Drug War

The ACLU and the DOJ Form a Medical Marijuana Alliance


The American Civil Liberties Union has strongly criticized the Justice Department's mixed signals on medical marijuana, which some governors have cited in blocking plans to license and regulate dispensaries. But the ACLU and the Justice Department see eye to eye on the subject of Arizona Gov. Jan Brewer's lawsuit asking a federal judge to decide whether her state's medical marijuana law is pre-empted by the Controlled Substances Act. Both say the suit, which Arizona Attorney General Tom Horne filed in May, should be dismissed because the issues it presents are not ripe, the state has no standing to raise them, and there is no true case or controversy. They argue that Brewer, who opposed the Arizona Medical Marijuana Act (AMMA) before voters approved it last November and in her complaint takes no position on its validity, is essentially asking for an advisory opinion on the constitutionality of a state law, which federal courts are loath to issue.

This legal alliance between the ACLU, a leading defender of medical marijuana laws, and the DOJ, the chief threat to them, has led both of them to minimize the possibility that state employees could be prosecuted for implementing the AMMA, which is the potential injury that Brewer claims to be worried about. The ACLU has analyzed all the possible federal charges suggested by Horne (including conspiracy, aiding and abetting, and money laundering), arguing that they do not apply to state regulators, who would merely be determining whether a patient or dispensary operator has met the criteria for a medical exemption from Arizona's drug penalties. In a brief filed last Friday, the ACLU says Horne still has not managed to describe plausible grounds for a successful federal prosecution of state employees, so his argument amounts to warning that the DOJ could bring a case even if it's not legally justified. "Arizona's suggestion that state officials have a credible fear of bad faith prosecution is unpersuasive," it says. The ACLU also cites assurances from Dennis Burke, the U.S. attorney for Arizona, who says he has "no intention of targeting or going after people who are implementing…state law."

So far the DOJ has not joined the ACLU in arguing that there would be no basis for federal prosecution of dispensary regulators. And like Brewer, it has taken no position on whether the AMMA is pre-empted by federal law (although it does cite Brewer's failure to take a stand on that question as evidence that there is no genuine controversy for a federal court to address). But in a brief filed at the beginning of August, the Justice Department says Brewer and Horne "cannot identify a genuine threat of imminent prosecution." Although a May 2 letter (PDF) from Burke noted that people who distribute marijuana remain subject to federal prosecution regardless of what state law says, "nothing in the letter refers to state employees." Furthermore, says the brief, "Plaintiffs identify no prior instances in which the federal government has sought to prosecute state employees for the conduct vaguely described in Plaintiffs' complaint."

Nevertheless, Horne says, the Justice Department has not promised not to prosecute state employees:

They gave no assurance to state employees. They gave no assurance to dispensaries. And they said they were going to vigorously prosecute anyone who is involved in the distribution of marijuana….What unbelievable hypocrites!

Speaking of hypocrisy, Brewer, despite her reputation as a zealous proponent of federalism, is not actually defending Arizona's law. She is not even taking a position on whether the AMMA, which she continues to criticize, should be upheld or overturned, and she is actively blocking its implementation, preventing the state Department of Health Services from issuing licenses to dispensaries. While Horne is right that the Obama administration reserves the authority to prosecute anyone who violates the federal ban on marijuana (leaving even patients unmolested only as a matter of discretion), his insistence on a firm assurance that he will never get is a way to frustrate the will of Arizona's voters while seeming to rail against federal meddling. 

NEXT: Reason.tv: What We Saw at the 2011 Seattle Hempfest

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. …asking for an advisory opinion on the constitutionality of a state law, which federal courts are loath to issue.

    In my world, the court would be a more active check. All legislation passed would have to be stamped constititionally permissible before enacted. In this case, it should provide clarity for the executive and Brewer would have to bow to the will of the people. We can’t keep guessing what has been made illegal.

    Also, in my world, I would sleep on piles of money surrounded by many beautiful ladies.

    1. …..in their world, after you fall asleep, they will take the money and run.

  2. I can hear them over at the DoJ: “Arizona can’t go after the medical pot people; that’s our goddamn job!”

  3. Jan Brewer is an enemy of the people. She clearly forgot the “public servant” part of her job description.

    1. I don’t particulary like Brewer, but she’s actually been pretty good on a lot of issues.

      Outside of failing to veto that stupid immigration bill, since I’ve been back in the state the last couple of years AZ has;

      1 Modified state hunting rules to allow hunting within municipality limits (obviously you still have to obey the season and permit requirements if any) – though munincipalities are still allowed to ovveride that if they desire there is no longer a statewide law prohibiting it.

      2. Fireworks are legal in AZ for the first time in my life.

      3. AZ has open cary, “shall-issue” concealed carry permits, and if you’re over 21 you don’t need a permit to carry concealed.

      While all that originated from the legislature, she has either openly supported these things or at least had the good sense no to oppose them.

      She’s wrong (like a lot of people) on the MMJ issue and this is probably another tactic to get it shot down (like last time) but trying to get this law pre-viewed at the level that will be throwing us in jail isn’t all bad.

  4. Anyone who denies relief to the terminally ill for ideological reasons deserves a seat in Hades just a few rows back from Torquemada.

    1. …but never to be placed ahead of the likes of lincoln, sherman, custer, roosevelt the rotund, roosevelt the cripple, bobby byrd, bobby kenedy, eisenhower, truman, westmoreland, reno et al.

  5. I still don’t understand why ACLU doesn’t want a declaratory judgment on this. Wouldn’t a federal judge’s say-so be a great shot in the arm for states that’ve been on the fence about med mj? And maybe about other things too?

  6. Why even vote when our “public servants” actively thwart the will of the voters. Dont forget this is the second time Az passed this and it still isnt implemented. This is peoples medicine, comfort, and quality of life at stake. Brewer needs to get the hell out of the way.

  7. recall the governor

    How to Recall a Governor | eHow.com

Please to post comments

Comments are closed.