Suing the Feds

Over at Points: The Blog of the Alcohol and Drugs History Society, guest blogger Allen Hopper of the ACLU discusses the issue of the way the federal government is conducting their anti-state medical marijuana offensive and how that could result in a court case.

This is the issue we were discussing in 10th Amendment Case recently, and I think that perhaps Allen does a better job than I of explaining why this potential lawsuit is valid, despite established Supreme Court case law giving the feds the authority to outlaw cannabis.

So, what are these threatening new letters really about? In a letter to Attorney General Holder last week, the ACLU suggested that the federal government is improperly attempting to influence the states’ legislative processes. The ACLU points out that several of these letters landed on state officials’ desks just as new state laws regulating medical marijuana were about to be enacted. The Governor of Washington, for instance, vetoed a popular medical marijuana bill after receiving a letter from U.S. Attorneys threatening to prosecute state officials who license and regulate dispensaries. If the ACLU is right about the real purpose behind these U.S. Attorney letters, the feds may be opening a can of worms they’ll wish they hadn’t. A federal lawsuit put on hold in 2009 after the DOJ issued the Ogden Memo could be reopened, with court-ordered discovery into federal enforcement practices.

It isn’t at all about whether marijuana is illegal at the federal level, but rather whether the federal government is improperly enforcing the law selectively in order to interfere with the state’s legislature. That’s a legitimate 10th Amendment issue.

This lawsuit would be a continuation of one filed some time ago by the ACLU (later temporarily put on hold due to the Holder memo), and which the courts have already refused government’s motion to dismiss.

At issue was whether the government had selectively enforced federal marijuana laws in California, purposefully targeting those organizations operating in full compliance with state laws and most closely collaborating with local governments; the lawsuit asserted that such raids were an attempt to undermine state medical marijuana laws and force the state to re-criminalize medical marijuana.

It’s the selective enforcement that opens the door to this legitimate legal challenge. That doesn’t mean that it’ll win if pursued, but it is completely separate from the Raich decision.

[Thanks, Amy]

In other lawsuit news, Groups Sue Feds Over Marijuana Rescheduling Petition Delay

As many of you know, one of the big tricks the federal government uses to maintain its death-hold grip on outlawing marijuana is to have systems in place for making change and then using delaying tactics and internal revolving door appeal systems to keep the challenge in limbo for years. Usually the courts are hesitant to get involved as long as there is a “process” going on.

Inevitably, however, there is a limit that even the courts will accept.

A coalition of medical marijuana and drug reform groups filed suit in federal court in Washington, DC, Monday in a bid to force the government to act on a rescheduling petition that has languished at the DEA for nearly nine years. The lawsuit asks that the government respond to the petition within 60 days.

The petition argues that marijuana has accepted medical use and should thus be removed from Schedule I of the Controlled Substances Act. Sixteen states and the District of Columbia currently allow for the medicinal use of marijuana, and an ever-increasing mountain of evidence has shown marijuana to be effective in treating a number of diseases and conditions.

The groups filing the lawsuit include the Coalition for Rescheduling Cannabis (CRC), Americans for Safe Access (ASA), Patients Out of Time, NORML, and California NORML. Also included are medical marijuana patients William Britt, Kathy Jordan, Michael Krawitz, and Rick Steeb.

The first rescheduling petition in 1972 was stalled for 22 years.

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