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A Layperson's Guide to the Commerce Clause and Cannabis


(by Byron Andrus, NORML Foundation legal intern and second year law student at George Mason University School of Law)

The 10th Amendment reads rather plainly: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Essentially, this means that the powers not granted to the federal government by the Constitution, which are very limited in number, are left to the state legislatures. This may seem obvious, but judges and constitutional scholars have continuously debated about what “the powers not delegated to the United States” are.

Controversially, the power of the federal government to regulate interstate commerce granted to it by Article 1, Section 8 of the Constitution has been interpreted by the Supreme Court to mean that the feds may regulate nearly anything that has an effect on interstate commerce. In the landmark case of Gonzales v. Raich, the Supreme Court ruled that a woman who grew marijuana plants on her property for her own medical use was participating in “interstate commerce.” Justice Clarence Thomas, in his dissent, astutely observes, “no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.” This common sense reading of “interstate commerce” would prevent the federal government from harassing peaceful citizens who are in compliance with state laws, and is a good example of a “10th Amendment” approach to the issue of marijuana legalization.

Gonzales v. Reich: http://scholar.google.com/scholar_case?case=15647611274064109718

...Ms. Raich did not intend to buy, sell, trade, or give away her marijuana, she only intended it to be used for her own medical purposes—despite this and the clear omission by the founders of a federal primacy regarding states’ economies under the 10th Amendment. The real world application of the Gonzales decision means that those with serious illnesses like Ms. Raich are not legally permitted to grow and consume their own medicine—even if state laws allow for such.

The Commerce Clause has also been invoked when armed federal agents decide to raid dispensaries in states where medical marijuana is legally permitted to be sold. The latest memo from the Department of Justice, known as the ‘Cole Memo’, suggests that the federal government will continue to raid dispensaries, even ones that are operating in accordance with state laws. This contradicted a 2009 memo written by the former Deputy Attorney General David Ogden, in which he suggested that federal resources should not be wasted on marijuana enforcement as long as dispensary owners remained in “clear and unambiguous” compliance with state law. This reversal in policy now suggests that the federal government can target those involved in the medical marijuana industry, even those in compliance with state law.

The Frank-Paul bill, HR2306, corrects the unconstitutional ruling that the federal govt. may control what a person grows in his or her own backyard when that person is in compliance with state law:


The other issue at hand, tho, is the Supremacy Clause, i.e. federal law trumps state law. As we know from history, the application of this clause has good and bad effects (forcing the end of slavery was good, forcing states to prohibit cannabis is bad.)

The irony in this situation is that racism is what made cannabis de facto illegal. And this racist application of federal power is now being upheld by a President who would have been subjected to the harshest application of this law, simply because of the color of his skin.

When alcohol prohibition was enacted in 1919, the federal govt. felt it had to have a constitutional amendment because, at that time in American history, judges used the 10th amendment as a way to stop federal regulation of state-level activities and MEDICAL practices were considered outside of the realm of Congressional authority. Some doctors used alcoholic substances medicinally (as now, a glass of red wine is often considered useful for health and a doctor may tell someone this information.)

In 1930, the Federal govt. created a new bureaucracy, the Federal Bureau of Narcotics, to get around the reality that the federal govt. could not legislate medicine (i.e. drugs cannot be made criminal at the federal level.)

Prohibition of alcohol was repealed in 1933. Harry Anslinger, the head of the new Federal Bureau of Narcotics, launched an all-out racist propaganda war against cannabis, invoking the fear that cannabis would make black men think they are equal to white men. This is the legacy that Obama currently upholds.

Harry Ansligner: “Reefer makes darkies think they’re as good as white men.”

