1. The central problem with enacting the "New Jersey Compassionate Use Medical Marijuana Act" (S-119, A-804) is not marijuana. It is the deliberate indifference exhibited by New Jersey Government – the Acts promoting State legislators and Governor Corzine - to the adverse consequences of their conduct on our basic democratic government and the rights of others. Furthermore, any participation resulting in its enactment appears to be not only unlawful but criminal. Even New Jersey's AG Milgram seems susceptible as she has given the state's behavior an unsubstantiated and unknowable thumbs up sound bite. In sum, certain New Jersey politicians appear to be creating a narco-state by substituting their own arbitrary governance for the rule of law.
2. The New Jersey Compassionate Use Medical Marijuana Act also seems to be posing problems for President Obama. Congress makes the law and the President executes the law. In line with his Executive power, the April 11, 2009 California’s Valeo Times-Herald noted President Barack Obama campaigned on a platform of "change" as it pertains to the way Washington governs U.S. marijuana policy. However, the paper also reports U.S. Attorney General Eric Holder reaffirmed, in opposition to his duty to enforce the law, that he will not authorize federal justice resources to target or prosecute medical cannabis users or providers that are compliant with state law. Holder's statements clarified earlier remarks he made when he said that the Justice Department would uphold President Obama's campaign pledge not to use the power of the federal government to circumvent state medical marijuana laws.
Since then, however, President Obama seems to have realized he was violating the separation of powers doctrine because, through the Department of Justice, he signaled he will not restrain federal prosecutors targeting medical marijuana providers. Any lingering hopes that the new Administration would implement change in this area were blasted April 17 when U.S. Attorney Thomas O'Brien forwarded to District Judge George Wu a letter from DOJ clarifying Obama Administration policy.
3. JUNE 07, 2009 UPDATE:
AG HOLDER THUMBS HIS NOSE AT CONSTITUTION, CONGRESS ,AND THE SUPREME COURT
GWU Constitutional law professor Turley has had it right from the beginning.
Those who seek to capitalize on Holder's mendacity would do well to remember that those who profit from it today may be the victim of it tomorrow.
On Friday, June 6, 2009, News 4 New Mexico (text & Video), noting "medical marijuana is illegal under Federal law," asked AG Holder, about federal raids on local growers. Holder answered:
1. The focus of the Administration is on traditional forms of large drug trafficking and those sanctioned and acting consistent with state law and given limited Federal resources "will not be an emphasis for this administration"
Holder's words are duplicitous. His statement enforcement "will not be an emphasis" demonstrates his knowledge that he lacks Constructional authority to refuse to effect the will of Congress concerning a class of case, but uses the word "emphasis" as a wink and a nod to communicate he will do what he can to ignore both Congress and the U.S. Supreme Court. In effect he is both a usurper and possibly a criminal conspirator.
2. Asked if he supports federal legislation legalizing "medical" marijuana Holder said "that is something for the states to decide."
The second statement is frivolous and lacks any foundation since the U.S. Supreme Court has twice ruled on the issue. AG Holder’s hypocrisy and perhaps cowardice is plain as AG Holder must also know the Congress has provided him with the power to remove Marijuana from its Schedule I prohibition for medical use.
The views expressed herein remain unchanged.
Unfortunately, as states continue to attempt to implement medical marijuana laws the erosion of the Supremacy Clause and the doctrine of Federalism continues to take place.
The irony is this. If after over a 150 years of struggle these states are allowed to succeed, incorporation of the Bill of Rights, everything from free speech, the right to bear arms to Due Process and “Jim Crow” are again at issue.
Disagree? Take your best shot because silence is consent.
Before responding, however, you might want to look at the reasoning below:
I. INVOLVEMENT IN OR FACILITATING THE PRODUCTION, DISTRIBUTION OR CONSUMPTION OF MARIJUANA FOR ANY PURPOSE, INCLUDING MEDICAL USE, IS A FEDERAL CRIME.
II. ANY NEW JERSEY LEGISLATION IS INVALID AS STATE GOVERNMENTS HAVE NO LEGITIMATE POWER FROM WHICH TO AUTHORIZE OR REGULATE MARIJUANA USE.
III. NEW JERSEY LACKS BOTH THE AUTHORITY AND COMPETENCE TO DETERMINE WHETHER MEDICAL MARIJUANA IS EITHER A "LEGAL" MEDICINE OR A "SAFE" MEDICINE.
