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.