Carl Olsen
Jan­u­ary 22, 2012

Cit­i­zens’ Aide/Ombudsman
Ola Bab­cock Miller Build­ing
1112 East Grand Avenue
Des Moines, Iowa  50319–0231
Phone: 515–281-3592
Fax: 515–242-6007

Dear Cit­i­zens’ Aide/Ombudsman,

This is a for­mal com­plaint about the Office of Drug Con­trol Pol­icy (ODCP) which is estab­lished by Iowa Code Chap­ter 80E.  http://www.iowa.gov/odcp/

Dale Wool­ery, Interim Exec­u­tive Direc­tor of the Iowa Office of Drug Con­trol Policy

On Decem­ber 27, 2011, ODCP pre-filed a bill with the Iowa leg­is­la­ture, “Mar­i­juana as Sched­uled Con­trolled Sub­stance (5292DP)” which is cur­rently Sen­ate Study Bill 3031 (SSB3031).  https://www.legis.iowa.gov/DOCS/LSA/Bills_Prefiled/2012/BPMMT022.PDF and http://coolice.legis.state.ia.us/Cool-ICE/default.asp?Category=billinfo&Service=Billbook&menu=false&hbill=ssb3031

The expla­na­tion added by the Leg­isla­tive Ser­vice Bureau in both 5292DP and SSB3031, says:

A sched­ule I con­trolled sub­stance is a highly addic­tive sub­stance that has no accepted med­ical use in the United States and a sched­ule II con­trolled sub­stance is a highly addic­tive sub­stance that has an accepted med­ical use in the United States.

5292DP, Page 2, Lines 8–12; SSB3031, Page 2, Lines 8–12.

As a con­di­tion for place­ment in Iowa Sched­ule I, a con­trolled sub­stance must have no accepted med­ical use in the United States.  See Iowa Code § 124.203(1)(b) (2011).

Because mar­i­juana has accepted med­ical use in 16 states and the Dis­trict of Colum­bia[1], 5292DP and SSB3031 are uncon­sti­tu­tional because they vio­late the Full Faith and Credit Clause of the U.S. Constitution.

I have con­tacted ODCP and explained why this pro­posed leg­is­la­tion is uncon­sti­tu­tional and ODCP does not agree with me.  ODCP says that accepted med­ical use in the United States is deter­mined by the FDA, despite the fact I’ve cited to fed­eral court rul­ings that clearly state FDA approval or lack of FDA approval does not deter­mine accepted med­ical use in the United States.

Grin­spoon v. DEA, 828 F.2d 881, 887 (1st Cir. 1987):

Unlike the CSA sched­ul­ing restric­tions, the FDCA inter­state mar­ket­ing pro­vi­sions do not apply to drugs man­u­fac­tured and mar­keted wholly intrastate. Com­pare 21 U.S.C. § 801(5) with 21 U.S.C. § 321 (b), 331, 355(a). Thus, it is pos­si­ble that a sub­stance may have both an accepted med­ical use and safety for use under med­ical super­vi­sion, even though no one has deemed it nec­es­sary to seek approval for inter­state marketing.

Gon­za­les v. Ore­gon, 546 U.S. 243, 258 (2006):

The Attor­ney Gen­eral has rule­mak­ing power to ful­fill his duties under the CSA. The spe­cific respects in which he is autho­rized to make rules, how­ever, instruct us that he is not autho­rized to make a rule declar­ing ille­git­i­mate a med­ical stan­dard for care and treat­ment of patients that is specif­i­cally autho­rized under state law.

ODCP has informed me that if I am unhappy with 5292DP and SSB3031 I should file a com­plaint with the Cit­i­zens’ Aide/Ombudsman.  This is my for­mal complaint.

GROUNDS FOR MY COMPLAINT

1. ODCP does not have any for­mal rule­mak­ing process, so I can­not file an admin­is­tra­tive peti­tion for rule­mak­ing or other agency action under the Iowa Admin­is­tra­tive Pro­ce­dures Act, Iowa Code § 17A.  ODCP informs me that my only recourse is to file a com­plaint with the Cit­i­zens’ Aide/Ombudsman.
2. ODCP did not par­tic­i­pate in the pub­lic hear­ings con­ducted by the Iowa Board of Phar­macy in 2009.  The Iowa Board of Phar­macy is specif­i­cally autho­rized by the Iowa leg­is­la­ture to rec­om­mend changes in the con­trolled sub­stances sched­ules.  See gen­er­ally, Iowa Code § 124.201, and specif­i­cally Iowa Code § 124.203.  ODCP does not have any author­ity or qual­i­fi­ca­tions to be mak­ing med­ical deci­sions on the effi­cacy of con­trolled sub­stances for med­ical use.  The Iowa Board of Phar­macy found that mar­i­juana does have med­ical use and rec­om­mended it be removed from sched­ule I.  The Iowa Board of Pharmacy’s pre-filed leg­is­la­tion is SSB1016.
3. The Iowa Board of Phar­macy is a branch of the Iowa Depart­ment of Pub­lic Health.  SSB1016 is spon­sored by the Iowa Depart­ment of Pub­lic Health.  The Iowa Depart­ment of Pub­lic Health has over 1000 pages of rules and reg­u­la­tions in the Iowa Admin­is­tra­tive Code.  ODCP has absolutely zero pages in the Iowa Admin­is­tra­tive Code.

