Suing the Feds

Over at Points: The Blog of the Alcohol and Drugs History Society, guest blogger Allen Hopper of the ACLU discusses the issue of the way the federal government is conducting their anti-state medical marijuana offensive and how that could result in a court case.

This is the issue we were discussing in 10th Amendment Case recently, and I think that perhaps Allen does a better job than I of explaining why this potential lawsuit is valid, despite established Supreme Court case law giving the feds the authority to outlaw cannabis.

So, what are these threatening new letters really about? In a letter to Attorney General Holder last week, the ACLU suggested that the federal government is improperly attempting to influence the states’ legislative processes. The ACLU points out that several of these letters landed on state officials’ desks just as new state laws regulating medical marijuana were about to be enacted. The Governor of Washington, for instance, vetoed a popular medical marijuana bill after receiving a letter from U.S. Attorneys threatening to prosecute state officials who license and regulate dispensaries. If the ACLU is right about the real purpose behind these U.S. Attorney letters, the feds may be opening a can of worms they’ll wish they hadn’t. A federal lawsuit put on hold in 2009 after the DOJ issued the Ogden Memo could be reopened, with court-ordered discovery into federal enforcement practices.

It isn’t at all about whether marijuana is illegal at the federal level, but rather whether the federal government is improperly enforcing the law selectively in order to interfere with the state’s legislature. That’s a legitimate 10th Amendment issue.

This lawsuit would be a continuation of one filed some time ago by the ACLU (later temporarily put on hold due to the Holder memo), and which the courts have already refused government’s motion to dismiss.

At issue was whether the government had selectively enforced federal marijuana laws in California, purposefully targeting those organizations operating in full compliance with state laws and most closely collaborating with local governments; the lawsuit asserted that such raids were an attempt to undermine state medical marijuana laws and force the state to re-criminalize medical marijuana.

It’s the selective enforcement that opens the door to this legitimate legal challenge. That doesn’t mean that it’ll win if pursued, but it is completely separate from the Raich decision.

[Thanks, Amy]

In other lawsuit news, Groups Sue Feds Over Marijuana Rescheduling Petition Delay

As many of you know, one of the big tricks the federal government uses to maintain its death-hold grip on outlawing marijuana is to have systems in place for making change and then using delaying tactics and internal revolving door appeal systems to keep the challenge in limbo for years. Usually the courts are hesitant to get involved as long as there is a “process” going on.

Inevitably, however, there is a limit that even the courts will accept.

A coalition of medical marijuana and drug reform groups filed suit in federal court in Washington, DC, Monday in a bid to force the government to act on a rescheduling petition that has languished at the DEA for nearly nine years. The lawsuit asks that the government respond to the petition within 60 days.

The petition argues that marijuana has accepted medical use and should thus be removed from Schedule I of the Controlled Substances Act. Sixteen states and the District of Columbia currently allow for the medicinal use of marijuana, and an ever-increasing mountain of evidence has shown marijuana to be effective in treating a number of diseases and conditions.

The groups filing the lawsuit include the Coalition for Rescheduling Cannabis (CRC), Americans for Safe Access (ASA), Patients Out of Time, NORML, and California NORML. Also included are medical marijuana patients William Britt, Kathy Jordan, Michael Krawitz, and Rick Steeb.

The first rescheduling petition in 1972 was stalled for 22 years.

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16 Responses to Suing the Feds

  1. Matthew Meyer says:

    Pete, thanks for showing us the Points blog, looks like a good one.

  2. Tony Aroma says:

    I have no doubt the DEA will respond within 60 days. Here’s the DEA’s response: “You want us to respond to the petition? OK, request denied.”

    BTW, since when does the DEA decide on drug scheduling? I thought they just enforce the laws (the “E” in DEA), not make them. Is this some new power they’ve usurped along the way?

