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U.S. Attorneys Crack Down on the Tenth Amendment


Since just last month, the Arizona Department of Health Services has been accepting applications for medical marijuana patient and caregiver cards. Voters in Arizona approved an initiative placed on the ballot via a citizen petition, Proposition 203, the “Arizona Medical Marijuana Act,’ in the general election last November. The measure, which took effect on April 14, narrowly passed by a vote of 841,346 to 837,005. So, despite opposition to Proposition 203 from all of Arizona’s sheriffs and county prosecutors, the governor, and the state attorney general, medical marijuana is now legal in Arizona.

Fourteen other states besides Arizona (Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington) have already legalized marijuana for medical use. Medical cannabis is also legal in the District of Columbia.

Once their application is approved and their registry card is issued, Arizonans can buy, possess, and use up to 2.5 ounces of marijuana every two weeks. They can also grow up to 12 marijuana plants if they don’t live within 25 miles of a medical marijuana dispensary.

But because the state of Arizona, like the federal government and the other forty-nine states, doesn’t believe in giving its citizens complete freedom to do “anything that’s peaceful,’ there are numerous restrictions and certain rules that must be followed. Lighting up in public places or at dispensaries is illegal. Pot plants can’t be planted openly in one’s backyard; they can only be grown in an enclosed, locked facility. Marijuana cannot be given to anyone without a valid registry card. And no one can apply for a card without written certification from a licensed Arizona physician stating that he has one of the “debilitating conditions’ recognized by the state (AIDS, cancer, glaucoma, hepatitis C, “severe and chronic pain,’ etc.).

Applying for a patient or caregiver card is not exactly easy either. There is a fee of $150 for a patient card ($75 if one is on food stamps) and $200 for a caregiver card (for those who purchase marijuana on behalf of a sick patient). A criminal record check must be passed (convicted felons need not apply), and fingerprints must be submitted. Everything must be submitted online using the proper forms in PDF format. Cards are only valid for a year, and renewal fees are the same as the initial fees.

States legalizing limited amounts of marijuana for medical use or decriminalizing limited amounts of marijuana for recreational use, which some states and cities have also done, is certainly a step in a libertarian direction; that is, a step toward more freedom and less government control over peaceful activity. But as I have pointed out elsewhere, there should be no laws regarding the buying, selling, growing, using, processing, or possessing of marijuana — or any other drug — for any reason, medical or otherwise.

But even this small step taken by Arizona toward individual liberty and personal responsibility is in jeopardy by the federal government. Permitting the use of marijuana — for any reason — actually conflicts with federal laws against the cultivation, sale, or use of marijuana that have been in place since 1937. The power of the federal government to override state and local laws that allow cannabis was confirmed by the U.S. Supreme Court in Gonzales v. Raich (2005).

On October 19, 2009, Deputy Attorney General David Ogden issued to U.S. attorneys a “Memorandum for Selected United State Attorneys on Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana.’ This document reads in part:

The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the department’s efforts against narcotics and dangerous drugs, and the department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.

In announcing these guidelines, Attorney General Eric Holder said:

It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal. This balanced policy formalizes a sensible approach that the department has been following since January: effectively focus our resources on serious drug traffickers while taking into account state and local laws.

According to a story in the Arizona Republic U.S. attorneys in California and Washington have recently told officials in those states that they intend to enforce federal laws that prohibit manufacture and distribution of marijuana: ,

U.S. attorneys in Washington state say a bill expected to reach the desk of Gov. Chris Gregoire this weekend could open landlords, dispensary owners and even state employees to prosecution under federal drug laws.

A U.S. attorney in California made similar comments about a city law in Oakland allowing marijuana warehouses.