In 1937 Anslinger brought the Marijuana Tax Act to Congress. It has been prepared IN SECRET for two years. The lone doctor (who was the legal council for the AMA) testifying at the hearing noted this fact - that no one within the medical profession was consulted. This doctor also opposed the use of the word "marijuana" since it was not a legal term - the correct term for the substance in question is and was cannabis. Doctors regularly prescribed cannabis tinctures made by the likes of Eli Lily and Co. at the time. The doctor noted the lies of Anslinger and his yellow-journalist media whore, Citizen Hearst, but the Congressional committee, obviously, was not too interested in the niceties of fact or medical evidence. The more things change...

They were so disinterested, in fact, that they attacked the doctor. Of course, DuPont and Hearst probably had a lot more money than that doctor, and Congress seems to have been as full of idiots and whores for big business then as now. (Hello, Lamar Smith.)

On the basis of the lies perpetuated by Anslinger, with Hearst to create the media propaganda (sort of sounds like Murdoch and Fox News today, doesn't it?) cannabis was made illegal at the federal level.

The bill was disguised as a tax revenue bill that was only brought before 6 members of Congress in the Ways and Means committee. This allowed the bill to bypass the House and move to the Senate Finance Committee. The heads of both committees were allies of DuPont.

The bill that was created in secret for two years, that was bolstered by false stories created by Hearst and published in his newspapers, that had no evidence to back up its claims, that was opposed by the Seed Oil industry, by the AMA, and, otherwise, largely unnoted because it was about some mysterious "marijuana" instead of the plant, hemp, and the medicine, cannabis, by which is was known in this nation, was passed without a roll call vote.

Anslinger then became the defacto enforcer for the DuPont Company to prevent any licensing of the hemp industry in the U.S, as well as the enforcer for doctors who would prescribe medical cannabis for patients. In that same year, DuPont filed a patent for a synthetic product, Nylon, whose greatest competition was hemp.

Now we have the Commerce clause providing the cover for industries that do not want competition, and willing collaborators spouting lies in the federal govt. in order to do the bidding of the pharmaceutical industry, the oil/petrol industry (hello, Lamar Smith), as well as the alcoholic beverage and cotton industries.

just fyi.

PBS Documentary: Clearing The Smoke

from Montana PBS

link to video: http://watch.montanapbs.org/video/1825223761

"The cancer-killing properties of marijuana were the subject of discussion in a PBS documentary that aired this week to little media fanfare.

While using marijuana to kill cancer may sound like a wild claim to some, it struck Dr. Prakash Nagarkatti as a great idea. In his studies as professor of pathology and microbiology for the University of South Carolina, he tested synthetic cannabis drugs on cancer cells and developed a formula that was able to completely eradicate cancer cells in a test tube.

A follow-up on mice afflicted with cancer found that up to 30 percent in the test group completely rejected their disease, while others had their tumors significantly reduced. The same drug is now being tested on humans with Leukemia.

But it’s not just Dr. Nagarkatti who sees the medical value of marijuana: it’s the whole pharmaceutical industry. And that’s another point the documentary makes, examining the patents various companies have filed, and what they claim marijuana-based drugs could one day be used to treat."

(via RawStory)

New Research Points to Lessons from Dutch Cannabis Policy


Robert J. MacCoun, a professor at UC Berkeley’s Goldman School of Public Policy and the UC Berkeley School of Law, said that the well-documented Dutch experience with marijuana shops may provide important information for other jurisdictions wrestling with how to deal with cannabis.

Findings include:

Dutch citizens use cannabis at more modest rates than many of their European neighbors.

Dutch youth report high rates of availability of cannabis, but not as elevated as reported rates in the United States and several other countries.

The Dutch “continuation” rate for using marijuana from a causal experimentation in youth to regular usage in adulthood (ages 15-34) is fairly modest by international standards

Past-year cannabis use among Dutch 15-to-24-year-olds dropped from 14.3 to 11.4 percent between 1997 and 2005.

Dutch cannabis users are more likely to be admitted for substance abuse treatment than their counterparts in most European countries, while the United States reports four marijuana treatment admissions for every one admission in the Netherlands. It is not clear whether this reflects a greater investment in treatment by Dutch officials, or the higher potency of Dutch marijuana.

