View the debate “What would a saner drug policy look like?” between Sean Dunagan, a former DEA Analyst and Kevin Sabet, former Obama Admin. Adviser.
In the first installment of this series, I discussed the fallacy of rescheduling as part of the “medical” marijuana issue. This final part focuses on the issues brought up by the governors in their rescheduling petition: a so-called “consensus” opinion of doctors who approve of raw marijuana as medicine, and, the issue brought on by the California Medical Association that essentially says research on marijuana cannot go forward without legalization. I will tackle each at a time.
The governors’ petition asserts that there is a “consensus of medical opinion concerning medical acceptability of cannabis amongst the largest groups of physicians in the United States.” In support of this statement, the petition cites the American Medical Association’s (AMA) alleged “reversal” of its position that marijuana should remain a Schedule I substance. However, contrary to the governors’ petition, the AMA does not believe that there has been sufficient research to justify making herbal marijuana itself available as a prescription medication: “Despite more than 30 years of clinical research, only a small number of randomized, controlled trials have been conducted on smoked cannabis.”1
Furthermore, while the AMA’s Report does state that the Schedule I status should be “reviewed,” it limits the purpose of such review to the “goal of facilitating clinical research and development of cannabinoid-based medicines, and alternate delivery methods.”2 AMA does not recommend that marijuana should be rescheduled in order that it can be directly prescribed and dispensed in its raw form to patients. In fact, the AMA recommendation goes on to caution: “This should not be viewed as an endorsement of state-based medical cannabis programs, the legalization of marijuana, or that scientific evidence on the therapeutic use of cannabis meets the current standards for a prescription drug product.” In the body of its report, AMA further clarified its position:
The future of cannabinoid-based medicine lies in the rapidly evolving field of botanical drug substance development, as well as the design of molecules that target various aspects of the endocannabinoid system. To the extent that rescheduling marijuana out of Schedule I will benefit this effort, such a move can be supported.3
The term “botanical drug substance” is derived from an FDA guidance document: “Guidance for Industry: Botanical Drug Products.”4 It refers, not to herbal plant material, but to extracts or similar preparations of the active botanical components. Rather than accepting that marijuana meets the “current, modern accepted standard for what constitute medicine,” the AMA is essentially stating that research into crude marijuana plant material is a dead end.
Rescheduling is not necessary to make marijuana products available for research
A committee of the California Medical Association recently called for the rescheduling of marijuana “so it can be tested and regulated.” However, it is not necessary for marijuana to be rescheduled in order for legitimate research to proceed. Schedule I status does not prevent a product from being tested and researched for potential medical use. The FDA (and its Controlled Substances Staff or CSS) will allow an investigational product containing a controlled substance (including Schedule I substances) to be tested in clinical (human) trials if there is adequate evidence of safety from non-human studies.5 The CSA imposes stringent security, record keeping, and other requirements, but these apply equally to Schedule I and Schedule II substances.
Under the CSA, the only differences between Schedule I and II are rather technical:6 Before granting a Schedule I research registration, the DEA will separately inquire whether the FDA believes that the researcher is qualified and competent and the trial design will elicit scientifically valid data.7 A Schedule I research registration must be renewed each year, whereas research registrations for other controlled substances are valid for 3 years. Schedule I research registrations are protocol, as well as substance, specific. By contrast, a Schedule II registration is valid for research into all Schedule II substances and protocols. Physicians, if they possess registrations to prescribe and administer products containing controlled substances, may conduct research (if permitted by the FDA and the relevant ethics committee) on any Schedule II substance; they need not obtain a separate research registration from DEA.
These additional Schedule I restrictions can delay a research program but are not insurmountable. Furthermore, it may be possible to make minor amendments to the CSA to “equalize” Schedule I and Schedule II research requirements without necessitating a rescheduling of marijuana. Now that would be an interesting thing for governors and the CMA to call for, but apparently neither seemed bothered enough to do the homework required to make such an argument.
Today, Schedule I research certainly does go forward. In a recent pharmaceutical company-sponsored human clinical study investigating a product derived from marijuana extracts, the DEA registered approximately 30 research sites in the U.S. and also registered an importer to bring the product into the U.S. from the U.K., where it was manufactured (this is for a drug called, Sativex, which combines two of marijuana’s active ingredients). What other research projects are happening? That will be the subject of a soon-to-be released report I am working on – stay tuned.
We should also mention the marijuana-based medications already on the market today. Dronabinol (Marinol ®) and Nabilone (Cesamet ®) are concentrated, synthetic versions of the most active ingredient in marijuana – THC – taken as a pill. They are in Schedule III and Schedule II, respectively, and they have been shown to be effective in the treatment of nausea and vomiting caused by chemotherapy in people who have already taken other medications without good results. These have undergone FDA’s process and are completely legal under the Controlled Substances Act.
By contrast to the careful and detailed structure of the Controlled Substances Act, the governors’ petition offers no criteria or guidelines that would clearly identify the scope of legitimate “medical use.” The CMA report also misstates the facts. At present in California, and several other states, it is widely recognized that the concept of “medical use” of marijuana is highly questionable. For payment of a small cash sum, almost anyone can obtain a physician’s “recommendation” to purchase, possess, and use marijuana for alleged medical purposes. Indeed, numerous studies have shown that the most customers of these dispensaries do not suffer from chronic, debilitating conditions such as HIV/AIDS or cancer and are instead otherwise healthy individuals.8,9 Both sides of the argument agree that this system has essentially legalized marijuana for recreational use, at least amongst those individuals able and willing to buy a recommendation.10 The governor’s petition would potentially expand that system on a national scale, permitting any physician in any state to prescribe any form of marijuana for any medical condition. The CMA call, while a great way to generate publicity on legalization, is also predicated on a false assertion that the only way to do research into marijuana is to legalize the drug. Sadly, vociferous calls for rescheduling and legalizing like these simply further muddle and confuse an already highly charged debate.
