Drug War

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.

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  1. Drug companies pay a lot of money to have their patented products protected from competition.

    1. She takes private prisons donations

      1. Thinking about it she kills two bird with one stone
        Illegals and drug users

        1. In Arizona, campaign finance reports show that executives at CCA contributed $1,080
          of the $51,193 in seed money for Governor Jan Brewer’s 2010 gubernatorial campaign, in
          addition to a $10,000 donation to the “Yes on100” campaign ? a state sales tax initiative
          heavily promoted by the Governor.8 The state recently reopened the contract process for 5,000
          private prison beds, despite a 2010 state audit that found that private prisons cost taxpayers more
          money per inmate.


          1. Way to go, Rather! Keep putting out the word on the role of private-prison campaign money; it’s a rotten excuse for politicians to hurt their own citizens. Keep getting this word out; maybe to the AZ newspapers?

    2. patented products protected from competition

      Nobody is preventing you from competing against a drug company. But first you have to create something. You cannot steal their products. Is that what you’re complaining about? Same old story: the parasite reviles the producer.

      1. WTF? A drug company makes a drug that has the same effects as a plant then lobby the govt to keep the harmless plant illegal and out of the hands of sick people. Who’s the parasite in this case?

          1. not a parasite

            1. one of us doesn’t use drugs; guess who??

        1. How did you decide that that happened? Whole cloth, how does it work?

        2. Who’s the parasite in this case?

          Why, you are, for arguing against property rights.

          1. Property rights are a government handout, looter.

            1. Tell us where you live, Tony. We’ll come over and raid your fridge and cut donuts in your yard with our hillbilly SUVs.

              Then, you can tell us how you REALLY feel about property rights.

              1. You don’t know the code to my front gate.

                1. “You don’t know the code to my front gate.”

                  Wouldn’t that be the government’s front gate idiot who loses every debate?

          2. I don’t think he’s arguing against property rights, or patents. In context, he’s clearly saying that drug companies support marijuana prohibition to suppress competition.

            Now, does marijuana have the same effects as some drugs? It certainly has the same effects as dronabinol, and seems to be more well-tolerated when vaporized as opposed to taken in pill form. It’s also a stronger painkiller than most prescription NSAIDs; in particular, the disastrous “coxibs” such as celecoxib and rofecoxib, intended to be a stronger and safer form of NSAID, turned out to cause lots of serious side effects and most were later withdrawn from the market. I think cannabis certainly could have competed on-point with the coxibs, being at once safer and more effective, but I don’t think I share the starry-eyed belief that the availability of cannabis is going to knock out the non-narcotic painkiller market entirely. It could, however, raise the bar significantly.

            1. “It certainly has the same effects as dronabinol”


              “It’s also a stronger painkiller than most prescription NSAIDs;”

              Very wrong, demonstrably so. Why do you people think you can lie and not get called on it?

              1. You don’t just get to say “wrong” and win the argument, you have to have FACTS, and REASONING to win a debate. Try harder next time.

      2. Any drug company trying to patent THC is stealing from the guy that discovered marijuana. Thieves don’t have property rights.

  2. Skelletor is the governor of Arizona? Who knew?

    1. That’s unfortunate

  3. I would hate to meet that mug in a dark alley.

  4. meet the new boss, same as the old boss! When will someone or some group grow a pair and stand up to the Feds unconst ways. Dems and repubs, a two sided “tails” coin!

    1. Always call ‘tails’ in a coin flip: the heads-side weighs more and usually will end up at the bottom.

      1. “usually”

        I don’t think it means what you think it means.

  5. I guess governors can just invalidate laws they don’t like.

  6. So she should just ignore the federal law and repeated warnings from federal officials, and pretend they don’t exist? If that’s the case, I don’t know why they’re bothering to go to court over Obamacare or the immigration laws. They can just ignore any rulings and do what they want, right?

    1. Exactly. I don’t know what this woman really thinks about the law. But, I can’t blame her for not wanting to be a martyr for the drug cause. Instead of blaming her, how about we blame the Feds?

