The Columbian (Vancouver, WA) Tuesday, march 27, 2012
I found it disturbing that the March 23 story “State: Pot initiative could generate $560M a year in taxes” would announce that the pot initiative could generate millions of dollars a year for the state coffers.
Yet, also in the same paper was a story “Houston drowned; cocaine, heart disease were factors,” concerning Whitney Houston’s tragic death, related to cocaine and marijuana use.
To those who support a marijuana legalization initiative for recreational use, I have one question: Is the savings we realize really worth the cost in human suffering, addiction and death?
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.”
The study led by Associate Professor Mark Asbridge from Dalhousie University in Halifax, is the first to review of data from drivers who had been treated for serious injuries or died in car accidents.
The level of impairment from smoking pot might not be as severe as alcohol intoxication, but it does require a public health response, a researcher says. (Noah Berger/Associated Press)
“To our knowledge this meta-analysis is the first to examine the association between acute cannabis use and the risk of motor vehicle collisions in real life,” the researchers write in the latest issue of the British Medical Journal.
The researchers reviewed nine observational studies with a total sample of 49,411 accident victims. To rule out the effects of alcohol or other drugs the researchers calculated the odds for cases where cannabis — but no alcohol or other drugs — was detected in blood test or the driver had reported smoking three hours before crash.
They found that smoking cannabis three hours before driving nearly doubled a driver’s risk of having a motor vehicle accident.
Read exhaustive British Medical Journal report on accidents and pot: http://www.bmj.com/content/344/bmj.e536
Last week, NORML, the nation’s oldest marijuana legalization organization, published in their weekly newspaper that “medical marijuana has no discernible impact on marijuana use.” NORML cited a new article in the Annals of Epidemiology (a respected journal for sure; the same one that will soon release a study showing that marijuana is significantly linked with car crashes) which critiques an earlier article by Wall and colleagues showing an increase in marijuana use among states with medical marijuana. Essentially, the authors replicated the Wall study using different methods and got different results.
Certainly medical marijuana is a complex issue – one where politics, compassion, ethics and science collide. Sixteen states and D.C. technically have laws allowing marijuana as medicine on the books, but these laws, like other drug laws, vary widely in implementation, so it is tough to even perform studies linking medical marijuana with use changes. NORML doesn’t seem too bothered by that. They went on to cite a Brown University study looking at Rhode Island – a state with a barely discernible medical marijuana program in the first place – as further “proof” that medical marijuana doesn’t impact use. And the usual folks, like Reason Online (I’m just waiting for Maia Szalavitz to get to this as well), essentially republished the NORML line without any critical analysis.
A closer look at these studies shows something a little different, and much more nuanced. First, they completely ignore the more thorough studies that in fact do show increases in use. A major study published in Drug and Alcohol Dependence by researchers at Columbia University looked at two separate datasets and found that residents of states with “medical” marijuana had marijuana abuse/dependence rates almost twice as high than states without such laws.
Most importantly, the studies discussed by NORML miss the mark, by failing to take into account the actual implementation of medical marijuana laws. For example, California did not have “dispensaries” until 2003, seven years after the law officially was on the book. And Rhode Island, the state used in the Brown study, had about 1,500 people in the entire program, so it’s not a revelation that would not see any significant effect on teens. Time will tell, with further study and analysis, how medical marijuana is affecting attitudes and use rates in the long term.
What of course is never talked about is how medical marijuana programs in states that have gone full steam ahead actually work. Rarely mentioned is the fact that, for example, according to a 2011 study in the Journal of Drug Policy Analysis that examined 1,655 applicants in California who sought a physician’s recommendation for medical marijuana, very few of those who sought a recommendation had cancer, HIV/AIDS, glaucoma, or multiple sclerosis. A study published in the Harm Reduction Journal (not exactly an anti-drug mouthpiece), analyzing over 3,000 “medical marijuana users in California, found that an overwhelming majority (87.9%) of those queried about the details of their marijuana initiation had tried it before the age of 19, and the average user was a 32-year-old white male. 74% of the Caucasians in the sample had used cocaine, and over 50% had used methamphetamine in their lifetime. Hardly any had life-threatening illnesses.