   Iowa Code Chap­ter 135 — DEPARTMENT OF PUBLIC HEALTH
   Iowa Code Chap­ter 147 — GENERAL PROVISIONS, HEALTH-RELATED PROFESSIONS
   Iowa Code Chap­ter 153 — DENTISTRY
   Iowa Code Chap­ter 152 — NURSING
   Iowa Code Chap­ter 155A — PHARMACY

   Iowa Admin­is­tra­tive Code Chap­ter 645 — Pro­fes­sional Licen­sure
   537 pages
   Iowa Admin­is­tra­tive Code Chap­ter 653 — Med­ical Exam­in­ers
   148 pages
   Iowa Admin­is­tra­tive Code Chap­ter 655 — Nurs­ing Board
   111 pages
   Iowa Admin­is­tra­tive Code Chap­ter 657 — Phar­macy Exam­in­ers
   304 pages

COMPLAINT

1. ODCP is unqual­i­fied to deter­mine whether con­trolled sub­stances have med­ical efficacy.
2. ODCP did not par­tic­i­pate in the pub­lic hear­ings on med­ical use of mar­i­juana held by the Iowa Board of Pharmacy.
3. ODCP is not autho­rized by the Iowa leg­is­la­ture to deter­mine whether con­trolled sub­stances have med­ical efficacy.
4. ODCP has no admin­is­tra­tive pro­ce­dures and has no account­abil­ity to the pub­lic as required by the Iowa Admin­is­tra­tive Pro­ce­dures Act.
5. ODCP is propos­ing leg­is­la­tion that is in vio­la­tion of the U.S. Con­sti­tu­tion, because mar­i­juana has accepted med­ical use in 16 states and the Dis­trict of Colum­bia and ODCP is advis­ing the Iowa leg­is­la­ture that mar­i­juana has no accepted med­ical use in the United States.

REMEDY

Abol­ish the ODCP or force the ODCP to answer to the pub­lic by mak­ing it com­pli­ant with the Iowa Admin­is­tra­tive Pro­ce­dures Act.  If I’m unhappy with a deci­sion by the Iowa Depart­ment of Pub­lic Health (IPDH) or the Iowa Depart­ment of Pub­lic Safety (IDPS), I can file an admin­is­tra­tive peti­tion for agency action or declara­tory rul­ing with those two agen­cies.  The func­tions of ODCP can clearly be per­formed more effec­tively and more effi­ciently by IPDH and IDPS, because those agen­cies are fully com­pli­ant with the Iowa Admin­is­tra­tive Pro­ce­dures Act.  ODPC is tak­ing func­tions that would nor­mally be per­formed by IDPH and IDPS and remov­ing the due process pro­tec­tions of the Iowa Admin­is­tra­tive Pro­ce­dures Act.

Sin­cerely,

Carl Olsen
130 NE Aurora Ave.
Des Moines, IA 50313–3654
515–288-5798 home phone
515–343-9933 cell phone

cc:

Office of Drug Con­trol Pol­icy
Interim Direc­tor Dale Wool­ery
Wal­lace State Office Build­ing
502 E. 9th St, 1st Floor
Des Moines, IA 50319
515–725-0300 Phone
515–725-0304 Fax
dale.woolery@iowa.gov

Leg­isla­tive Ser­vices Agency
Glen Dick­in­son, Direc­tor
Ground Floor, State Capi­tol Build­ing
Des Moines, Iowa 50319
Tele­phone: 515–281-3566
Fax: 515–281-8027
glen.dickinson@legis.state.ia.us

Iowa Sen­ate Judi­ciary Com­mit­tee
Sen­a­tor Gene Fraise, Chair
1007 East Grand Avenue
Des Moines, Iowa 50319
eugene.fraise@legis.iowa.gov