    According to the Controlled Substances Act, it is the US Attorney General, with input form HHS, who decides what substances go on what schedule and when or if a schedule should be changed. See the relevant part of the CSA below:

    The Attorney General shall apply the provisions of this subchapter to the controlled substances listed in the schedules established by section 812 of this title and to any other drug or other substance added to such schedules under this subchapter. Except as provided in subsections (d) and (e) of this section, the Attorney General may by rule –
    (1) add to such a schedule or transfer between such schedules any drug or other substance if he –
    (A) finds that such drug or other substance has a potential for abuse, and
    (B) makes with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title for the schedule in which such drug is to be placed; or
    (2) remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.

  3. Monterey Bud says:

    Does everyone know and understand that the US Government has Patent # 6,630,507 on …. Drum rolls please… CANNABINOIDS!

    How could the Federal Government on one hand call cannabis a schedule I (one) narcotic…
    “(1) Schedule I.—
    (A) The drug or other substance has a high potential for abuse.
    (B) The drug or other substance has no currently accepted medical use in treatment in the United States.
    (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.”
    No prescriptions may be written for Schedule I substances.”.

    And yet on the other hand the Federal Government through the US Dept. of Health and Human Services, holds a patent to CANNABINOIDS? Pious Hypocrites

    Stay Legal in 2011

  4. Chris in WI says:

    @Tony Aroma: While you are correct that the AG has the authority, apparently you didn’t get the memo.

    The current AG has deligated the authority of rescheduling to the head of the DEA (Michele Leonhart). Can you say “Fox guarding the hen house?”

    There is so much corruption regarding our Cannabis policy in this country it would make a prohibition gangster blush.

    In a free country Truth and Math should rule, not conjecture and legislative morality. If we really looked honestly at the ‘truth’ and ‘math’ we would recognize that cannabis laws are the last remaining vestige of our ugly racist past in this country.

    Freedom to Choose an abortion, but not to smoke a joint. Not what the founding fathers thought would happen I bet.

  5. Steve says:

    In Arizona the state is suing the Feds, too, but…

    AZ MMJ Act Legal Update

    Governor Brewer, Attorney General Horne Announce Suit Regarding Arizona Medical Marijuana Act

    … Medical marijuana also presents uncertainty for state law enforcement. The U.S. Attorney’s letter calls into question the ability of the Arizona Department of Public Safety (DPS) to maintain federal grant monies, the department’s enforcement activities and federal task force actions, and the employment status of DPS employees who could be in violation of federal law while participating as consumers in the AMMA.

    For these reasons and others, a declaratory judgment action regarding medical marijuana in Arizona is necessary to determine whether AMMA violates federal law and, therefore, is void.

    “The State of Arizona has worked to follow the wishes of voters,” said Governor Brewer. “But I won’t stand aside while state employees and average Arizonans acting in good faith are unwittingly put at risk. In light of the explicit warnings on this issue offered by Arizona’s U.S. Attorney, as well as many other federal prosecutors, clarity and judicial direction are in order.”

    • Windy says:

      Just like with WA State’s Gov Gregoire, those letters serve as an excuse for Gov Brewer to do what she wanted to do anyway — void the wishes of the voters. Our elected politicians no longer really care about what the voters want, they only give lip service to “serving at the voters’ will”. So what do we do about it?

      • noydb says:

        One word, IMPEACH.
        This is the only alternative to send a strong message to our elected officials that will we not stand by and let them take away laws that the majority of the people voted for.
        They work for us, their job is to represent us not force their misguided morals upon us.
        Waiting for the next election is too long, toss them out immediately.
        If this would happen in even one state you can bet the rest of them will think twice before tramping all over the will of the people.

  6. Rick Steeb says:

    Schedule I Cannabis is a damned lie.

    What is the question?

  7. noydb says:

    The most unsettling thing to me is that cannabis has remained in Schedule I for so many decades despite all of the efforts to have it reclassified.

    Anyone with even a half an ounce of common sense can see that it not only does not meet the requirements but also the sheer contradiction of having Marinol and Dronabinol on Schedule III.

    It’s time for the federal government to do the right thing and reclassify cannabis.
    Refusal to do so not only looks hypocritical and corrupt but extremely arrogant as well.

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