In the United States, about half of those admitted for treatment for marijuana addiction happen through criminal justice referrals. In the Netherlands, such referrals account for closer to 10 percent.

full journal article here: http://onlinelibrary.wiley.com/doi/10.1111/j.1360-0443.2011.03572.x/abstract

Dr. Kenneth Hendrickson: Legalizing Marijuana May Be For the Best


An editorial from a Houston, TX doctor.

I don't use cannabis. I did during college, but it has been over 20 years since my last toke and I have no plans to return. I have familial and contractual obligations that make breaking the law with cannabis out of the question for me.

That being said, I understand that cannabis is a permanent part of our society. I have also come to believe that our current cannabis laws and policies do not achieve reasonable public health goals, are cost inefficient, are corrosive to the Constitution, and have contributed to the destabilization of governments around the world and communities throughout the United States.

...I do not support drug abuse. In reforming drug laws including the legalization of marijuana, I believe we can achieve better public health and public security results than we do now. My goals are the same as most people: reduction in health hazards associated with drug use including marijuana; special focus on keeping young people and children from beginning drug habits; reduction in drug related crimes; stabilization of neighbors like Mexico by reducing and eventually eliminating the power of organized crime.

I also wish to strengthen our Constitutional liberties and work for a more efficient government here at home. These goals can be better achieved not with heavy handed prohibitionist policies, but with a blended mix of law enforcement, public education, treatment and rehabilitation of drug addicts, and in some instances like marijuana legalization.

read the full editorial. share.

Federal agency blocks FDA-approved marijuana research for veterans

(from Oct. 2011)


The U.S. Department of Health and Human Services (HHS) has blocked a pilot study to examine the benefits of marijuana for veterans with treatment-resistant post-traumatic stress disorder (PTSD).

...“Hundreds of veterans in medical marijuana states already report using marijuana to control their PTSD symptoms,” MAPS said in a statement. “The growing number of service members returning from Iraq and Afghanistan with combat-related trauma combined with large numbers of treatment-resistant veterans highlights the pressing need for research into additional treatments for PTSD.”

Recently, a study conducted by Haifa University in Israel found that rats which were treated with marijuana within 24 hours of a traumatic experience successfully avoided any symptoms of PTSD.

The Drug Enforcement Administration has denied researchers requests to obtain licenses to grow marijuana, claiming that the National Institute on Drug Abuse (NIDA) — overseen by the HHS — can be the only one to supply marijuana for Food and Drug Administration (FDA)-regulated research. NIDA’s monopoly on the supply of marijuana for research means the study has no way of moving forward, even though it was approved by the FDA.

MAPS and a law firm that represents pharmaceutical-industry clients has offered pro bono representation to MAPS to challenge the NIDA monoply.

DEA faces federal lawsuit for blocking cannabis research:


CBD cannabinoid COMPLETELY prevents neuropathic pain from breast cancer chemo


The headline in the Jerusalem Post says "may" but the researcher says CBD DOES prevent this sort of debilitating pain in their animal studies. Spain has already performed studies on CBD for brain cancer in humans in a very small study.


“We found that cannabidiol completely prevented the onset of the neuropathic, or nerve pain caused by the chemo drug Paclitaxel, which is used to treat breast cancer,” said (Sarah Jane) Ward, who is also a research associate professor in Temple’s Center for Substance Abuse Research.

Ward became interested in this current study after attending a conference in which she learned about a pain state that is induced by chemo-therapeutic agents, especially those used to treat breast cancer, which can produce really debilitating neuropathic pain.

Cannabidiol has also demonstrated the ability to decrease tumor activity in animal models, said Ward, which could make it an effective therapeutic for breast cancer, especially if you “combined it with a chemo agent like Paclitaxel, which we already know works well.”