Chief Clerk’s Office
Char­lie Smith­son, Chief Clerk
State Capi­tol Build­ing
Des Moines, Iowa 50319
Phone: 515.281.4280
Cell: 515.681.2354
Fax: 515.281.8758
E-mail: Charlie.Smithson@legis.state.ia.us

Carl Olsen
Jan­u­ary 15, 2012

Bar­bara J. Brohl
Col­orado Depart­ment of Rev­enue
State Capi­tol Annex
1375 Sher­man Street, Room 409
Den­ver, Col­orado 80261

Dear Exec­u­tive Direc­tor Brohl,

Bar­bara Brohl — Exec­u­tive Direc­tor of the Col­orado Depart­ment of Revenue

On Novem­ber 7, 2000, the Peo­ple of Col­orado amended the Col­orado Con­sti­tu­tion by adding Arti­cle XVIII, Sec­tion 14, Med­ical use of mar­i­juana for per­sons suf­fer­ing from debil­i­tat­ing med­ical con­di­tions[1], specif­i­cally stat­ing, “‘Med­ical use’ means the acqui­si­tion, pos­ses­sion, pro­duc­tion, use, or trans­porta­tion of mar­i­juana or para­pher­na­lia related to the admin­is­tra­tion of such mar­i­juana to address the symp­toms or effects of a patient’s debil­i­tat­ing med­ical con­di­tion, which may be autho­rized only after a diag­no­sis of the patient’s debil­i­tat­ing med­ical con­di­tion by a physi­cian or physi­cians, as pro­vided by this section.”

As a con­di­tion for place­ment in fed­eral Sched­ule I, Con­gress directed the U.S. Attor­ney Gen­eral to remove any­thing from Sched­ule I that has accepted med­ical use in the United States.  21 U.S.C. § 812(b)(1)(B).[2]

Leg­is­la­tors in Col­orado seem to be con­fused as to the mean­ing of “med­ical use” and the role of the fed­eral gov­ern­ment in reg­u­lat­ing the med­ical use of con­trolled sub­stances, because on June 7, 2010, the Col­orado leg­is­la­ture enacted a statute pur­port­edly requir­ing state offi­cials to tell the U.S. Drug Enforce­ment Admin­is­tra­tion that mar­i­juana has “poten­tial med­ical value.”  See Col­orado 2010 Ses­sion Laws, Chap­ter 355, Sec­tion 12–43.3–202(1)(g) (Col­orado House Bill 10–1284)[3].  Poten­tial med­ical value and actual med­ical value are not the same.  The Peo­ple of Col­orado did not autho­rize state offi­cials to sub­vert the will of the peo­ple by dis­tort­ing the mean­ing of the Col­orado Constitution.

I see you have decided not to join the states of Wash­ing­ton and Rhode Island in their peti­tion to have mar­i­juana reclas­si­fied by the DEA[4].  Instead, you have decided to make your own request to have mar­i­juana reclas­si­fied by the DEA[5].  I’m writ­ing to tell you that you’ve made the wrong deci­sion, as have the states of Wash­ing­ton and Rhode Island.  You are giv­ing away the store by virtue of your fail­ure to assert states’ rights accord­ing to the U.S. Supreme Court rul­ing in Gon­za­les v. Ore­gon, 546 U.S. 243 (2006).  Your let­ter does not assert that mar­i­juana is mis­clas­si­fied under the fed­eral Con­trolled Sub­stances Act as a mat­ter of law, which is the key to this whole mess.

The rea­son you should lis­ten to me is because I’m cur­rently an inter­venor in the fed­eral mar­i­juana resched­ul­ing peti­tion for judi­cial review, Amer­i­cans for Safe Access, et al. v. DEA, No. 11–1265, in the United States Court of Appeals for the Dis­trict of Colum­bia Cir­cuit.  My motion to inter­vene was granted on Sep­tem­ber 1, 2011[6].  The DEA filed a motion to dis­miss me from the case on Sep­tem­ber 9, 2011[7].  A three judge panel denied the DEA’s motion to dis­miss me on Decem­ber 7, 2011[8], and set a brief­ing sched­ule for the par­ties (includ­ing me) on Decem­ber 8, 2011[9].  My orig­i­nal argu­ment for inter­ven­ing was that none of the states that have accepted the med­ical use of mar­i­juana have noti­fied the fed­eral gov­ern­ment that mar­i­juana must be removed from its cur­rent clas­si­fi­ca­tion as a sub­stance with no med­ical use in the United States.  And, of course, on Novem­ber 30, the states of Wash­ing­ton and Rhode Island filed requests with the DEA to have mar­i­juana reclassified.

