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Cliff Rees, Public Health Law Network: Medical Marijuana and Public Health in the 21st Century

Medical Marijuana and Public Health in the 21st Century
bCliff Rees, September 2, 2011

Legal developments move rapidly in the increasingly complex field of medical marijuana law. Since we first blogged on medical marijuana laws in May 2011, at least four significant events have occurred:

1) Delaware Governor Jack Markell signed SB 17 into law on May 13, 2011, making Delaware the 16th state to enact a medical marijuana law similar to other state statutes allowing limited distribution of medical marijuana by licensed nonprofit “compassion centers” for seriously ill persons recommended by their physicians.

2) The Drug Enforcement Administration of the U.S. Department of Justice (USDOJ) denied a petition on June 21, 2011, filed nearly 7 years previously, to initiate rulemaking proceedings to reschedule marijuana from Schedule I of the federal Controlled Substances Act (not accepted for medical use) to a Schedule II, IV or V drug. Rescheduling marijuana would have made it less likely that users of marijuana for medicinal purposes would be subject to federal prosecution.

3) Arizona Attorney General Thomas C. Thorne filed a federal suit in late May, 2011 on behalf of the State of Arizona and Governor Jan Brewer against  USDOJ and several private marijuana dispensaries. The suit seeks a declaratory judgment either that:

  •  the Arizona Medical Marijuana Act (AMMA) complies with federal law and should be implemented and enforced in accordance with its terms, thereby avoiding the threat of federal prosecution of state employees implementing the law,  or
  •  the AMMA is preempted in whole or in part because of irreconcilable conflict with federal law. [Insert link to the Complaint here]; and

4) The USDOJ issued a memo on July 29, 2011 reiterating the Obama Administration’s  position that the federal government would not prioritize prosecution of marijuana under state medical marijuana laws but would also not preclude the possibility of prosecution under the federal Controlled Substances Act especially for commercial growers or distributors of medical marijuana.

Perhaps most interesting to public health law practitioners is the Arizona lawsuit. Press reports from Arizona indicate the Governor and Attorney General both opposed the AMMA but weren’t  attempting to thwart the will of the voters who passed the AMMA in Proposition 203 on the November, 2010 Arizona ballot (signed into law by the Governor on December 14, 2010). If the litigation proceeds, a decision from the federal court could provide legal guidance to Arizona and other States with medical marijuana programs on the thorny federal constitutional issue of whether the exercise of  public health jurisdiction at the state level is preempted by the exercise of federal power. A settlement or other disposition of the case, however, could apply only to the Arizona medical marijuana program. That sort of result would of course provide no legal precedent or resolution of legal uncertainty for the 15 other States and the District of Columbia currently conducting medical cannabis programs.

In my previous life as a public health attorney for the State of New Mexico, I participated in the political process that led to the enactment of New Mexico’s Compassionate Use Act in 2007 legalizing the use of medical marijuana. Some opposed the bill  due to the legal uncertainty created by the apparent conflict between state and federal law, and others opposed because they saw compassionate use medical marijuana laws as the “nose of the camel under the tent” for those who had a larger agenda of ultimately decriminalizing marijuana for recreational as well as medicinal use.

Professor J. Herbie DiFonzo of the Hofstra School of Law uses the term “cultural federalism.” It describes the phenomenon experienced when citizens are divided between the popular support expressed on behalf of state medical marijuana programs and the federal government’s continued opposition through, among other tactics, veiled threats of prosecution against public employees who implement the programs enacted at the state level. The Western Region of the Public Health Law Network will explore this and other topics further at its Regional Public Health Law Conference to be held on the campus of Arizona State University in Tempe, AZ on October 6, 2011.

This information was researched and prepared by Cliff Rees, practice director for the Public Health Law Network – Western Region.

 The Public Health Law Network provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

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