BACKGROUND: THE CONTROLLED SUBSTANCES ACT ("CSA")
The main objectives of Title II of the Comprehensive Drug Abuse Prevention and Control Act., the CSA, are to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances. Gonzales v. Raich, 545 U. S. 1, 12 (2005) [pdf. volume] . ... Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels. Vol. 545 U. S. 12-13 ... To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U. S. C. §§ 841(a) (1), 844(a). The CSA categorizes all controlled substances into five schedules. § 812. The drugs are grouped together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body. §§ 811, 812. the CSA and its implementing regulations set forth strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping. Ibid.; 21 CFR § 1301 et seq. (2004). Vol. 545 U. S. 13.
I. INVOLVEMENT IN OR FACILITATING THE PRODUCTION, DISTRIBUTION OR CONSUMPTION OF MARIJUANA FOR ANY PURPOSE, INCLUDING MEDICAL USE, IS A FEDERAL CRIME.
FACT: In enacting the CSA, Congress classified marijuana as a Schedule I drug. 21 U. S. C. § 812(c). ... Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b) (1). . ... By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study. §§823(f), 841(a) (1), 844(a); see also United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 490 (2001) (pdf). Vol. 545 U. S. 14.
FICTION: "States are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law; therefore, compliance with this act does not put the State of New Jersey in violation of federal law." S-119 (2) (d).
The above statement is a fatally flawed combination of half-truth, false Analogy and faulty cause and effect. The first part of the statement that "States are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law" may only be partially accurate. For instance, state judges are required to enforce the U.S. constitution. In terms of "medical" marijuana:
"[T]he state does not punish a violation of the federal law 'as such,' it can only reach conduct subject to the federal criminal law by incorporating the conduct into the state law." ... "we think judicial enforcement of federal drug policy is precluded in this case because the act in question -- possession of medical marijuana -- does not constitute an offense against the laws of both the state and the federal government. Because the act is strictly a federal offense, the state has "no power to punish." Garden Grove v. Superior Court, pg. 24,26 (pdf file).
It is both a false analogy and faulty cause and effect to say that (1) since NJ lacks the authority to enforce a solely federal law or prosecute the violators of that law it follows that "compliance with this act does not put the State of New Jersey in violation of federal law." Assuming New Jersey has no authority to enforce and prosecute a purely federal law means just that. While A-804's enactment may not violate State law, it does not follow the government of NJ and its state actors have no federally imposed obligation to comply with federal law and are thus free to violate federal law. To the contrary. Because A-804 facilitates the criminal use of, or participating in the actual use of marijuana its enactment transforms New Jersey into a narco-state. New Jersey is a narco-state by definition because (1) by creating an exclusive mechanism for the production, distribution and consumption of marijuana in violation of federal law, NJ is no different than any other drug cartel, and (2) by removing medical marijuana from the State Criminal Code it significantly reduces the presence of law enforcement. Finally,
"It is quite clear California has chosen a policy that is at odds with the federal government's. … As a general rule, it is still illegal to possess marijuana under federal law, and nothing in this opinion should be construed as suggesting otherwise. Garden Grove v. Superior Court, pg. 34 (pdf file).
II. ANY NEW JERSEY LEGISLATION IS INVALID AS STATE GOVERNMENTS HAVE NO LEGITIMATE POWER FROM WHICH TO AUTHORIZE OR REGULATE MARIJUANA USE.
The question before [THE COURT] is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Vol. 545 U. S. 9. The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more importantly, one that Congress could have rationally rejected. Vol. 545 U. S. 30.
The fact that marijuana is used “for personal medical purposes on the advice of a physician” cannot itself serve as a distinguishing factor. … The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Vol. 545 U. S. 27. When [Congress] enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to “make all Laws which shall be necessary and proper” to “regulate Commerce . . . among the several States.” U. S. Const., Art. I, § 8. That the regulation ensnares some purely intrastate activity is of no moment. Vol. 545 U. S. 22.
When Congress decides that the “‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U. S., at 154– 155 (“ ‘[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so’ ” (quoting Westfall v. United States, 274 U. S. 256, 259 (1927))). In this vein, we have reiterated that when “ ‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” E. g., Lopez, 514 U. S., at 558 (quoting Maryland v. Wirtz, 392 U. S. 183, 196, n. 27 (1968); emphasis deleted). Vol. 545 U. S. 17.
III. NEW JERSEY LACKS BOTH THE AUTHORITY AND COMPETENCE TO DETERMINE WHETHER MEDICAL MARIJUANA IS EITHER A "LEGAL" MEDICINE OR A "SAFE" MEDICINE.
The CSA provides for the periodic updating of schedules and delegates authority to the Attorney General, after consultation with the Secretary of Health and Human Services, to add, remove, or transfer substances to, from, or between schedules. § 811. Vol. 545 U. S. 14-15.
CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner. Indeed, most of the substances classified in the CSA “have a useful and legitimate medical purpose.” 21 U. S. C. § 801(1). Vol. 545 U. S. 27. Thus, even if respondents are correct that marijuana does have accepted medical uses and thus should be redesignated as a lesser schedule drug, the CSA would still impose controls beyond what is required by California law. The CSA requires manufacturers, physicians, pharmacies, and other handlers of controlled substances to comply with statutory and regulatory provisions mandating
registration with the DEA, compliance with specific production quotas, security controls to guard against diversion, recordkeeping and reporting obligations, and prescription requirements. Vol. 545 U.S. 27. §§ 821–830; 21 CFR § 1301 et seq. (2004). Furthermore, the dispensing of new drugs, even when doctors approve their use, must await federal approval. United States v. Rutherford, 442 U. S. 544 (1979). Accordingly, the mere fact that marijuana—like virtually every other controlled substance regulated by the CSA—is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA. Vol. 545 U. S. 28.
The irony of the above is that both S-119 and A-804 recognize New Jersey is not equipped to make a decision as to whether "medical" marijuana is a
"legal" medicine or a "safe" medicine. Read the small print. Read the last paragraph of both S-119 and A-804:
The bill states that nothing in it should be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana, or an employer to accommodate the medical use of marijuana in any workplace. Finally, the bill provides that the State would not be held liable for any deleterious outcomes from the medical use of marijuana by any qualifying patient.
Yet A-804 claims "Modern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions, as found by the National Academy of Sciences' Institute of Medicine in March 1999;" A-804 (2)(a).
Such reliance is misplaced, however, as the 1999 Institute of Medicine (IOM) report is not a general reference and not clearly pro or con. (A pdf of the report is available by clicking "Marijuana and Medicine: Assessing the Science Base.")
The following demonstrates the Bill's reliance of this report is exaggerated because the report (1) recognizes the need for further extensive testing for which the legislation makes no provision, (2) requires, as a precondition for limited use, a strict monitoring mechanism, for which the legislature makes no provision, and (3) while the report addresses the negative effects, the Bill is
a half-truth as it tells only half of the story by neglecting the negative aspects.
And, because it ignores the negative aspects it makes no provision for adequately addressing them. In sum the IOM report substantiates both the Congress and Supreme Court determination the F.D.A.'s singular role in both approval any production of and regulation of any distribution of medical
marijuana.
The report concludes:
[1] At this point, our knowledge about the biology of marijuana and cannabinoids allows us to make some general conclusions:
a. Cannabinoids likely have a natural role in pain modulation, control ofmovement, and memory.
b. The natural role of cannabinoids in immune systems is likely multi-facetedand remains unclear.
c. The brain develops tolerance to cannabinoids.
d. Animal research demonstrates the potential for dependence, but thispotential is observed under a narrower range of conditions than withbenzodiazepines, opiates, cocaine, or nicotine.
e. Withdrawal symptoms can be observed in animals but appear to be mildcompared to opiates or benzodiazepines, such as diazepam (Valium).
[2]: The different cannabinoid receptor types found in the body appear to play different roles in normal human physiology. In addition, some effects of cannabinoids appear to be independent of those receptors. The variety of mechanisms through which cannabinoids can influence human physiology
underlies the variety of potential therapeutic uses for drugs that might act selectively on different cannabinoid systems.
It recommends:
1: Research should continue into the physiological effects of synthetic and plant-derived cannabinoids and the natural function of cannabinoids found in the body. Because different cannabinoids appear to have different effects, cannabinoid research should include, but not be restricted to, effects attributable to THC alone. p 3-4.
2: Clinical trials of cannabinoid drugs for symptom management should be conducted with the goal of developing rapid-onset, reliable, and safe delivery systems. p.4
3: Psychological effects of cannabinoids such as anxiety reduction and sedation, which can influence medical benefits, should be evaluated in clinical trials. p.5
4: Studies to define the individual health risks of smoking marijuana should be conducted, particularly among populations in which marijuana use is prevalent. p.6
5: Clinical trials of marijuana use for medical purposes should be conducted under the following limited circumstances: trials should involve only short-term marijuana use (less than six months), should be conducted in patients with conditions for which there is reasonable expectation of efficacy, should be approved by institutional review boards, and should collect data about efficacy.
p.7
6: Short-term use of smoked marijuana (less than six months) for patients with debilitating symptoms (such as intractable pain or vomiting) must meet the following conditions:
a. failure of all approved medications to provide relief has been documented,
b. the symptoms can reasonably be expected to be relieved by rapid onset cannabinoid drugs,
c. such treatment is administered under medical supervision in a manner that allows for assessment of treatment effectiveness, and
d. involves an oversight strategy comparable to an institutional review board process that could provide guidance within 24 hours of a submission by a physician to provide marijuana to a patient for a specified use. p. 7-8
For further comparisons see "What did the 1999 Institute of Medicine (IOM) Report Says."
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