Things seemed to be going very wrong for the state medical-marijuana movement. Two days after Barack Obama was sworn in, federal agents began a series of raids on licensed cannabis dispensaries and growers in California and Colorado—something Obama had suggested would not happen in his presidency.
Activists remembered that in 1999 candidate George W. Bush, when asked about state medical-marijuana efforts, declared, “I believe each state can choose that decision as they so choose.” He went on to crack down on doctors, dispensaries, farmers, and terminally ill patients who use marijuana according to their states’ laws.
Advocates felt fooled again. Just a year ago, campaigner Obama told the Mail Tribune in Oregon, “I think the basic concept that using medical marijuana in the same way, with the same controls as other drugs prescribed by doctors, I think that’s entirely appropriate. I would not punish doctors if it’s prescribed in a way that is appropriate; that may require some changes in federal law.” In August 2007, he was asked a similar question on the trail in Nashua, New Hampshire. “I would not have the Justice Department prosecuting and raiding medical marijuana users,” he said. “It’s not a good use of our resources.”
Indeed, more states have legalized medical marijuana in the last 13 years than at any time since the drug was outlawed in 1937. Even as Obama won the election, Michigan became the 13th state—the first in the Midwest—to pass a new policy. The measure won with 63 percent of the vote.
So is Obama a fair-weather friend? After a brief but carefully tuned White House statement on Feb. 9, advocates believe that the administration may have been just as surprised by the raids as they were. It is thought that the DEA might have been tending to some last-minute business before Obama fleshed out his new agenda, which includes a replacement for Michele Leonhart, a Bush appointee still serving as DEA acting administrator. “The President believes that federal resources should not be used to circumvent state laws, and as he continues to appoint senior leadership to fill out the ranks of the federal government, he expects them to review their policies with that in mind,” said White House spokesman Nick Shapiro.
Bruce Mirken of the Marijuana Policy Project, which in 2007 hired Libertarian Bob Barr as a lobbyist, says that his group is watching with “great interest how this unfolds.” “Given that the White House has reaffirmed the campaign promises he made,” Mirken says, “we are very hopeful.”
He’s no Pollyanna, however. Advocates see veteran “drug warriors” like White House Chief of Staff Rahm Emanuel, new Attorney General Eric Holder, and Vice President Joe Biden at the levers of power and know federal drug policy could turn on them in an instant. But if Obama’s first instincts for limited federal power over pot prevail, he could set in motion a series of unprecedented local and state reforms and perhaps give Congress enough cover to change federal law.
“This is wonderful news—if it happens. It means the states will be able to make public-health decisions for people who are suffering or dying and for whom marijuana is a palliative treatment,” says Randy Barnett, a constitutional law professor at Georgetown who unsuccessfully argued for the plaintiffs in Gonzales v. Raich in 2005.
In that landmark case, the Supreme Court affirmed, in a 6-3 decision, that the Constitution’s commerce clause permitted Congress, via the federal Controlled Substances Act, to prohibit the use of marijuana for medicinal purposes. “It was a huge blow,” says Barnett. The three dissenters—then Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas—balked at the majority for preventing “an express choice by some states, concerned for the lives and liberties of their people, to regulate medical marijuana differently.”
The two plaintiffs, Angel Raich, a brain-cancer patient, and Diane Munson, who suffered from chronic back pain following a car accident, had been arrested for cultivating and using—though not selling—marijuana under California law. Thomas took on the commerce clause argument directly: “[If] the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives and potluck suppers throughout the 50 states.”
Officials from Mississippi, Alabama, and Louisiana recognized a good federalist fight and weighed in with an amicus brief: “The question presented here is not whether vigorous enforcement of the Nation’s drug laws is good criminal policy. It most assuredly is. The question, rather, is whether the Constitution permits the Federal Government, under the guise of regulating interstate commerce, to criminalize the purely local possession of marijuana for personal medicinal use. It does not.”