According to Ward, there are currently about 10 clinical trials underway in the United States for cannabidiol on a range of different disorders, including cannabis dependence, eating disorders and schizophrenia. Because of this, she believes it will be easier to establish a clinical trial for cannabidiol as a therapeutic against neuropathic pain associated with chemo drugs.

link to the abstract: http://www.ncbi.nlm.nih.gov/pubmed/21737705

NORML reported on the therapeutic properties of CBD in 2007


Yet another reason to repeal prohibition - the existence of health benefits to cannabis as a whole (THC and CBD have health-care applications) puts the lie to the DEA claim that no health benefits exist.

further proof that some parts of our govt. are resistant to evidence and lack the moral capacity to act upon this evidence to the betterment of this society.

Reefer Madness (N.Y.Times)


"MARIJUANA is now legal under state law for medical purposes in 16 states and the District of Columbia, encompassing nearly one-third of the American population. More than 1,000 dispensaries provide medical marijuana; many are well regulated by state and local law and pay substantial taxes. But though more than 70 percent of Americans support legalizing medical marijuana, any use of marijuana remains illegal under federal law.

President Obama has not publicly announced a shift in his views on medical marijuana, but his administration seems to be declaring one by fiat. The head of the Drug Enforcement Administration, Michele M. Leonhart, a Bush appointee re-nominated by Mr. Obama, has exercised her discretionary authority to retain marijuana’s classification as a Schedule I drug with “no currently accepted medical use in treatment in the United States.” And the pronouncements on marijuana, medical and otherwise, from Mr. Obama’s top drug policy adviser, R. Gil Kerlikowske, have been indistinguishable from those of Mr. Bush’s.

None of this makes any sense in terms of public safety, health or fiscal policy. Apart from its value to patients, medical marijuana plays an increasingly important role in local economies, transforming previously illegal jobs into legal ones and creating many new jobs as well, contributing to local tax bases and stimulating new economic activity. Federal crackdowns will not stop the trade in marijuana; they will only push it back underground and hurt those patients least able to navigate illicit markets.

At the federal level, there have been few voices of protest. Senior Democrats on Capitol Hill shy away from speaking out. Republicans mostly ignore the extent to which anti-marijuana zealotry threatens core conservative values like states rights, property rights and gun ownership."

The Alice in Wonderland Drug War: Prohibition is the Cartels' Best Ally


Nice article, via New Zealand, on the state of the current drug war, by Peter Huck.

"It would be hard to point to any public policy in the US that causes so much clear and obvious friction between the federal Government and almost a majority, population-wise, of states," argues Allen St Pierre, executive director of the National Organisation for the Reform of Marijuana Laws.

(Cato Institute) Senior fellow Ted Galen Carpenter argued the savagery of Mexico's drug wars, with 42,000 dead since 2006, had made the US less safe. "Depending on the drug, roughly 90 per cent of the retail price exists because the drugs are illegal."

Legalising cannabis would remove cannabis profits, said Jones. "We would be striking a larger blow at those cartels than any law enforcement effort ever could. What's our exit strategy for the war on drugs?"

Even if the DEA does shutter pot clinics, any victory could be pyrrhic. St Pierre believes Washington's "no quarter" stance on cannabis clashes with grassroots realities. He argues the US has crossed a Rubicon, citing more cannabis-tolerant baby boomers, a need for tax revenue in a deep recession, easy access to cannabis information via the internet and empathy towards the infirm who use the drug.

Prohibition of alcohol ended during the great depression because the FDR administration thought such a move would create jobs and taxable revenue.

Estimated annual revenue from medical cannabis in the U.S., based upon lawsuits against the new govt crackdown: $1.5 billion to $4.5 billion.

Estimated annual sales tax, from the state of California: $50 to $100 million.

Even if a repeal of prohibition caused the price of cannabis to drop, the state could still collect tax revenue adjusted to move the profit from the sale of cannabis from cartels to states in order to fund tax-based services.