Kevin A. Sabet, PhD, Policy Consultant and Assistant Professor, University of Florida, College of Medicine, Division of Addiction Medicine, Department of Psychiatry. To read more from Dr. Sabet, visit www.kevinsabet.com or follow him on Twitter@kevinsabet.
Gov. Jack Markell has suspended the regulation-writing and licensing process for medical marijuana dispensaries — effectively killing the program — and criticized the federal government for sending mixed signals on law enforcement, The News Journal has learned.
U.S. Attorney Charles M. Oberly III has adopted the hard-line stance that just came out of President Barack Obama’s Department of Justice. This stance accentuates the inherent conflict between federal marijuana laws and what is playing out in states that have authorized limited marijuana use for medicinal purposes.
“[G]rowing, distributing and possessing marijuana, in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities,” Oberly wrote Thursday to Markell’s attorney. “Moreover, those who engage in financial transactions involving the proceeds of such activities may also be in violation of federal money laundering statutes.”
Markell’s office told The News Journal on Friday that Oberly’s stance prevents the Department of Health and Social Services from issuing licenses to medical marijuana dispensaries, whose employees and owners may be subject to federal raids and prosecution.
The governor’s office recently sought guidance from Oberly on whether state employees responsible for regulating and inspecting licensed, not-for-profit medical marijuana dispensaries could do their jobs without fear of prosecution.
“State employees who conduct activities mandated by the Delaware Medical Marijuana Act are not immune from liability under” the Controlled Substances Act, Oberly wrote.
In a statement Friday, the Democratic governor said he had no choice but to stop the program.
“To do otherwise would put our state employees in legal jeopardy, and I will not do that,” Markell said.
With the federal government firmly against large-scale dispensaries, state legislators may need to consider amending the law to allow doctor-approved patients to grow their own pot at home, said Rep. Helene Keeley, D-Wilmington South.
“Maybe we have to tweak the current law to make this happen,” Keeley said. “We can’t give up.”
Oberly’s letter is evidence of the U.S. Department of Justice’s changing attitude toward state medical marijuana laws since Obama took office.
During his campaign for president in 2008, medical marijuana advocates were encouraged by Obama’s vow to respect state laws. Oberly, a Democrat and former attorney general, is an Obama appointee.
“I think it’s a great betrayal of what he said when he was running for office,” said Karen O’Keefe, director of state policies at the Marijuana Policy Project, a Washington, D.C.-based lobbying group that helped write Delaware’s law. “It’s been a great disappointment.”
In 2009, when the first version of a medical marijuana bill was introduced in the Delaware General Assembly, a key impetus for the debate was the newly elected Obama’s pledge not to send his Department of Justice after those involved in state-sanctioned medical marijuana operations.
That policy was codified in an October 2009 memo written by then-Deputy Attorney General David Ogden that said prosecutions of medical marijuana patients and caregivers was “unlikely to be an efficient use of limited federal resources.”
With the Ogden memo as its backdrop, Delaware’s legislative effort continued, culminating with the passage of the Medical Marijuana Act last May.
A month later, new Deputy Attorney General James M. Cole issued a memo with a different tone in response to inquiries from a group of federal prosecutors nationwide.
Drawing a corollary from the Ogden memo, Cole said patients and their caregivers were still safe from enforcement action but prosecutors were never meant to ignore “large-scale, privately owned industrial marijuana cultivation centers” like those authorized in some states.
In the months after the Cole memo, federal law enforcement agencies raided growers and dispensaries in California and Montana.
A U.S. attorney in northern California sent a letter to local public officials, warning them to quell their efforts to regulate and license marijuana growers or face criminal charges.
In January, prosecutors in Colorado mailed letters to two dozen medical marijuana dispensaries located within 1,000 feet of schools, notifying them of enhanced federal penalties for drug offenses committed near schools.
Since Delaware’s passage of its medical marijuana law, the state Division of Public Health has been studying similar laws in other states and writing regulations that officials expected to publish this spring. Markell’s recommended budget for the next fiscal year includes $480,000 for the implementation of the program, funded by proceeds from licensing dispensaries and patients.
Spurred by the Cole memo and the recent enforcement efforts, Markell’s legal counsel, Michael A. Barlow, sought Oberly’s guidance on the state’s Medical Marijuana Act in early December.
“It was our goal to exercise some caution before we move forward, to make sure we have some dialogue with federal prosecutors in Delaware and solicit their input,” Barlow said.
Specifically, Barlow said, the administration is concerned that the medical marijuana distribution plan outlined in Delaware’s law falls under the parameters outlined in the Cole memo.
The statute mandates the establishment of one marijuana dispensary — called a Compassionate Care Center — in each of the three counties, with the possibility of more centers in future years.
Operators of the centers are to be nonprofit entities selected via a competitive bidding process administered by the state’s Division of Public Health, and would be responsible for cultivating, preparing and distributing the marijuana in cooperation with state regulators and under tight state control.