Obama’s apparent willingness to use discretion couldn’t come at a more opportune time. Until now, only California and Colorado have allowed personal cultivation and state-sanctioned channels to deliver pot to patients. In California, there are several hundred dispensaries, part of a burgeoning cottage industry that unofficial estimates say generates more than $150 million annually. But because of California’s unbridled image and a wariness of federal blowback, the other 11 states that legalized medical marijuana have been reluctant to grow their programs beyond the laws on paper, frustrating advocates who believe that sick and dying people should have an alternative to costly and addictive pharmaceuticals. New Mexico, which passed its medical-marijuana law in 2007, is gingerly moving ahead with a network of dispensaries, as are voters in Oregon and legislators in Rhode Island, who are promoting a bill that would create three nonprofit “compassion centers” to distribute pot according to the state’s three-year-old program.
“[Obama] is really the linchpin in all of this,” says Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws (NORML). The president’s pledge to halt federal intrusion “would be giving a massive green light, telling states that want to move ahead in their own direction.”
Advocates acknowledge that there has been a “graying of the law” in California, where nearly anyone who wants a doctor’s recommendation for pot can get it. This goes to the heart of the opposition—that medical marijuana is a stalking horse for radical legalization. “The issue definitely turns on local values and mores,” St. Pierre insists, with each state tailoring its laws to its population. Just look at Colorado. It may have one of the most liberal medical-marijuana programs around, but it recently incentivized the National Guard to help enforce its drug laws. Hardly Haight-Ashbury.
Remaining medical-marijuana states include Montana, Alaska, Maine, Hawaii, Nevada, Vermont, and Washington. South Dakota is the only state to reject medical-marijuana legalization, having voted against it 2006. There are ongoing efforts for new laws in Massachusetts—which overwhelmingly passed a decriminalization measure on the ballot in November—New Hampshire, New York, New Jersey, Minnesota, Connecticut, and Missouri, where the hamlet of Cliff Village just joined the city of Columbia in passing a local marijuana policy.
Dan Viets, an attorney and activist behind multiple, but so far unsuccessful, attempts to pass a medical-marijuana bill in the Missouri General Assembly, calls Cliff Village, “a suburb of Joplin, not a town known for extreme notions or political action.” But the mayor, Joe Blundell, was severely injured in a train wreck years back and smoked marijuana to ease his pain in lieu of legally prescribed painkillers such as morphine and Demerol. He told reporters that he passed the ordinance to advance the state bill protecting medical-marijuana users. “This is symbolism, pure and simple,” Blundell explained. “I would like to be the brave one who grows the first plant, but they’ve built a lot of cages for the people who stick their necks out. Really, I just want to see a vote.”
In 2007, Rasmussen polling found that 57 percent of Missourians support medical marijuana. Viets said that with the right resources, they could collect the necessary number of signatures to bypass the legislature and get directly on the ballot. “It wouldn’t lose,” he said.
Of course, Washington could do much to help spare the states the effort. California Rep. Dana Rohrabacher, one of the most conservative Republicans on Capitol Hill, has been working with Reps. Maurice Hinchey (D-N.Y.), Barney Frank (D-Mass.), and Ron Paul (R-Texas) to get the federal government out of the business of regulating cannabis. In an interview with TAC, Rohrabacher said he is tired of Republicans who seem to have lost their moorings when it comes to states’ rights. “I think [it] reflects a lack of depth on the part of many Republicans and the willingness to go along with stereotypes and gut reactions rather than looking at the issue philosophically, and perhaps more comprehensively,” he said. He isn’t alone. The late William F. Buckley Jr. suggested in 2004 that marijuana could be regulated much like tobacco and alcohol, but it would take a “genuine republican groundswell” to get anywhere.
“[Republicans] became fair-weather federalists,” says Mike Krause, a former Coast Guard who worked on drug interdiction in the Caribbean, but now directs the Justice Policy Initiative at the libertarian Independence Institute in Colorado and opposes the War on Drugs. “States’ rights are just fine until they want to pass something you don’t like.”
That’s partly why the perennial Rohrabacher-Hinchey amendment to stop federal crackdowns on state medical-marijuana activities has been a flop. The limited federal power brief has brought around some conservatives who generally oppose marijuana use, like Colorado Rep. Tom Tancredo, but a few principled lawmakers don’t make a groundswell.
No wonder that activists—even Rohrabacher—are impressed with Obama. The president didn’t have to send a spokesman to clarify his position, but he did, and his dispensation, if real, can move mountains at the state level. “There is no political upside to this” for Obama, says Krause, “except a principled upside.”
Kelley Beaucar Vlahos is a Washington, D.C.-based freelance reporter.
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