Finally, we know from other surveys like the University of Michigan Monitoring the Future that the perceived harm for smoking marijuana occasionally or regularly has been decreasing among the 8th grade since 2007. Social disapproval for smoking marijuana once or twice, occasionally, and regularly has been decreasing among 8th graders since 2007. That has translated into a major increase in use, which is no surprise to researchers who know that attitudes effect youth use rates.
And how can we say that today’s medical marijuana programs aren’t having an effect on youth attitudes toward the drug? “Marijuana is medicine” has become a common slogan in America today, as people like Dr. Christian Thurstone, a Colorado doctor working with kids, recently talked about on National Public Radio.
It’s time to get the legalization lobby out of the business of medical marijuana and instead focus our attention on scientists developing non-smoked marijuana-based medications for the truly ill. That would make this issue no longer the sick joke that it is today.
Author: Kevin Sabet
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
The American Society of Addition Medicine says Marijuana is a mood-altering drug capable of producing dependency. Its chief active ingredient is THC (delta-9-Tetrahydrocannabinol), but there are many other ingredients.
Marijuana has been shown to have adverse effects on memory and learning, on perception, behavior and functioning, and on pregnancy. Because of the widespread use of this drug, its effects on mind and body, and the increasing potency of available supplies.
Persons suffering from alcoholism and other drug dependencies should be educated about the need for abstinence from marijuana and its role in precipitating relapse, even if their original drug of choice is other than marijuana.
Treatment programs providing addictions treatment for chemically dependent patients should include tests for cannabinoids with other drug test panels and consider test results when designing treatment plans.
Read the report ASAM Statement on Marijuana
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.
Of course there are variables, but at .5 grams of marijuana per points, one pound makes about 900 joints — almost 3 a day for a year! (Using half a gram per joint, 28.35 grams per ounce and 16 ounces per pound.)
Recently a Oregon man with a “medical marijuana” card was found in Idaho with almost 69 pounds of marijuana on his way to Utah. He claimed it was legal because he had a card. That was over 62,000 joints worth of pot headed for Utah consumption.
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
Nationwide in 2009, 63 percent of fatally injured drivers were tested for the presence of drugs. Overall, 3,952 fatally injured drivers tested positive for drug involvement in 2009.
This number represents 18 percent of all fatally injured drivers and 33 percent of those with known drug test results in 2009. Both the proportion of fatally injured drivers tested and the proportion of these drivers testing positive for drugs generally increased over the 5-year time period shown.
Read the report: US DOT Traffic Safety Drug Involvement 2010
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.
On Tuesday, major newspapers and pro-pot blogs alike published stories with the headline “Marijuana use does not harm the lungs.” They reported a surprising finding in a study of over 5,000 people, published in the Journal of the American Medical Association, that occasional marijuana use did not harm the lungs. Heavier use, such as very frequent use, as well as occasional tobacco use, however, did show a decline a lung function. Most surprisingly, the study’s authors speculates that the mild beneficial effects they found in occasional marijuana smokers could be due to enhanced lung capacity resulting from the heavy and extended inhalations entailed in marijuana smoking. On the flip side, since beneficial lung effects were only observed in occasional marijuana smokers, the authors speculate that exposure to potential toxins was insufficient to outweigh or undo the observed benefits they report.
It’s an intriguing study. After it was published, some former Oxford colleagues and I looked at the researcher’s methods and study design. We didn’t find anything in the study design to question its methodology. Yes, it would have made sense to test the THC levels of marijuana in these smokers, who started using 20 years ago, when the THC and tar levels were much lower than they are today. But the researchers followed standard protocol, and there is no reason to believe they had a pre-set agenda. They were, by all news accounts, judicious and cautious about making grand claims about marijuana’s positive health effects.
In fact, the lead researcher admitted that “Marijuana is clearly an irritative smoke for the lungs,” citing coughing after taking a “hit” to illustrate his point.