“If you look at the Cole memo, it focuses on this large-scale, industrial distribution model, and what we have in Delaware is a distribution model that centralizes that into one place,” Barlow said. “It seems to be something the Cole memo is looking to specifically.”
The administration was also worried that Delaware’s medical marijuana distribution structure could put state employees in danger of federal prosecution because of their close work with the dispensaries.
“The governor’s concern is that we’re not doing things to put state employees potentially in the way of the federal government’s new enforcement,” Barlow said.
In his response to Barlow, Oberly reaffirmed the Cole corollary to the Ogden memo and said the DOJ will not target patients or caregivers, but distribution is to be treated differently.
“Enterprises engaged in the cultivation, manufacture and sale of marijuana directly violate federal law,” he wrote. “Individuals and organizations that participate in the unlawful cultivation and distribution of marijuana could be subject to civil and criminal penalties.”
Oberly also said state workers are fair game for prosecution, just like anyone who is part of a marijuana distribution operation.
Prosecution decisions would made on a case-by-case basis, Oberly said.
The compassion centers were the linchpin of the medical marijuana bill’s getting bipartisan support in the Delaware General Assembly, Keeley said.
“In the absence of such compassion centers, patients may be forced to obtain marijuana illicitly, unlawfully grow their own marijuana or forgo use of medical marijuana entirely,” Barlow wrote Friday in response Oberly’s Thursday letter. “That appears to be the unfortunate consequence of a federal policy that appears to offer mercy to cancer patients and others with a serious medical need for marijuana, but actually threatens criminal and civil sanctions for those who might help them safely obtain that relief.”
Marijuana is a topic of significant public discourse in the United States, and while many are familiar with the discussions, it is not always easy to find the latest, research-based information on marijuana to answer to the common questions about its health effects, or the differences between Federal and state laws concerning the drug. Confusing messages being presented by popular culture, media, proponents of “medical” marijuana, and political campaigns to legalize all marijuana use perpetuate the false notion that marijuana is harmless. This significantly diminishes efforts to keep our young people drug free and hampers the struggle of those recovering from addiction.
The Administration steadfastly opposes legalization of marijuana and other drugs because legalization would increase the availability and use of illicit drugs, and pose significant health and safety risks to all Americans, particularly young people.
This Web-based resource center provides the general public, community leaders, and other interested people with the facts, knowledge, and tools to better understand and address marijuana in their communities.
This resource center will be regularly updated and expanded to address emerging issues, research, and prevention tools, and highlight successful local efforts to reduce marijuana use.
Visit Resource Center http://www.whitehouse.gov/ondcp/marijuanainfo
It is important to recognize that these state marijuana laws do not change the fact that using marijuana continues to be an offense under Federal law. Nor do these state laws change the criteria or process for approval of safe and effective medications, including marijuana.
Many of these state laws began in order to create a legal defense to state criminal possession laws or to remove state criminal penalties for purported medical use of marijuana. Since then, many have evolved into state authorization for state-based production and distribution of marijuana for purported medical purposes. These state laws vary greatly in their criteria and implementation, and many states are experiencing vigorous internal debates about the safety, efficacy, and legality of their marijuana laws. Many local governments are even creating zoning and enforcement ordinances that prevent marijuana dispensaries from operating in their communities.
There are critical differences in marijuana laws from one state, county or city to another. For more information, see the chart, excerpted from information from the National Conference of State Legislatures (NCSL).
“Individuals applying to join the active duty Army, the Army Reserves, and Army National Guard are given a drug test as part of their medical physical at the Military Entrance Processing Station (MEPS). Individuals who test positive for marijuana, alcohol, or cocaine may still enlist (with a waiver), if they pass a re-test after a specified waiting period.
Waiting periods are required under the following circumstances: Positive for marijuana and alcohol
- If applicant’s first test is positive, he/she must wait 45 days for retest. (Recruiting battalion commander is the waiver approval authority.)
- If applicant’s second test is positive, he/she must wait 1 year for a retest. (The Commanding General, HQ Army Recruiting Command is the waiver approval authority.) •If applicant’s third test is positive, he/she is permanently disqualified. Positive for cocaine •If applicant’s first test is positive, he/she must wait 1 year for a retest. (Recruiting battalion commander is the approval authority.)
- If applicant’s second test is positive, he/she is permanently disqualified. Positive for drugs other than marijuana, alcohol, or cocaine
- If applicant’s first test is positive, he/she is permanently disqualified. Prior service personnel
- Prior service personnel who test positive at MEPS for any illegal drug or alcohol are permanently disqualified. All applicants who test positive will be required to have police records check accomplished as part of the waiver process regardless of any admission or record of civil offenses.
- Applicants with an approved drug alcohol test waiver are prohibited from enlisting in any MOS or option that requires a security clearance.”
Read the article http://usmilitary.about.com/od/armyjoin/a/drugtestpos.htm
Facts of the Case
In 1996 California voters passed the Compassionate Use Act, legalizing marijuana for medical use. California’s law conflicted with the federal Controlled Substances Act (CSA), which banned possession of marijuana. After the Drug Enforcement Administration (DEA) seized doctor-prescribed marijuana from a patient’s home, a group of medical marijuana users sued the DEA and U.S. Attorney General John Ashcroft in federal district court.
