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The Federal War on Marijuana

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Barack Obama and Joe Biden were not the only winners in the November election. Even including the election of the members of both houses of the U.S. Congress, it is on the state level where the vast majority of elections take place.

One thing that is unique about state elections is the inclusion of ballot questions — initiatives, referendums, legislative issues, and constitutional amendments — that voters have to decide. There were 174 such measures on the November ballot. Six of them pertained to marijuana. The results were mixed.

Colorado and Washington legalized marijuana for recreational use, becoming the first two states to do so. A similar measure failed in Oregon.

The Washington measure allows those who are at least 21 years old to buy up to one ounce of marijuana from a licensed retailer. The Colorado measure allows people to possess up to one ounce and permits them to grow up to six plants in a private, secure area for personal use.

Voters in Montana approved restrictions on medical marijuana put in place by the state legislature in 2011.

Arkansas failed to become the eighteenth state to allow medical marijuana. That honor instead went to Massachusetts. Seventeen states had already legalized marijuana for medical use. California became the first state to do so in 1996. Alaska, Oregon, and Washington joined California in 1998. Maine followed in 1999; Colorado, Hawaii, and Nevada in 2000; Montana and Vermont in 2004; Rhode Island in 2006; New Mexico in 2007; Michigan in 2008; Arizona and New Jersey in 2010; Delaware in 2011; and Connecticut in 2012. Medical marijuana has also been legal in the District of Columbia since 2010.

But “regardless of state laws to the contrary, there is no such thing as ‘medical’ marijuana under federal law,” says the White House Office of National Drug Control Policy.

Marijuana is classified as a Schedule I controlled substance under the Controlled Substances Act. As a Schedule I drug, marijuana supposedly meets the following criteria:

A. The drug has a high potential for abuse.

B. The drug has no currently accepted medical use in treatment in the United States

C. There is a lack of accepted safety for use of the drug under medical supervision.

And according to a memorandum issued by the U.S. Justice Department,

The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels.

Accordingly, the U.S. Department of Transportation (DOT) has released an Office of Drug and Alcohol Policy Compliance Notice to make four things “perfectly clear”:

· State initiatives will have no bearing on the department of Transportation’s regulated drug testing program.

· Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used “recreational marijuana” when states have passed “recreational marijuana” initiatives.

· An MRO will not verify a drug test negative based upon information that a physician recommended that the employee use “medical marijuana” when states have passed “medical marijuana” initiatives.

· It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

In June 2011, the Drug Enforcement Administration (DEA) reviewed a petition to reschedule marijuana. But on the basis of its own scientific and medical evaluations and scheduling recommendations from the Department of Health and Human Services, the DEA denied the petition to reschedule marijuana.

Most recently, a federal appeals court rejected a petition to reclassify marijuana from its current federal status as a dangerous drug with no accepted medical use. The reclassification was sought by individuals and three medical-marijuana groups, including Americans for Safe Access, which cited more than 200 peer-reviewed published studies demonstrating marijuana’s efficacy for various medical uses.

There are two potential bright spots in the federal government’s war on marijuana.

First of all, the Food and Drug Administration (FDA) has approved medical use of isolated components of the marijuana plant, such as THC, and related synthetic compounds, such as dronabinol and nabilone.

That is good because the more drugs the FDA approves, the more freedom Americans have. And, it could be argued, as more drugs are approved that mimic the effects of marijuana, we move closer to the legalization of marijuana itself. On the other hand, the FDA could withdraw its approval of any drug or change its drug regulations at any time. It could also recommend that since it has approved drugs that mimic the effects of marijuana, it is not necessary that anyone have access to marijuana.

Second, according to Justice Department guidelines, “It is likely not an efficient use of federal resources to focus enforcement efforts on individuals with serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law or their individual non-commercial caregiver.”

However, because the guidelines also make clear that “persons who are in the business of cultivating, selling, or distributing marijuana, and those who knowingly facilitate such activities, are in violation of Federal law, and are subject to Federal enforcement action, including potential prosecution,” Americans are still subject to the whims of presidential administrations and federal prosecutors.

Especially when high-profile anti-marijuana campaigns can sway public opinion. And especially when they are undertaken by members of the Kennedy family.

So, regardless of any “good” Justice Department guidelines, the federal government is still waging war on marijuana. Just last month, the largest marijuana seizure in history took place at an Arizona border crossing. U.S. Customs and Border Protection officers seized 600 bales of marijuana weighing 14,151 pounds. The previous record was 12,000 pounds of marijuana — at the same port of entry in 2010.

To the libertarian, using marijuana for medical or recreational use is a personal-freedom issue. It doesn’t matter if marijuana is just as dangerous as heroin and cocaine. It doesn’t matter if it has no medical value whatsoever. It doesn’t matter if it is a gateway drug. It doesn’t matter if it is addictive. It doesn’t matter if smoking marijuana makes one suicidal. It doesn’t matter if smoking it lowers IQ scores. It doesn’t matter if smoking it could be deadly. It doesn’t even matter if everyone who obtains medical marijuana is perfectly healthy and just wants to get high.

In a libertarian society, that is, in a free society, there would be no DEA or FDA, no Office of National Drug Control Policy or Department of Health and Human Services, no drug schedules or Controlled Substances Act, and no memorandums or guidelines from any part of the federal government regarding drugs or drug use.

But the federal war on marijuana is not even a libertarian issue. Every American — regardless of his political persuasion or view of the merits and demerits or marijuana — should be opposed to the federal war on marijuana and appalled by it for the simple reason that the federal government has been granted no authority by the Constitution to wage war on marijuana.

Although all Americans should recognize that the Constitution has ambiguous clauses such as the Commerce, General Welfare, and Necessary and Proper clauses that allow the federal government to circumvent the Constitution while still claiming constitutional justification for its actions, they should also acknowledge that by no stretch of the imagination can the Constitution be made to authorize a federal war on marijuana.

The federal war on marijuana is a war on the Constitution, the Tenth Amendment, States’ Rights, and federalism. It should be opposed by all patriotic Americans as destructive to the whole American system of government, even if they don’t share the libertarian view that it is also destructive to individual liberty.

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