This study looked at one single outcome—lung capacity. The truth is that marijuana is linked to all kinds of respiratory problems, and studies have consistently shown this, although they barely gain much attention—perhaps because people have come to expect such findings. Long-term studies from the USA and New Zealand have shown that regular cannabis smokers report more symptoms of chronic bronchitis than non-smokers. There is a four-fold greater quantity of cannabis smoke particles (tar) in the respiratory tract compared to the tar generated from the same amount of smoked tobacco. Again, the way marijuana is smoked may have something to do with this: marijuana smokers hold their breath significantly longer than tobacco smokers. Interestingly, this latest study shows that the heavy breathing in done by the occasional marijuana smokers may help them—but only in the short run, since more frequent use seems to wipe out any benefit. But marijuana smoke also includes an enzyme that converts some hydrocarbons into a cancer-causing form, potentially accelerating the changes that produce malignant cells. Animal lungs exposed to cannabis smoke developed abnormal cell growth and accelerated malignant transformation, to a greater extent than those exposed to tobacco. An interesting note is that researchers caution HIV positive individuals who smoke cannabis may be predisposed to pulmonary infections and pneumonia, a consequence that no doubt warrants further investigation.
Sadly, advocates caught up in their adulation of the JAMA finding neglected to mention any of these findings from the over four decades of research tying marijuana use to mucosal injury, inflammation, increased cough and phlegm production, and wheezing. They also left out marijuana’s link to increased bronchitis, worsening of asthma symptoms, and worsening of cystic fibrosis symptoms. (In case you’re wondering, the evidence linking marijuana and lung cancer are mixed, with a recent study stating that “cannabis smoking increases the risk of developing a lung cancer independently of an eventual associated tobacco exposure.” Other studies have failed to find such a link.)
I asked a few other experts for their take on the study. Mark Gold, perhaps the most distinguished professor in the country on drugs and the brain and body, told me, “It is possible, but not proven, that cannabis smoke may be less toxic than cigarette smoke, but it is not better than clean air. Clear, unbiased, and convincing evidence of safety and comparable efficacy are needed for therapeutic claims. It is smoke, after all.”
“Columbus brought Tobacco to the “New World” and it took nearly 500 years for absolute proof of tobacco smoke dangerousness to be established,” Gold continued “To this day, each year, over 400,000 United States deaths are due to tobacco smoke. We had occasional tobacco smokers in the 18th century and textbooks written describing the wonders and medicinal value of tobacco smoking. The occasional smoker increasingly becomes an anachronism with increased access augmented by social marketing, claims of therapeutic efficacy, reduced stigma and price.”
Bob DuPont, the man who introduced modern drug treatment to Washington D.C. and served three presidents as founding director of the National Institute on Drug Abuse, said, “Every user of alcohol or marijuana starts out intending to be a moderate, infrequent user and is quickly reassured that this goal is easily achieved. But it does not work out that way for a significant proportion of those initial users.”
Furthermore, he asks, “What other health-related advice is justified when a large minority of people who take that advice suffer terrible — often fatal — consequences?”
Indeed, one could imagine a study on speeding that would show the vast majority of people who speed do so safely and get to their destinations faster than those who obey speed limits. They are not arrested and have no accidents – in fact for some reason researchers are still not sure about, they tend to have significantly less accidents than slower drivers. But that doesn’t mean we would suddenly approve of speeding and promote its activity.
We still have a long way to go to fully understand how, why, and if marijuana affects all different kinds of bodily functions, and certainly this new research should lead us to more serious study ofmarijuana’s effect on the lungs specifically. Any objective look at the existing science will show that, marijuana causes decreased cognitive skills (including attention, motivation, memory and learning), as well as impaired driving, psychosis, or panic during intoxication, and addiction, which occurs in about 1 in every 10 users (a number similar to alcohol, and lower than cocaine, which addicts about 1 in 6 people who ever use it). There is no doubt that this finding on lung function and marijuana gives us much to mull over. For example, a longitudinal study is needed that looks at current trends of high dose marijuana and heavy users, especially those using frequently for “medical purposes.” But to say that marijuana smoke is now good for you, as some have suggested, is both disingenuous and dangerous.Kevin A. Sabet, Ph.D., a newly appointed assistant professor at University of Florida’s School of Medicine, is a regular columnist at The Fix and Huffington Post anda former Obama Drug Policy Adviser. He took a long, deep breath of Manhattan air before writing this article from his favorite coffeeshop in Greenwich Village. He is based in Cambridge, Massachusetts.