The medical marijuana users argued the Controlled Substances Act – which Congress passed using its constitutional power to regulate interstate commerce – exceeded Congress’ commerce clause power. The district court ruled against the group. The Ninth Circuit Court of Appeals reversed and ruled the CSA unconstitutional as it applied to intrastate (within a state) medical marijuana use. Relying on two U.S. Supreme Court decisions that narrowed Congress’ commerce clause power – U.S. v. Lopez (1995) and U.S. v. Morrison (2000) – the Ninth Circuit ruled using medical marijuana did not “substantially affect” interstate commerce and therefore could not be regulated by Congress.
Does the Controlled Substances Act (21 U.S.C. 801) exceed Congress’ power under the commerce clause as applied to the intrastate cultivation and possession of marijuana for medical use?
Does the Controlled Substances Act (21 U.S.C. 801) exceed Congress’ power under the commerce clause as applied to the intrastate cultivation and possession of marijuana for medical use?
The majority argued that Congress could ban local marijuana use because it was part of such a “class of activities”: the national marijuana market. Local use affected supply and demand in the national marijuana market, making the regulation of intrastate use “essential” to regulating the drug’s national market.
The Safe Drinking Water and Toxic Enforcement Act of 1986. requires that the Governor cause to be published a list of those chemicals “known to the state” to cause cancer or reproductive toxicity. The Act specifies that “a chemical is known to the state to cause cancer or reproductive toxicity … if in the opinion of the state’s qualified experts the chemical has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity.”
The lead agency for implementing Proposition 65 is the Office of Environmental Health Hazard Assessment (OEHHA) of the California Environmental Protection Agency. The “state’s qualified experts” regarding findings of carcinogenicity are identified as the members of the Carcinogen Identification Committee of the OEHHA Science Advisory Board.
OEHHA announced the selection of marijuana smoke as a chemical for consideration for listing by the CIC in the California Regulatory Notice Register on December 12, 2007, subsequent to consultation with the Committee at their November 19, 2007 meeting. At that meeting, the Committee advised OEHHA to prepare hazard identification materials for marijuana smoke.
At their May 29, 2009 meeting the Committee, by a vote of five in favor and one against, found that marijuana smoke had been “clearly shown through scientifically valid testing according to generally accepted principles to cause cancer.”
Read the full report Marijuana Smoke and Cancer
Nullification generally is considered to take one of two forms. The first is where a State acts within the system, whether through a court challenge, or through concentrated series of efforts designed to repeal or amend offending legislative provisions. The second form is most simply described as outright defiance of the law; in other words, a State simply would ignore a federal provision, or a decision of a federal court.
Nullification, If Meant As A Term Through Which Offending Legislation or Judicial Decisions Are Overturned By Working Within The Existent Constitutional And Legal Framework, Is Permissible And Encouraged By Our System of Checks and Balances.
Idaho has historically participated in a number of these efforts including the current challenge to the Healthcare Reform Law, as well as various resolutions addressed to the Federal Government with respect to the state sovereignty and specific federal legislative enactments. (See HeR 64, 44,and SJM 106 (2010)). These examples reflect how a State can work within the constitutionally designed system to overturn or amend a provision that offends a State’s notion of sovereignty and federal overreaching.
Nullification As Defiance Of Federal Law Or Enactment Is Inconsistent With A State Officer’s Duty To Act In Conformity With The Federal And State Constitutions.
Nullification is generally the argument that States have the ability to determine the constitutionality of a federal enactment, and if a State finds the enactment unconstitutional it can ignore or otherwise refuse to adhere to the federal requirements.
The basis for this argument is that the States came together to create the federal government, and therefore the States retain the ultimate discretion as to the reach of federal authority.! The adoption of these Resolutions in some respects represents the apex of the ongoing argument between Alexander Hamilton and Thomas Jefferson over the scope and influence of the fledgling federal government.
These arguments arose cyclically throughout the Nation’s early history, reaching a virtual breaking point in 1828-1833 in what was referred to as the “Nullification Crisis.” President Andrew Jackson expressly rejected the theory of nullification as incompatible with the existence of the Union and destructive to the very purpose of the the Constitution. Southern State nullification advocates nevertheless continued to press their cause, and their arguments formed a central justification for the Civil War.
The Legal Difficulty Of Idaho’s Nullification Claim.
As an historical matter, many of the original States came into existence first as English colonies and then as sovereign parties to the Articles of Confederation. Idaho’s road to state status followed a much different path.
Virtually all land within Idaho is the result of the United States making a claim to the land, which was disputed by the British until the adoption of several treaties leading ultimately to the creation of the Oregon Territory. Congress then created the Territory of Idaho and, ultimately, the State of Idaho. Once Idaho was admitted as a State, it acquired all of the privileges and immunities held by each of the other States, but as reflected above, the right of nullification, the right of secession, and the compact theory had all been rejected by the United States by the time of statehood.
The framers of the Idaho Constitution were acutely aware of that fact. Hamilton actually suggested sending the Army into Virginia as a pretext-thus even the earliest arguments for nullification were viewed as latent arguments for civil war. See also Jonathon Elliot, “Answers of the Several State Legislatures: “State of New Hampshire” Debates in the Several State Conventions on the Adoption of the Federal Constitution, pp. 538-539. (1907).
Jackson also expressly rejected the right to secede, noting that the Constitution forms a government, not a league of States. President Jackson’s Proclamation Regarding Nullification, December 10, 1832.
Joint British and United States Claim was provided for in Treaty of 1818. The Oregon Treaty (1846) established the boundary between United States claims and British Claims at the 49th Parallel. The territory of Oregon was created on August 14, 1848. The territory of Idaho was created on March 4,1863. Reviewing the Idaho Admission Bill, § 19 specifically applies the laws of the United States.
