year the amendment attracted record support from Republicans, 49 of
whom voted yes, compared to 28 last time around. "This measure passed
because it received more support from Republicans than ever before,"
says Dan Riffle of the Marijuana Policy Project. "It is refreshing to
see conservatives in Congress sticking to their conservative
principles when it comes to marijuana policy.

Republicans increasingly recognize that marijuana prohibition is a
failed Big Government program that infringes on states' rights."

Yet Republicans still overwhelmingly opposed the amendment, by a ratio
of more than 3 to 1, while Democrats overwhelmingly supported it, by a
ratio of 10 to 1. Given the GOP's frequent lip service to federalism,
the party's lack of enthusiasm for letting states set their own
policies in this area requires some explanation. So does the need for
this amendment under a Democratic administration that has repeatedly
said it is not inclined to use Justice Department resources against
medical marijuana users and providers who comply with state law. It is
hard to say who is being more inconsistent: a president who promised
tolerance but delivered a crackdown or members of Congress who portray
themselves as defenders of the 10th Amendment but forsake federalism
because they are offended by a plant.

During his first presidential campaign, Barack Obama repeatedly
signaled that he would take a less repressive approach to medical
marijuana than George W. Bush had. Campaigning in New Hampshire during
the summer of 2007, Obama said raiding patients who use marijuana as a
medicine "makes no sense" and is "really not a good use of Justice
Department resources." In a March 2008 interview with southern
Oregon's Mail Tribune, he went further, saying, "I'm not going to be
using Justice Department resources to try to circumvent state laws on
this issue." Two months later, when another Oregon paper, Willamette
Week, asked Obama whether he would "stop the DEA's raids on Oregon
medical marijuana growers," he replied, "I would, because I think our
federal agents have better things to do."

Critics of the war on drugs were therefore puzzled that DEA raids on
medical marijuana providers continued after Obama took office in 2009,
even as the White House reaffirmed that "federal resources should not
be used to circumvent state laws" and Attorney General Eric Holder
claimed to be implementing that policy. "The policy is to go after
those people who violate both federal and state law," Holder declared
during a March 2009 session with reporters in Washington. "Given the
limited resources that we have," he said during a visit to Albuquerque
three months later, the Justice Department would focus on "large
traffickers," not "organizations that are [distributing marijuana] in
a way that is consistent with state law."

Deputy Attorney General David Ogden elaborated on that theme in an
October 2009 memo, telling U.S. attorneys that "as a general matter"
they "should not focus federal resources" on "individuals whose
actions are in clear and unambiguous compliance with existing state
laws providing for the medical use of marijuana." Ogden mentioned two
specific classes of people who should be left alone: "individuals with
cancer or other serious illnesses" and their caregivers. But he also
listed criteria for federal prosecution, such as "sales to minors,"
"sale of other controlled substances," and "financial and marketing
activities" inconsistent with state law, that make sense only when
applied to suppliers.

He warned that "claims of compliance with state or local law may mask
operations inconsistent with the terms, conditions, or purposes of
those laws"-meaning that federal prosecutors had to distinguish
between bona fide medical marijuana dispensaries and fake ones.

Yet the DEA's raids continued.

If anything, the pace picked up. Meanwhile, federal law enforcement
officials such as Jeffrey Sweetin, the special agent in charge of the
DEA's Denver office, and Melinda Haag, the U.S. attorney for the
Northern District of California, publicly disavowed the notion that
they needed to consider state law at all.

Pressed to explain the contradiction, the Justice Department issued
another memo in June 2011. Backtracking in the guise of clarification,
James Cole, Ogden's successor, insisted that prosecution threats
against medical marijuana suppliers from Haag and other U.S. attorneys
were "entirely consistent" with the Ogden memo, which he claimed
applied only to patients and caregivers, meaning people "providing
care to individuals with cancer or other serious illnesses, not
commercial operations cultivating, selling or distributing marijuana."
The Ogden memo's guidelines for distinguishing between genuine
dispensaries and criminal fronts went down the memory hole, along with
all of the assurances from Obama and Holder about respecting state
law. In fact, since the Justice Department was now saying anyone but
patients and caregivers was fair game for prosecution, Obama's policy
was indistinguishable from Bush's.

Two years later came another DOJ memo and another reversal.

This one was issued last August, after Obama was safely re-elected,
after several more states had legalized medical marijuana, and after
voters in Colorado and Washington, where cannabis was already allowed
for medical use, decided to legalize it for recreational use as well.
Still pretending merely to elaborate on what had always been a
consistent policy, Cole said the Justice Department would not try to
block legalization in Colorado and Washington as long as the new
markets were properly regulated.

He also suggested that it would not be a good use of DOJ resources to
target marijuana businesses, whether medical or recreational, that
comply with state law, provided they did not implicate any of eight
"federal enforcement priorities," including prevention of interstate
smuggling, violence, involvement by organized crime, and distribution
to minors.

One of Colorado's first state-licensed pot stores (Image: Denver Post vid
eo)

So far the Justice Department has indeed allowed legalization to
proceed in Colorado, where state-licensed retailers have been selling
marijuana since January, and in Washington, where growers have begun
to produce marijuana for the recreational market and the first pot
shops are supposed to open this summer.

