Pubdate: Fri, 26 Dec 2014
Source: San Diego Union Tribune (CA)
Copyright: 2014 Union-Tribune Publishing Co.
Contact:  http://www.utsandiego.com/
Details: http://www.mapinc.org/media/386
Note: Seldom prints LTEs from outside it's circulation area.
Author: John H. Minan
Note: Minan is a USD law professor and co-author of "Reefer Madness," 
to be published by the American Bar Association in 2015.

MARIJUANA HISTORY

The use of marijuana stretches back more than 2,000 years. For most 
of American history, marijuana was legal under both federal and state 
law. The decline in the use of medical marijuana was accelerated by 
the development of other drugs, such as aspirin and opium-derived 
drugs. Thus, the advances in medicine helped to replace marijuana in 
the treatment of pain and other medical conditions.

In 1970, President Nixon signed the Comprehensive Drug Abuse 
Prevention and Control Act, which includes the Controlled Substances 
Act, as part of the "war against drugs." Congress classified 
marijuana as Schedule I drug because of its high potential for abuse, 
the lack of accepted medical use and the absence of accepted safety 
standards in medically supervised treatment.

Therefore, the manufacture, distribution or possession of marijuana 
became a federal criminal offense.

But as Bob Dylan warbled some years ago "The Times They are 
A-Changin'." The national movement to legalize medical marijuana 
began in California in 1996 with the passage of the Compassionate Use 
Act initiative, which amended the California Constitution. Although 
the substantive and regulatory detail varies among states, 23 states 
now allow qualified individuals to possess and use "medical 
marijuana" under state law. Additional states are considering doing the same.

In 2012, Colorado and Washington went further when they legalized the 
"personal" use of marijuana. In 2014, Alaska, Oregon and the District 
of Columbia followed suit in adopting similar laws. The U.S. 
Department of Justice (DOJ) is responsible for enforcing the 
Controlled Substances Act prohibition. The increased legalization of 
marijuana has prompted it to issue a series of memorandums (2009, 
2011, and 2013) essentially deferring to state enforcement.

But nothing in any of memorandums purports to legalize marijuana or 
prevents the DOJ from taking action regardless of state law.

On Oct. 28, 2014, the DOJ issued its most recent memorandum on 
marijuana and tribal lands. Native American tribes will be permitted 
to grow and sell marijuana on sovereign tribal lands, even in those 
states prohibiting marijuana, providing the tribes establish strict 
regulatory guidelines that protect federal priorities, such as 
preventing the distribution to minors or possession or use on federal property.

The DOJ expects those states and tribes legalizing marijuana, 
including medical marijuana, to establish strict regulatory schemes 
that protect the federal priorities. The regulatory schemes must be 
tough in practice, not just on paper, and include strong, state-based 
and tribal enforcement efforts, backed by adequate funding. Based on 
assurances that an appropriately strict regulatory system exists, the 
DOJ defers its right to challenge medical marijuana legalization.

On Dec. 14, 2014, Congress passed the 2014 Continuing Resolution 
Omnibus spending bill. It prevents the DOJ, including the FBI and 
Drug Enforcement Agency, from interfering with state medical 
marijuana laws. The DOJ is prohibited from using federal funds to 
prevent states from implementing state laws that authorize the use, 
distribution, possession or cultivation of medical marijuana. 
Although cheered by medical marijuana advocates, marijuana is still 
illegal under federal law. No state has the power to authorize the 
violation of federal law.

Using its authority to control spending is an inept strategy for 
dealing with medical marijuana. It undermines respect for the law. 
Congress should change the law if it wants to change the medical 
marijuana policy.

On Dec. 18, 2014, Nebraska and Oklahoma asked the Supreme Court of 
the United States to allow them to file an "original action" in the 
Court - "original" in the sense that the case starts in the Supreme 
Court. The motion claims that the state of Colorado has created a 
dangerous gap in the federal drug control measures enacted by 
Congress. This gap allows marijuana to flow into their states and in 
the process undermines the federal ban as well as their state bans. 
Nebraska and Oklahoma argue that Colorado law, which allows the 
personal use of marijuana and creates a system for growing, marketing 
and taxing marijuana, is pre-empted by federal law, and therefore 
should be found unenforceable.

No guarantee exists that the court will grant the Nebraska-Oklahoma 
motion. If it doesn't, that is the end of their legal battle to get 
the court to hear their original action claim.

On the other hand, it may be just the start of the political fight in 
the next Congress to get the federal government to change or enforce 
the federal law.
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MAP posted-by: Jay Bergstrom