State inseparable part of the Union.
The State of Idaho is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land.
The framers therefore expressly recognized Idaho’s status as a part of the United States and the supremacy of the United States Constitution. Consistent with this recognition, every legislator is required to affirm “that I will support the constitution of the United States and the constitution of the State of Idaho. Legislators and other state officials, in other words, pledge to carry out their duties in a fashion that directly conflicts with the second form of the nullification theory.
The alpha and omega of the nullification theory, in sum, rest upon rejecting the principle that the United States Constitution as the supreme law of the land. The theory runs contrary to the very purpose of the federal constitution and Idaho’s express constitutional acknowledgment in Article I, § 3 of that supremacy.
Courts Have Expressly Rejected Nullification
Our history is replete with federal enactments that were unpopular in one State or another, or even within regions. Taking the logic of the nullification theory to its natural extension, federal law would become a patchwork of regulation depending upon which States chose to comply. It is hardly surprising, given this specter, that no court has ever upheld a State effort to nullify a federal law.
The most instructive case on nullification is likely Cooper v. Aaron. This case arose out of a belief by the State of Arkansas that it was not bound to follow the Supreme Court’s decision in Brown v. Board of Education. 9 Arkansas, through its governor and legislature, claimed that there is no duty on the part of state official to obey federal court orders based upon the Court’s interpretation of the federal constitution.
The governor and the legislature, in practical effect, were advancing the theory that the States were the ultimate arbiters of the constitutionality of federal enactments and decisions.
The Court expressly rejected this argument stating: “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The Court went further: A governor who asserts power to nullify a federal court manifests that the fiat of a state governor, and not the Constitution of the United States, would be the supreme law of the land.
There is no right to pick and choose which federal laws a State will follow. Aside from ignoring the Supremacy Clause in Article VI, Clause 2 of the United States Constitution, that contention cannot be reconciled with Article I, § 3 of the Idaho Constitution or the oath of office prescribed in Article III, § 25. I hope this brief analysis responds adequately to your inquiry.
Assistant Chief Deputy
Read the full letter: Idaho AG Letter 20110121
As Colorado’s Attorney General I take an oath to uphold the U.S. Constitution and the Colorado Constitution. As part of this job, I frequently urge upon the state and federal courts a particular interpretation of these constitutional documents.
But the final word on the meaning of the U.S. Constitution is the U.S. Supreme Court and the final word on the meaning of the Colorado Constitution is the Colorado Supreme Court.
In a dispute on whether federal laws trump state laws under the Supremacy Clause, the U.S. Supreme Court has the final say.
In Gonzales v. Raich [case], the U.S. Supreme Court held that even when marijuana is grown, distributed and consumed within a single state, it does affect interstate commerce and is therefore subject to federal regulation. While you or I may find this decision by a majority that included Justice Antonin Scalia to be “judicial activism,” it is nonetheless the law of the land. In Florida v. U.S. Department of Health and Human Services, scheduled to be heard by the U.S. Supreme Court in March, the federal government is citing Gonzales v. Raich and other similar cases to argue that the Commerce Clause allows it to require every American to buy health insurance or face an economic sanction.
My fellow attorneys general and I have successfully argued in a U.S. District Court and the in 11th Circuit Court of Appeals that one’s failure to buy a particular product or service at the federal government’s direction is economic inactivity (unlike growing and selling a crop) and therefore not subject to congressional regulation under the Commerce Clause.
We argue that if the federal government is able to regulate your economic decision making in such a manner, federalism is essentially dead. Rather than having limited enumerated powers under Article I, Section 8, the federal government would have largely unbridled power in all areas not addressed in the Bill of Rights.
But make no mistake about it: If the U.S. Supreme Court should determine that the individual health insurance mandate is a proper exercise of the commerce power by Congress, that will be the law of the land and Americans will be left to pursue political remedies as opposed to legal ones.
Such is the rule of law in America. Because of the rule of law, until a change of policy by Congress, medical marijuana remains in violation of federal law. The state attorney general cannot change that.
Cannabis use significantly increases the risk for incident psychotic symptoms in individuals with no prior history of psychotic experiences.
In persons with evidence of psychosis, cannabis use increases the persistence of these symptoms, according to researchers from the University of Maastricht in The Netherlands, who have done much of the existing work in the area of cannabis and psychosis.
It has been known for many years that persons with schizophrenia or other psychotic illness use more cannabis than the general population, and other work has shown that individuals using cannabis during adolescence and early adulthood have a higher risk of developing psychotic symptoms. It remains unclear, however, whether the association between cannabis and psychosis is causal or whether an underlying genetic predisposition for psychosis may prompt cannabis use as a way of self-medication. A second issue is whether cannabis impacts on persistence rates of psychosis and which biological mechanisms may underlie this process.
Read more Cannabis use Increases Psychosis Risk.
The LA District Attorney provided the following point as to the unworkability of the proposed Regulate, Control and Tax cannabis Act:
- Ceding authority to local government is unworkable
- Cultivation provisions are ambiguous and unfairly limit rights of property owners
- Discrimination provision prevent safe employment and violates federal laws and federal mandates
- Result in uncertainty regarding existing marijuana statutes
- Unduly burdens local government and local law enforcement
Read the report in full LA District Attorney Full Brief.
AB 390, a bill to legalize marijuana in California, has gone up in smoke at the State Capitol.