      1. It would be interesting to see 50 governors be martyrs for the drug cause, though.

        Thanks, commerce clause!

        1. It would be. But easy for us to urge other people to do such things.

          1. It’s quite easy for me to urge my elected representatives to do such things.

    2. What really bothers me is the ACLU’s not wanting to get a federal judge’s word that the state law is OK.

      1. Probably because they don’t think they can find a federal judge who will give such word.

    3. Of course not. If she feels that she cannot enforce the laws of her state in good conscience, she can always resign.

  7. Why does that camel need glasses?

    1. What a horrible thing to say. I’ve been giggling about it for 5 minutes.

  8. Riggs! Slippers and Morning Links, pronto!

    1. I need my coffee too

      1. John, you’re in charge of the ATF links this morning – gotta get to work.

  9. If you don’t like marijuana, then don’t use it.

  10. Jesus said to do unto others as we would have them to do unto us. None of us would want our child thrown in jail with the sexual predators over marijuana. None of us would want to see an older family member’s home confiscated and sold by the police for growing a couple of marijuana plants for their aches and pains. It’s time to stop putting our own family members in jail over marijuana.

    If ordinary Americans could grow a little marijuana in their own back yards, it would be about as valuable as home-grown tomatoes. Let’s put the criminals out of business and get them out of our neighborhoods. Let’s let ordinary Americans grow a little marijuana in their own back yards.

    Here’s one way that IT IS REALLY WORKING: Arresting the criminals and collecting a fee from the registered growers (and bringing in thousands of dollars to support the county budget); what a great plan! This is the way to build a better America! http://www.pbs.org/wgbh/pages/…..iment.html

    The current proposal before Congress, bill HR 2306, will allow states to decide how they will regulate marijuana. Email your Congresspe?rson and Senators at http://www-.usa.gov/C?ontact/Ele?cted.shtml and ask them to sign on as a CO-SPONSOR of HR 2306.
    And a big THANK YOU to the courageous?, freedom lo?ving legislator?s, governors, and countless others who are working so hard to bring this through! You’re doing a great patriotic service for all of America!

    1. This might as well be an automotive blog and you might as well be singing the virtues of the combustion engine.

      1. Pope Albert wouldn’t like that!

  11. Funny, she care about federal law when she signed that immigration bill.

  12. Seems pretty logical to me dude.

  13. Why is it that the people voted and it won, now the Governor is Blocking the will of the voters. Sounds like the Governor should be arrested and in prisoners.

  14. Let’s review what a “conservative”, “constitutionalist” Republican does:

    ? Ignores the will of the voters.
    ? Ignores federalism when it suits her ends.
    ? Defers to federal control of immigration policy, despite that policy being harmful to Arizona.
    ? Defers to federal control of the drug war, despite that policy being harmful to patients and contributing to border insecurity.
    ? Wants to funnel public funds for private profit (prisons).

    1. Gets a federal precedent showing state mj laws are not in conflict with federal ones.

      1. Yes, Governor Brewer is thwarting Arizona’s voters’ wills (that includes me) so she can set precedent in the war on drugs. Arizona is run by the religious right. It’s a nanny state.

  15. Pot Plants Seized?Organized Crime Collapses


  16. Cut her some slack, her father died fighting the Nazis! (Notwithstanding that he died in 1955. In California. From lung cancer. And never served in the military.)

  17. And never served in the military

  18. Didn’t San Diego -v- NORML basically establish that California’s MMJ laws are not in conflict with federal law?Because CA’s laws only exempt patients and caregivers who are in compliance with the MMJ law from STATE penalties, not federal ones (i.e., the feds can still go after MMJ users for violation of FEDERAL law), it was determined that there is no conflict. Same should apply in Arizona (state MMJ law exempts from state penalty only). We’ll see what the judge says, eh?

  19. great! Firmly say no to drugs.

  20. Gov. Brewer is the definition of a hypocrite.

  21. She’s a hypocrite, pure and simple.

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