But, Huck notes, via Carpenter, that the greatest barrier to any change in prohibition is that politicians are afraid of being branded soft on drugs - because opportunists take such opportunities to attack.

Instead, advancements toward ending the war on drugs take place in the marketplace and at the ballot box when citizens have the opportunity to engage in direct democracy.

As St. Pierre noted, 16 states and DC have passed medical marijuana laws. Of these, approximately 2/3 of the changes in the law occurred because of voters. Of these, an overwhelming majority of voters in these states passed laws with more than 55% of the vote.


These 16 states and D.C. comprise nearly half of the voting population of the U.S. (based upon census data for the voting population.) And that number doesn't adequately gauge the sentiments of the entire voting population because many states do not allow initiatives on their ballots to put this issue to a vote via direct democracy.

Support for medical marijuana, across the U.S. continues to poll at 77%. This support is from all demographic categories: age, gender, political affiliation and region.

We are definitely through the looking glass when the Drug Czar continues to claim there is no medical value to marijuana while 77% of the population disagrees and close to a majority of the voting population has taken action to put that disagreement into law.

What number is the tipping point at which the federal govt. can no longer continue to tout enforcement of laws that so many citizens find unlawful?

Legalizing Marijuana Reduces Traffic Fatalities


From a study by the Institute for the Study of Labor

Opponents of medical marijuana often focus on the social detriment to making America’s most valuable cash crop available to those approved by doctors, arguing that medical marijuana legalization makes it easier for teens to buy pot and that they’ll soon move to more dangerous drugs. They also suggest that legalization would increase the number of vehicle accidents — and that very argument was one of the main reasons why California voters did not approve full legalization in 2010.

Studying data from the National Survey on Drug Use and Health, researchers also found that legalizing medical marijuana did, in fact, drive up usage among adults. But contrary to medical marijuana critics’ claims, they were unable to find evidence of it growing the number of minors on the drug.

A further analysis of data from the Fatality Analysis Reporting System, spanning from 1990 to 2009, revealed that states which legalized medical marijuana saw a decline in alcohol consumption. A decline in traffic fatalities was a direct side effect of that.

Traffic fatalities are the leading cause of death for Americans age 35 and under.

It seems the real problem with legalizing marijuana is that it would negatively impact the alcohol industry and reduce traffic fatalities. OH NOES!1!! think about the children!

Colorado To Ask DEA to Reschedule Cannabis


Governor Lincoln Chaffee of Rhode Island and Governor Christine Gregoire of Washington have petitioned the federal government to change the schedule of marijuana under the Controlled Substances Act, a move they claim will remove the conflict between federal drug laws and state laws that allow the establishment of medical marijuana dispensaries. Colorado will file its own request before the end of the year.

Shortly after filing the petition, Governor Peter Shumlin of Vermont signed on as well. Colorado Governor John Hickenlooper apparently has no plans to sign the petition, but Colorado will file its own request to reclassify marijuana.

“This is a good first step, in that it shows that politicians are catching up with the scientific consensus, which is that marijuana has medical value,” said Rob Kampia, executive director of the Marijuana Policy Project. “If it succeeds, federal law will finally acknowledge that fact. Rescheduling marijuana, however, will not change the federal penalties for possessing, cultivating, or distributing medical marijuana,” he said in a prepared statement. “That is the change we really need. These governors should be insisting that the federal government allow them to run their medical marijuana operations the ways they see fit, which should include selling medical marijuana through state-licensed dispensaries.”

A recent editorial from Bakersfield called on CA Gov. Jerry Brown to join the petition submitted by Gregoire and Chaffee. The editorial noted:

As recently as July, the DEA decided against reclassifying marijuana, but the decision was primarily based on old studies. A number of medical associations and organizations support the reclassification, including the American Medical Association, which reversed its position because current law limits clinical research.

kudos to state pols for working to change bad federal laws.
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