Children need to grow up in safe neighborhoods and attend schools free of marijuana users and sellers. We need to continue to protect our youth from the dangers of drugs. That starts with stopping the proliferation of pot.
The demise of this disastrous California bill goes to show that our voice was heard at the State Capitol and legislators on both sides of the aisle agreed we don’t want a proliferation of WEED in our streets and communities…our churches…parks and schools.
Legalizing marijuana is bad public policy and most of the legislators know it. In my opinion, once the public wakes up and understands the dangers of legalizing marijuana, legislators voting to legalize may find themselves on the wrong side of public opinion. A lot of voters are going to let their representatives know they will not stand for legalizing such a dangerous drug.
Marijuana is a dangerous and destructive drug…and we must not rest until the pro-legalizers are defeated once and for all.
To think some California lawmakers would resort to legalizing the sale and manufacture of drugs to generate tax revenue in which to balance our state budget is an outrage!
There are many ways to get the economy moving again. Putting a flood of mind altering drugs on the streets and then taxing their sales is not one of them.
It doesn’t make sense for our legislators to ban cigarette usage in public places because it is harmful to health, while at the same time saying “yes” to marijuana smoke, which is also carcinogenic.
California lawmakers recently banned trans fat because it is harmful to health. And now they want to make marijuana legal because it’s supposedly good for consumption in certain cases?
If we say marijuana is okay for adults…then what message do do send our children? That it’s okay for them too?
How do we expect our youth to say “No!” to drugs when the adults are saying “yes.”
Why would our public policymakers legalize marijuana, tax it and then go back and use that same money AND MORE for drug prevention programs to convince kids to not smoke dope. It’s bad public policy. It doesn’t make sense.
Taxing marijuana is “blood money” plain and simple. And California lawmakers would have blood on their hands if they voted to legalize this dangerous drug.
Pot should never be legal for general use in California. It’s bad for health, it’s bad for our communities, it’s bad for kids and it’s bad for our brains.
California will go down a dangerous path for which there will be no turning back if voters legalize marijuana. To think people will smoke pot while driving on our roads, visiting our parks, walking in our neighborhoods, sitting in their backyards (with the odor wafting over our fences) and passing near our schools. It is a disaster waiting to happen of enormous consequences. Has anyone given any thought to this?
Rogue legislators like Tom Ammiano want to legalize marijuana because they say it will be a windfall for the economy. Many others think it would actually be a drain on the state budget and the root cause of many job losses due to absenteeism and lost productivity.
There is no guarantee that legalization would undercut the black market, especially if the drug is taxed. Drug pushers would simply sell it “tax free.”
Legalizers think the revenue from a new marijuana tax will solve California’s budget woes, but AB 390 specifically states that people can grow their own weed, which many will do. How do you tax that?
Where will we get the money to pay for a new watchdog agency to regulate the drug? And will employees of this same agency be allowed to smoke it during their work breaks since it will be legal?
AB 390 to legalize marijuana was passed in the California Assembly Public Safety Committee (Tom Ammiano’s committee) on January 12, 2010. Increase the use of drugs, and our public will be safer? Was there another motive?
President Obama was right to declare he wants to usher in a new era of responsibility; and that includes ensuring marijuana remains classified as an illegal drug. There’s no excuse for legalizing another harmful drug known kill through the inducements of carcinogens and mental instability.
Because marijuana is illegal at the federal level, one can imagine California becoming a favored destination for drug buyers – and an exporter of drug dealers.
The “legalizers” will argue we are overcrowding our prisons with people arrested for simple possession of marijuana. The truth is: no one ever stays in jail for more than a day just for possessing it. Anyone that is in jail or prison for marijuana either:
- Also had a role in distribution; or,
- Pled down to possession in exchange for information; or,
- Violated terms of parole/probation, and their original crime was much more serious
Legalizers say: “If marijuana is legalized we can tax it and bring in much needed revenue to our state.”
- In 2005, the State of California spent $19.9 billion dollars on substance abuse and addiction or $545.09 per capita on alcohol and tobacco. But, the State of California collected $1.4 billion dollars of tax revenue or $38.69 per capita on the sale of alcohol and tobacco products. The costs far exceeded the revenue, and marijuana would likely follow a similar trend.
- The tax revenue does not account for the additional public health concerns and costs, such as cancer risks due to smoke inhalation or increased mental illness due to prolonged use.
Legalizers say: “People with medical issues should be able to smoke marijuana to relieve pain or other debilitating symptoms.”
- There is likely medical benefit from components in the cannabis plant. This is very different than legalizing smoked marijuana.
- Medicine should never be determined by voters.
- The general public does not have the knowledge necessary to vote on whether a particular pill or patch is beneficial for the treatment of heart disease, attention deficit disorder, or diabetes. Why is this different?
- The 1999 IOM report said that smoked marijuana should generally not be recommended for medical use; we don’t “smoke” medicine.
Legalizers say: “Marijuana toxicity has never killed anyone.”
- Marijuana contributes to dependence, mental illness, lung obstruction, lung cancer, memory loss, motor skill disruption and other harms in a way that tobacco does not, and its harms are underappreciated.
- ER admissions for marijuana-related illness (psychotic episodes, etc.) exceed those of heroin.
- There have been numerous cases of fatal car and other accidents caused by someone under the influence of marijuana.