1. Our current legal drugs—alcohol and tobacco—are examples of commercialized products with addiction potential and high usage rates fueled by easy availability. Although these products are taxed, neither produces a net economic benefit to society. The healthcare and criminal justice costs associated with alcohol and tobacco far surpass the tax revenue they generate, and little of the taxes collected on these substances is contributed to the offset of their substantial social and health costs.
2. Federal excise taxes collected on alcohol in 2007 totaled around $9 billion and states collected around $5.6 billion. Taken together, this is less than 10 percent of the more than $185 billion in alcohol-related social costs such as healthcare, lost productivity, and criminal justice system expenses.53 Nor does tobacco carry its economic weight when taxed: each year, tobacco use generates only about $23 billion in taxes but results in more than $183 billion per year in direct medical expenses as well as lost productivity.
3. Advocates of legalization say the costs of prohibition, mainly through the criminal justice system, place a great burden on taxpayers and governments. While there are certainly costs to current prohibitions, legalizing drugs would not cut costs associated with the criminal justice system.
4. Marijuana use is the highest it has been in 8 years. In 2010, daily marijuana use increased significantly among all three grades surveyed (8th, 10th, and 12th graders) in the Monitor The Future (MTF) study.
5. One in 11 people who start marijuana use will become addicted—a rate that rises to one in six when use begins during adolescence. In 2009, marijuana was involved in 376,000 emergency department visits nationwide.
6. Making matters worse, confusing messages being conveyed by the entertainment industry, media, proponents of “medical” marijuana, and political campaigns to legalize all marijuana use perpetuate the false notion that marijuana use is harmless and aim to establish commercial access to the drug. This significantly diminishes efforts to keep our young people drug free and hampers the struggle of those recovering from addiction.
7. The Administration steadfastly opposes drug legalization. Legalization runs counter to a public health approach to drug control because it would increase the availability of drugs, reduce their price, undermine prevention activities, hinder recovery support efforts, and pose a significant health and safety risk to all Americans, especially our youth.
8. There is no substitute for the scientific approval process employed by the FDA. For a drug to be made available to the public as medicine, the FDA requires rigorous research followed by tests for safety and efficacy. Only then can a substance be classified as medicine and prescribed by qualified health care professionals to patients.
9. In the wake of state and local laws that permit distribution of “medical” marijuana, dozens of localities have been left to grapple with poorly written laws that bypass the FDA process and allow marijuana to be used as a so-called medicine. John Knight, director of the Center for Adolescent Substance Abuse Research at Children’s Hospital Boston, recently wrote: “Marijuana has gotten a free ride of sorts among the general public, who view it as non-addictive and less impairing than other drugs. However, medical science tells a different story.”
10. Similarly, Christian Thurstone, a board-certified Child and Adolescent Psychiatrist, an Addiction Psychiatrist, and also an Assistant Professor of Psychiatry at the University of Colorado, said: In the absence of credible data, this debate is being dominated by bad science and misinformation from people interested in using medical marijuana as a step to legalization for recreational use. Bypassing the FDA’s well-established approval process has created a mess that especially affects children and adolescents. Young people, who are clearly being targeted with medical marijuana advertising and diversion, are most vulnerable to developing marijuana addiction and suffering from its lasting effects.
11. Outside the context of Federally approved research, the use and distribution of marijuana is prohibited in the United States.
The NCI is responsible for coordinating the National Cancer Program and for maintaining our momentum in cancer research. Recent updates to their website include:
“We agree that it is the role of the U.S. Food and Drug Administration (FDA) to evaluate and approve drugs for use in the United States. We also agree that cannabis and cannabinoids should be subjected to the same rigorous scientific investigation as other drugs and medical devices to determine their effectiveness and safety.”
In the General Information section the wording was revised to make it clearer that “Cannabis is not approved by the FDA for any medical use.”
In the General Information section, a sentence was replaced to add clarification. The CAM Editorial Board realized that the previous wording could have been misinterpreted as being a recommendation for prescribing Cannabis, which was not the intent of the Board.
In addition, the current evidence for the antitumor properties of Cannabi is discussed only in the context of laboratory studies and not in research involving humans.
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.