Marijuana and its road back to acceptance

The use of marijuana stretches back more than 2,000 years. For most of American history, marijuana was legal under both federal and state law. The decline in the use of medical marijuana was accelerated by the development of other drugs, such as aspirin and opium-derived drugs. Thus, the advances in medicine helped to replace marijuana in the treatment of pain and other medical conditions.

In 1970, President Nixon signed the Comprehensive Drug Abuse Prevention and Control Act, which includes the Controlled Substances Act, as part of the “war against drugs.” Congress classified marijuana as Schedule I drug because of its high potential for abuse, the lack of accepted medical use and the absence of accepted safety standards in medically supervised treatment.

Therefore, the manufacture, distribution or possession of marijuana became a federal criminal offense.

But as Bob Dylan warbled some years ago “The Times They are A-Changin’.” The national movement to legalize medical marijuana began in California in 1996 with the passage of the Compassionate Use Act initiative, which amended the California Constitution. Although the substantive and regulatory detail varies among states, 23 states now allow qualified individuals to possess and use “medical marijuana” under state law. Additional states are considering doing the same.

In 2012, Colorado and Washington went further when they legalized the “personal” use of marijuana. In 2014, Alaska, Oregon and the District of Columbia followed suit in adopting similar laws. The U.S. Department of Justice (DOJ) is responsible for enforcing the Controlled Substances Act prohibition. The increased legalization of marijuana has prompted it to issue a series of memorandums (2009, 2011, and 2013) essentially deferring to state enforcement.

But nothing in any of memorandums purports to legalize marijuana or prevents the DOJ from taking action regardless of state law.

On Oct. 28, 2014, the DOJ issued its most recent memorandum on marijuana and tribal lands. Native American tribes will be permitted to grow and sell marijuana on sovereign tribal lands, even in those states prohibiting marijuana, providing the tribes establish strict regulatory guidelines that protect federal priorities, such as preventing the distribution to minors or possession or use on federal property.

The DOJ expects those states and tribes legalizing marijuana, including medical marijuana, to establish strict regulatory schemes that protect the federal priorities. The regulatory schemes must be tough in practice, not just on paper, and include strong, state-based and tribal enforcement efforts, backed by adequate funding. Based on assurances that an appropriately strict regulatory system exists, the DOJ defers its right to challenge medical marijuana legalization.

On Dec. 14, 2014, Congress passed the 2014 Continuing Resolution Omnibus spending bill. It prevents the DOJ, including the FBI and Drug Enforcement Agency, from interfering with state medical marijuana laws. The DOJ is prohibited from using federal funds to prevent states from implementing state laws that authorize the use, distribution, possession or cultivation of medical marijuana. Although cheered by medical marijuana advocates, marijuana is still illegal under federal law. No state has the power to authorize the violation of federal law.

Using its authority to control spending is an inept strategy for dealing with medical marijuana. It undermines respect for the law. Congress should change the law if it wants to change the medical marijuana policy.

On Dec. 18, 2014, Nebraska and Oklahoma asked the Supreme Court of the United States to allow them to file an “original action” in the Court — “original” in the sense that the case starts in the Supreme Court. The motion claims that the state of Colorado has created a dangerous gap in the federal drug control measures enacted by Congress. This gap allows marijuana to flow into their states and in the process undermines the federal ban as well as their state bans. Nebraska and Oklahoma argue that Colorado law, which allows the personal use of marijuana and creates a system for growing, marketing and taxing marijuana, is pre-empted by federal law, and therefore should be found unenforceable.

No guarantee exists that the court will grant the Nebraska-Oklahoma motion. If it doesn’t, that is the end of their legal battle to get the court to hear their original action claim.

On the other hand, it may be just the start of the political fight in the next Congress to get the federal government to change or enforce the federal law.