Smoked marijuana is not medicine. Pot smoke contains more carcinogens than cigarette smoke and is simply not healthy for you. The U.S. Food and Drug Administration routinely tests new drugs according to a rigorous protocol to prove their safety before they are allowed to be sold to the public as medicine. Marijuana has passed no such test.
Legalization will increase drug use and health care costs. Marijuana is an addictive drug that poses significant health consequences to its users. Recent studies have linked marijuana use to birth defects, respiratory system damage, cancer, mental illness, violence, infertility, and immune system damage.
The latest information from the U.S. Treatment Episode Data Set reports that 16.1% of drug treatment admissions were for marijuana as the primary drug of abuse, compared to 6% in 1992.
Legalization will increase crime-related costs. 75% of children in foster care are placed there because of a parent’s substance abuse. Sexual assault is frequently facilitated by substance use – some experts put the number at over 60%. The U.S. Department of Justice found that 61% of domestic violence offenders also have substance abuse problems.
All forms of marijuana are mind-altering (psychoactive). In other words, they change how the brain works. A lot of other chemicals are found in marijuana, too — about 400 of them, some of which are carcinogenic. Marijuana is addictive with more teens in treatment with a primary diagnosis of marijuana dependence than for all other illicit drugs combined.
Long-term marijuana abuse can lead to addiction; Long-term marijuana abusers trying to quit report irritability, sleeplessness, decreased appetite, anxiety, and drug craving, all of which make it difficult to quit.
Numerous studies have shown marijuana smoke to contain carcinogens and to be an irritant to the lungs. In fact, marijuana smoke contains 50–70 percent more carcinogenic hydrocarbons than does tobacco smoke. Marijuana users usually inhale more deeply and hold their breath longer than tobacco smokers do, which further increase the lungs’ exposure to carcinogenic smoke.
Driving experiments show that marijuana affects a wide range of skills needed for safe driving — thinking and reflexes are slowed, making it hard for drivers to respond to sudden, unexpected events. Also, a driver’s ability to “track” (stay in lane) through curves, to brake quickly, and to maintain speed and the proper distance between cars is affected. Research shows that these skills are impaired for at least 4-6 hours after smoking a single marijuana cigarette, long after the “high” is gone. Marijuana presents a definite danger on the road.
Emergency Room admissions for marijuana-related illness (psychotic episodes, etc.) exceed those of heroin.
The United Nations Office on Drugs and Crime (UNODC) is a global leader in the fight against illicit drugs and international crime and is organized to assist members in their struggle against illicit drugs, crime and terrorism.
The three pillars of the UNODC projects include:
- Field-based technical cooperation projects to enhance capacity to counter-act illicit drugs, crime and terrorism.
- Research and analytical work to incease the knowledge and undestanding of drug sna crime issues and expand evidenced-based policy and operational decisions.
- Implementation of international treaties, development of domestic legislationon illicit drugs, crime and terrorism, and provision of services toward those ends.
Arguments Against Legalization
In January 2009, UNODC published a landmark report in support of the International Narcotics Control Board (INCB) which governs how UN Conventions approach enforcement. This report assesses the issues for an against drug legalization and comes out in support of the INCB stance against legalization based on:
- legal sanction have detered or delayed potential abusers thereby limiting growth the illicit market,
- subtantial drug consumption resulting from inceased availability and competive pricing would increae economic and social costs, particularly health care services and accident-related injuries,
- Organized crime would adapt efforts to maintain or increase their income independent of the legal status of certain drugs.
The report goes on to say that marijuana legalization would:
- increase use rates particularly youth age groups.
- today is much more powerful than in the 1960’s and leads to use of other drugs with destructive health consequences.
- result in higher addiction rates due to inceaed THC content in marijuana today.
- increase birth defects, respiratory system damage, has links to cancer, AIDS, imuume system damage and infertility.
Read the report in full 2009 UN Drug Conventions Argument Against Legaliztion.
On September 21, 2011, the United States Bureau of Alcohol, Tobacco and Firearms (ATF) sent an open letter to the nation’s licensed firearms dealers warning that federal law prohibits drug users and addicts from possessing or buying guns.
According to Assistant ATF Director Arthur Hebert, “any person who uses or is addicted to marijuana, regardless of whether his or her state has passed authorizing marijuana use for medicinal purposes, is an unlawful user” and cannot own, possess, or buy firearms.
Today a full 16 percent of the U.S. population is dependent on alcohol, nicotine or other drugs. Another 27 percent of the general population engages in use of these substances in ways that put themselves and others at risk, including underage and adult excessive drinking, tobacco use, and misuse of pain relievers, stimulants and depressants. For a staggering 43 percent of the nation, then — nearly every other American — addiction and risky substance use are a matter of public health.
Addiction is America’s number one health care and health cost problem. Approximately 30 percent of our federal and state health care spending is attributable to this disease. Across all government spending, the total financial cost is nearly $500 billion annually.
The extent of human misery is incalculable.
Cannabis is a plant (“botanical”) known popularly as “marijuana”.
Federal law classifies cannabis as a Schedule I drug meaning it has no accepted medical use and a high potential for abuse and therefore cannot be prescribed by physician for any use outside of research settings — it is “illegal” to prescribe.
Cannabis use has also been associated with several health risks including addiction, memory loss and slower reaction time, psychotic disorders, and reproductive risks.
Cannabis acquired in California today is unregulated. Both medical and recreational cannabis have no mandatory labeling standards of concentration or purity (harmful pesticides or herbicides present).
