Cannabis Capitulation

The marijuana exception to Jan Brewer's federalism

New Jersey Gov. Chris Christie, a Republican and former U.S. attorney, has never been keen on his state's Compassionate Use of Medical Marijuana Act, which his predecessor, Jon Corzine, signed into law on the last day of his administration. But last week Christie announced that New Jersey will proceed with plans to let six nonprofit organizations distribute marijuana to patients with "debilitating medical conditions" such as cancer, AIDS, and multiple sclerosis, despite the risk of federal prosecution. 

In Arizona, meanwhile, the Medical Marijuana Act approved by voters last November remains on hold thanks to Gov. Jan Brewer, who worries that it conflicts with the federal Controlled Substances Act. Brewer, a Republican who proudly advocates a "new federalism" that "protects the States and [their] citizens against an over-reaching federal government," in this case seems happy to let the Obama administration override the will of Arizona's voters. 

Although President Obama has repeatedly said he opposes "using Justice Department resources to try to circumvent state laws on this issue," several U.S. attorneys warned last spring that compliance with state law offers no protection against federal prosecution for growing or distributing marijuana. That position was confirmed by a June 29 memo from Deputy Attorney General James Cole. 

Citing this reversal, Brewer has asked a federal judge to decide whether the Arizona Medical Marijuana Act, which she opposed before the election, "complies with federal law" or is "preempted in whole or in part because of an irreconcilable conflict with federal law." Oddly, Brewer expresses no preference between those two diametrically opposed choices, which reinforces the impression that her suit is a veiled attempt to overturn Arizona's law without antagonizing its supporters. 

Brewer claims to be concerned about the legal exposure of state employees who license and regulate dispensaries. But Dennis Burke, the U.S. attorney for Arizona, says he has "no intention of targeting or going after people who are implementing…state law." 

In any case, all state regulators would be doing is determining who qualifies for a medical exemption from state drug penalties. As the American Civil Liberties Union notes in a motion to dismiss Brewer's suit, performing that function does not conflict with the Controlled Substances Act or prevent the federal government from enforcing it. 

The ACLU argues that there are no plausible grounds for charging state employees with a federal crime, since licensing and regulating dispensaries does not involve growing or distributing marijuana and does not meet the intent and knowledge requirements for convicting someone of conspiracy, aiding and abetting, acting as an accessory, or money laundering. The group adds that regulators could not be prosecuted simply for failing to rat out licensees to the feds, since "respecting confidentiality does not constitute an affirmative act," which is required to convict someone of concealing a felony.

Although Vermont, Delaware, and New Jersey have proceeded with plans for state-licensed dispensaries despite the prosecution threats, Brewer is not the only governor who has capitulated to federal pressure. Washington Gov. Christine Gregoire, a Democrat who had supported a bill that would have authorized dispensaries, decided to veto it after receiving a threatening letter from U.S. attorneys. Rhode Island Gov. Lincoln Chafee, an independent, likewise has halted plans for dispensaries.

But Brewer's timidity is especially striking in light of her devotion to state autonomy in areas such as health care, where she has challenged federally mandated insurance, and immigration, where she has sought to pick up the slack from an administration she perceives as insufficiently committed to enforcing the law. "The United States has a federal government, not a national government," she declared in a speech last March, promising to "pursue a policy of renewed federalism" and complaining that "never during our nearly 100 years of statehood has federal interference…been more blatant."

Two months later, Brewer surrendered to federal interference by suspending her state's medical marijuana program. Legal scholars often bemoan "the drug exception to the Fourth Amendment." Apparently there is also a drug exception to the 10th Amendment.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2011 by Creators Syndicate Inc.