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?
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.
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.
The national pro-drug lobby spends millions of dollars to persuade voters to falsely believe “medical” marijuana laws are about compassion for the terminally ill. Because there has been little coordination between the states, the people of targeted states are unaware of the negative consequences of these bad laws until after they have been fooled into passing them. These laws are simply a back-door route to legalization, a shield for widespread recreational use of marijuana, and a springboard for a lucrative marijuana industry that can’t be regulated. Once passed, those selling these laws to voters on the premise of compassion quickly demonstrate their only real interest is capitalism.
Similar to the experience in other targeted states, virtually all of the money spent on Arizona’s “medical” marijuana initiative came from the Marijuana Policy Project. The Arizona prevention organization raised and spent a paltry $25,000 on their campaign as compared to well over $800,000 spent by the Marijuana Policy Project. Their disingenuous campaign tactics were ones used successfully in other states. Their campaign materials were printed in advance and their talking points were well rehearsed. Their main message was an impassioned plea to allow suffering, terminally ill people access to “medicine.” A beautiful young woman who had been a cancer patient was the official spokesperson. The media ate it up, giving plenty of free media time to the beautiful young cancer victim as a human-interest story (thus not a campaign message requiring equal time from our opposition). We were outspent and disadvantaged by years of propaganda. It should have been a rout.
The polls predicted a rout in Arizona. We now understand that the conducting and releasing of disingenuous polls is another one of the national pro-drug lobby’s campaign tactics. Throughout our campaign, well-funded pro-drug groups released (or encouraged the media to conduct and release) poll after poll showing that we would lose by a landslide. Apparently, the pro-drug lobby believes people (and legislators) are sheep. The simple question — “Are you in favor of ‘medical’ marijuana?” – does not reveal the deeper (and more relevant) feelings concerning the widespread recreational use, as well as increased social and economic ills, caused by these laws. This “polling” tactic is going on all over the country. The “polls” simply do not accurately reflect the opinion of the majority on the real issues.
As you know, contrary to the claims of the pro-drug lobby, state “medical” marijuana laws are not popular! (Similar to their strategy of relentlessly repeating their false mantra for 20 years that “marijuana is harmless,” they have spent millions and millions of dollars to deceive the public with disingenuous, loud and aggressive campaign tactics proclaiming the popularity of “medical” marijuana.) Marijuana advocates don’t mention that in California and Colorado, more cities and counties ban marijuana businesses than allow them! Nor do they mention that state “medical” marijuana laws create chaos, causing increased crime, youth marijuana use, and traffic fatalities and spawning a business that simply can’t be regulated.
As evidence that the public is becoming more aware of the chaos, just this past year, among other significant events:
- the people of Montana, through a grassroots campaign created by four moms, led a repeal effort (which led to repeal by the legislature, but then vetoed by the Governor, followed by the passage of a severely restrictive bill that now is being challenged in court by marijuana advocates),
- the people of South Dakota soundly rejected a “medical” marijuana initiative,
- the people of Oregon soundly rejected a “medical” marijuana dispensary component for their existing program,
- the people of California defeated a general legalization bill, despite being outspent by marijuana advocates $3.8 million to $300,000,
- the people of Arizona very narrowly passed a “medical” marijuana bill, despite the fact that opponents were outspent by advocates $800,000 to $25,000, and
- a repeal bill was introduced in the New Mexico legislature, resulting in a memorial bill requiring comprehensive studies over the next year.
More and more states are saying yes to medical marijuana. But local governments are increasingly using their laws to just say no, not in our backyard.
In California, with the nation’s most permissive medical marijuana laws, 185 cities and counties have banned pot dispensaries entirely. In New Jersey, perhaps the most restrictive of the 17 states that have legalized marijuana for sick people, some groups planning to sell cannabis are struggling to find local governments willing to let them in.
Dispensaries have also been banned in parts of Colorado [and Montana, California] and have run into opposition in some towns in Maine.
Local politicians have argued that pot is still illegal under federal law, that marijuana dispensaries bring crime, and that such businesses are just fronts for drug-dealing, supplying weed to people who aren’t really sick.
Cities and towns are prohibiting dispensaries outright or applying zoning ordinances so strict that they amount to the same thing. The ordinances typically set minimum distances between such businesses and schools, homes, parks and houses of worship.”
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.