Legalization vs. Decriminalization
The legalization of cannabis is a continuing source of debate at both the national and state levels. Legalizing cannabis consists of allowing for the cultivation, sale, and use of the substance.
Decriminalization of cannabis may consist of a range of activities such as reducing penalties for cannabis-related offenses.
Congress made cannabis use illegal when it enacted the Controlled Substances Act in 1970 (U.S.C. § 811). Under federal law, cannabis is currently classified in statute as a Schedule I drug, along with drugs such as heroin, LSD and peyote.
The Controlled Substances Act holds that it is illegal for anyone to knowingly or intentionally possess a Schedule I substance because substances classified under this schedule are deemed to have high potential for abuse, no currently accepted medical use in treatment, and a lack of accepted safety for use of the drug under medical supervision. Therefore, the intended use of cannabis, whether medical or recreational, is irrelevant under the Controlled Substances Act.
On June 6, 2005, the United States Supreme Court ruled that the federal Controlled Substances Act is valid even as applied to intrastate, noncommercial cultivation, possession and use of cannabis for personal medical use on the advice of a physician.
The Court’s ruling maintains the existing federal prohibition against possession, cultivation, and distribution of cannabis.
Federal law establishes a clear prohibition against knowingly or intentionally distributing, dispensing, or possessing cannabis (U.S.C. § 841-44). A person who aids and abets another in violating federal law, (U.S.C. § 2), or engages in a conspiracy to purchase, cultivate, or possess cannabis, (U.S.C. § 846), can be punished to the same extent as the individual who actually commits the crime.
The penalty for a first-time violation of these provisions in the case of less than 50 kilograms of cannabis is imprisonment for a term of up to five years, a fine of up to $250,000, or both. The penalty for a violation committed after a prior drug conviction is imprisonment for a term of up to ten years, a fine of $500,000, or both (U.S.C. § 841(b)(1)(D)).
If a physician were to aid and abet or conspire in a violation of federal law, the federal government might revoke the physician’s Drug Enforcement Agency (DEA) registration through an administrative procedure.
A felony conviction of a physician relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance results in mandatory exclusion from the Medicare and Medi-Cal programs (42 U.S.C. § 1320a-7(a)(4)).
On November 5, 1996, the people of California approved Proposition 215, which decriminalized the cultivation and use of cannabis by seriously ill individuals upon obtaining a physician’s recommendation (Health & Safety Code § 11362.5).
Proposition 215 was enacted to “ensure that seriously ill Californians have the right to obtain and use marijuana” and to “ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction” (Health & Safety Code § 11362.5(b)(1)(A)-(B)).
In order to further clarify Proposition 215, the Medical Marijuana Program Act (MMP) was enacted on January 1, 2004 (Health & Safety Code §§ 11362.7-11362.83).
The MMP enacted an identification card program to achieve greater consistency in the application and enforcement of the original initiative. The MMP also clarified that a primary caregiver may be paid a “reasonable compensation” for services provided to a qualified patient “to enable that person to use marijuana” and that patients and primary caregivers may “cooperatively” and “collectively” cultivate.
The MMP requires the California Department of Public Health to maintain a program for the voluntary registration of qualified medical cannabis patients and their primary caregivers through a statewide identification card system. The voluntary registration program is administered through a patient’s county of residence, where the eligible patient submits an application and provides medical records containing written documentation by the attending physician stating that the patient has been diagnosed with a qualifying medical condition and that the physician recommends the use of cannabis for medical purposes.
Further decriminalization was enacted on September 30, 2010 when Health & Safety Code § 11357 was signed into law. Effective January 1, 2011, this statute makes possession of less than one ounce of cannabis a civil infraction rather than a criminal misdemeanor as it had previously been categorized.
The California Medical Association Council on Scientific and Clinical Affairs (CSA) has opined that the literature on this subject is inadequate, cannabis dosage is not well standardized, and cannabis side effects may not be tolerated.
Dosage is not currently well-standardized and limited medical benefits have been established with the available research. Currently, California law only allows patients with a physician recommendation for medical cannabis to cultivate or use the substance.
Risks of Cannabis Use
The literature identifies several personal health risks, both short and long-term, associated with cannabis use.
According to the National Institute on Drug Abuse (NIDA), cannabis use can result in distorted perceptions, impaired coordination, difficulty thinking and problem solving, and problems with learning and memory.
These effects can last for days or weeks and may result in long-term personal health problems such as addiction, anxiety, depression, psychosis, respiratory problems, and heart attack.
Data from a national [disease] study indicates that about nine percent of adult cannabis users become addicted and that this risk is substantially increased among individuals who begin using before age eighteen.
Further evidence suggests that cannabis can adversely affect adolescents who initiate use early and young adults who become regular users because adolescents and young adults have a much greater vulnerability to the toxic effects of cannabis on the brain.
These conditions also have second-hand effects by posing health risks to those members of the public around the user.
In tests using driving simulation, impairment varies in a dose-related fashion, and symptoms are more pronounced with highly automatic driving functions than with more complex tasks that require conscious control.
Public health risks correlated with adolescent cannabis include poorer educational outcomes and occupational attainment.
Under the current prohibition of cannabis, public health is also affected by increased rates of crime surrounding cannabis cultivation, sale and use. The California Legislative Analyst’s Office estimates that the incarceration and parole supervision of cannabis offenders costs the state tens of millions of dollars annually.
Source: excerpted from the California Medical Association Cannabis and the Regulatory Void, October 14, 2011