Yet the feds continue to go after medical marijuana growers and
distributors, even when, as in the case of the Kettle Falls Five, they
are clearly complying with state law. Hence the impetus for the
amendment approved by the House today, which aims to protect patients
and providers from harassment, arrest, forfeiture, and
prosecution.

My impression after following this story since 2007 is that Obama was
sincere in saying state-legal patients and providers should be left
alone but did not care enough about the issue to override resistance
from the DEA and federal prosecutors (some of whom are more hostile to
marijuana than others). Furthermore, he probably was surprised and
embarrassed by the "Green Rush" that followed the 2009 Ogden memo,
which encouraged many entrepreneurs to get into a business they
otherwise would have considered too legally risky.

But given growing public support for legalization (which got more
votes in Colorado than Obama did in 2012), he decided it was best not
to directly challenge that policy in states that choose to adopt it.

While Obama seems like a feckless and halfhearted supporter of
marijuana federalism, most Republicans seem utterly unprincipled on
this issue. Here is an opportunity to defend something they supposedly
believe in-state autonomy under the Constitution-while simultaneously
criticizing a Democratic administration and siding with a majority of
Americans. In a recent Politico essay, Grover Norquist, president of
Americans for Tax Reform, and Ethan Nadelmann, executive director of
the Drug Policy Alliance, argue that opposing federal interference
with medical marijuana is politically smart:

A recent Pew Research Center survey found that nearly three in four
Americans-including 78 percent of Independents, 71 percent of
Democrats and 67 percent of Republicans-believe that efforts to
enforce marijuana laws cost more than they are worth.

Similar numbers-80 percent of Democrats, 76 percent of Independents,
and 61 percent of Republicans-favor making medical marijuana legally
available.

The outlook for anti-pot Republicans looks even worse when you
consider age trends.

In a Gallup poll last fall, overall support for legalizing marijuana
was 58 percent, including 67 percent of 18-to-29-year-olds and 62
percent of 30-to-49-year-olds. A CNN poll conducted in January put
overall support for legalization at 55 percent and found a similar
breakdown by age: Two-thirds of 18-to-34-year-olds said pot should be
legal, and nearly as many 34-to-49-year-olds agreed.

Are Republicans so blinded by anti-pot prejudice that they are willing
to forsake political self-interest as well as principle?

Apparently yes. Not only have most Republicans failed to criticize the
Obama administration's haphazardly heavy-handed approach to medical
marijuana; many of them have faulted the administration for failing to
block broader legalization in Colorado and Washington. They
erroneously argue that using prosecutorial discretion to give states
leeway on this issue violates the president's constitutional duty to
uphold federal law. "Federal law takes precedence" over state law,
Rep. Jason Smith (R-Mo.) told Holder during a congressional hearing
last month. "The state of Colorado is undermining=C2=85federal law, corre
ct?

Why do you fail to enforce the laws of the land?" Not surprisingly,
Smith voted against the medical marijuana amendment today.

During the floor debate, opponents of the amendment questioned the
medical benefits of marijuana and argued that allowing patients to use
it is a prelude to broader legalization. Rep. Frank Wolf (R-Va.) cited
opposition from professional medical organizations, while Rep. Andy
Harris (R-Md.) argued that "it's the camel's nose under the tent." Yet
neither of these arguments has anything to do with whether the federal
government has the authority to stop states from allowing medical use
of cannabis if that is what their legislators or voters decide to do.
For a true federalist, this is the crucial question.

Whether or not Wolf and Harris think medical marijuana laws are a good
idea, our system of government does not allow them to impose that
judgment on the states.

As reflected in today's vote, there is a growing number of honorable
exceptions to this overbearing, centralizing Republican tendency.

Rep. Dana Rohrabacher (R-Calif.), who cosponsored the medical
marijuana amendment, has been backing such legislation for more than a
decade. This year he was joined by conservative Republicans such as
Tom McClintock (Calif.), Paul Broun (Ga.), and Steve Stockman (Texas).
Last year Rohrabacher introduced the Respect State Marijuana Laws Act,
which goes further, declaring that the provisions of the Controlled
Substances Act dealing with cannabis "shall not apply to any person
acting in compliance with state laws." Republican cosponsors of that
bill include Stockman, Justin Amash (Mich.), Don Young (Alaska),
Thomas Massie (Ky.), and Duncan Hunter (Calif.)

Before Rohrabacher's amendment was approved, Norquist and Nadelmann
correctly argued that it "ought to be an easy 'yes' vote for members
of the 10th Amendment Task Force on Capitol Hill and other believers
in limited government and federalism." The task force, founded in
2010, is a project of the Republican Study Committee (RSC), where
conservative legislators are supposed to develop policies consistent
with their principles. How many members of the RSC task force devoted
to the 10th Amendment voted for federalism today?

According to a tally by the Drug Policy Alliance, 10 out of 47. That's
21 percent, up from 11 percent in 2012. It looks like Republicans may
be gradually recovering from a cannabis-induced fog that made them
forget the Constitution.
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MAP posted-by: Matt