This has been perplexing to state employees and potential dispensary owners in Arizona, and with good reason. A letter from the U.S. attorney for the Northern District of California to the Oakland city attorney makes it clear that the federal government views “growing, distributing, and possessing marijuana in any capacity, other than as part of a federally authorized research program,’ as “a violation of federal law regardless of state laws permitting such activities’:

The department is concerned about the Oakland ordinance’s creation of a licensing scheme that permits large-scale industrial marijuana cultivation and manufacturing as it authorizes conduct contrary to federal law and threatens the federal government’s efforts to regulate the possession, manufacturing, and trafficking of controlled substances. Accordingly, the department is carefully considering civil and criminal legal remedies regarding those who seek to set up industrial marijuana growing warehouses in Oakland pursuant to licenses issued by the City of Oakland, individuals who elect to operate “industrial cannabis cultivation and manufacturing facilities’ will be doing so in violation of federal law. Others who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers should also know that their conduct violates federal law. Potential actions the department is considering include injunctive actions to prevent cultivation and distribution of marijuana and other associated violations of the CSA; civil fines; criminal prosecution; and the forfeiture of any property used to facilitate a violation of the CSA.

Federal agents have already raided marijuana dispensaries in Montana, Michigan, and California.

In cracking down on those who grow, distribute, and use marijuana, U.S. attorneys are actually cracking down on the Tenth Amendment to the Constitution. The Tenth Amendment reinforces the truth that the power of Congress is limited to what is specifically enumerated in Article I, Section 8, of the Constitution. It makes it clear that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’

Congress has been granted no power to ban, regulate, or otherwise interfere with the production, sale, distribution, possession, or use of marijuana for the simple reason that it has no authority over any drug. Congress has no constitutional right to label anything a controlled substance.

The argument of the majority in Gonzales v. Raich (2005) that Congress has the power under the commerce clause to criminalize the production and use marijuana, even where states have approved its medical, use was answered in a blistering dissent by Justice Clarence Thomas:

By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power.

Certainly no evidence from the founding suggests that “commerce’ included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

If the federal government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers — as expanded by the necessary and proper clause — have no meaningful limits.

Congress has encroached on states’ traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens.

If the majority is to be taken seriously, the federal government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated’ to the federal government are “few and defined,’ while those of the States are “numerous and indefinite.’

The crackdown on marijuana by U.S. attorneys is an attack on the Constitution, the Founding Fathers, the principle of federalism, and the very nature of our republic. Although an ABC news poll taken last year showed that 81 percent of Americans were in favor of legalizing marijuana for medical use, this has nothing to do with why the federal war on marijuana should be ended. It all comes down to the issue of the legitimate powers of the federal government, not anyone’s preference for or against marijuana.

Conservative drug warriors — if they really revere the Constitution like they claim they do — are going to have to change their approach. In the country of Singapore, the penalty is capital punishment for possession of more than 15 grams of cannabis. Many “drug traffickers’ have been hung in Singapore. This came up once on a segment of the O’Reilly Factor. When Bill O’Reilly interviewed Newt Gingrich, here is part of the exchange that took place:

Now, they have no drug problem in Singapore at all, number one, because they hang drug dealers — they execute them. And number two, the market is very thin, because when they catch you using, you go away with a mandatory rehab. You go to some rehab center, which they have, which the government has built. The United States does not have the stomach for that. We don’t have the stomach for that, Mr. Speaker.

Well, I think it’s time we get the stomach for that, Bill. And I think we need a program — I would dramatically expand testing. I think we have — and I agree with you. I would try to use rehabilitation. I’d make it mandatory. And I think we have every right as a country to demand of our citizens that they quit doing illegal things which are funding, both in Afghanistan and in Mexico and in Colombia, people who are destroying civilization.

The same goes even for those diehard-Republican, red-state, ultra-conservative drug-warrior prohibitionists who go beyond O’Reilly and Gingrich. Any laws regarding the production, sale, distribution, possession, or use of marijuana — whether we agree with them or not — need to be passed at the state level. So, whether someone wants the death penalty for drug dealers and drug users or just fines and mandatory treatment, it is at the state level that these things must be decided instead of a one-size-fits all dictate handed down from Washington.

Libertarians would, of course, vehemently oppose even state and local wars on marijuana and other drugs, but at least these don’t make a mockery of the Constitution and our federal system of government.

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