Unfor­tu­nately, the Gov­er­nor of Wash­ing­ton tells me the deci­sion on whether mar­i­juana has accepted med­ical use in the United States should be made by a fed­eral reg­u­la­tory admin­is­tra­tor, not by state law­mak­ers[10].  I’m writ­ing to you to make the same objec­tion to Colorado’s let­ter to the DEA, which also cedes state sov­er­eignty to a fed­eral reg­u­la­tory admin­is­tra­tor.  I will be com­plain­ing about your states in my argu­ment before the U.S. Court of Appeals, because what you are doing vio­lates the Tenth Amend­ment bal­ance between state and fed­eral gov­ern­ments, for­mally known as “fed­er­al­ism” and sub­verts the will of the peo­ple who elected you to rep­re­sent the state, not the DEA.  State can­not cede their power to the fed­eral gov­ern­ment unless Con­gress specif­i­cally pre­empts them in clear and unam­bigu­ous lan­guage.  Gon­za­les v. Ore­gon makes it clear that Con­gress never intended to pre­empt the states from decid­ing what to accept or reject for med­ical use.  That is why we have 50 state con­trolled sub­stances acts, instead of one fed­eral law to rule them all.

John Hick­en­looper — Gov­er­nor of Colorado

If I can be of any fur­ther assis­tance to you, please let me know.  Your state seems to under­stand that its cit­i­zens deserve pro­tec­tion from fed­eral mis­clas­si­fi­ca­tion of mar­i­juana, but you don’t seem to under­stand who is actu­ally in con­trol.  It is within your power to pro­tect the cit­i­zens of your state, so I wish you every suc­cess in ful­fill­ing your con­sti­tu­tional duty to pro­tect and serve the peo­ple who elected you.

Sin­cerely,

Carl Olsen
130 NE Aurora Ave., Des Moines, IA 50313–3654
515–288-5798 (home) • 515–343-9933 (cell)
carl@carl-olsen.com • www.carl-olsen.com

Carl Olsen
Jan­u­ary 14, 2012

Jan­ice K. Brewer
Gov­er­nor of Ari­zona
1700 West Wash­ing­ton Street
Phoenix, Ari­zona 85007

Dear Gov­er­nor Brewer,

Jan­ice K. Brewer — Gov­er­nor of Arizona

On June 3, 2011, I tried to inter­vene in your case against the United States, Ari­zona v. United States, No. 11-cv-01072-PHX-SRB (Docket No. 6)[1], argu­ing that the proper course for Ari­zona to pro­tect its cit­i­zens would be to notify U.S. Attor­ney Gen­eral Eric Holder that mar­i­juana has accepted med­ical use in the United States (in Ari­zona) and must there­fore be imme­di­ately removed from its cur­rent fed­eral clas­si­fi­ca­tion as a sub­stance with no accepted med­ical use in the United States.  I cited the U.S. Supreme Court deci­sion in Gon­za­les v. Ore­gon, 546 U.S. 243 (2006) (state law­mak­ers, not fed­eral admin­is­tra­tive offi­cials, decide what is accepted for med­ical use in a state), as proof of the valid­ity of my claim.

On July 6, 2011, the Hon­or­able Susan R. Bolton dis­missed my motion to inter­vene (Docket No. 29)[2], stat­ing that I did not have a suf­fi­ciently pro­tected inter­est in the case to jus­tify grant­ing my motion and that any rights I might arguably have had were pro­tect by the other par­ties in the case.  As it turns out, the case was dis­missed on Jan­u­ary 4, 2012 (Docket No. 71)[3], and any rights I might arguably have had were protected.

I see you have decided not to join the states of Wash­ing­ton and Rhode Island in their peti­tion to have mar­i­juana reclas­si­fied by the DEA[4].  Nor have you decided to join the state of Col­orado in its request to have mar­i­juana reclas­si­fied by the DEA[5].  I’m writ­ing to tell you that you’ve made the right deci­sion not to sup­port those efforts, because those states are giv­ing away the store by fail­ure to assert states’ rights accord­ing to the U.S. Supreme Court rul­ing in Gon­za­les v. Ore­gon.  I like your let­ter to Act­ing U.S. Attor­ney Ann Birm­ing­ham Scheel[6], but you need to be more aggres­sive.  Your let­ter does not assert that mar­i­juana is mis­clas­si­fied under the fed­eral Con­trolled Sub­stances Act, which is the key to this whole mess.

The rea­son you should lis­ten to me is because I’m cur­rently an inter­venor in the fed­eral mar­i­juana resched­ul­ing peti­tion for judi­cial review, Amer­i­cans for Safe Access, et al. v. DEA, No. 11–1265, in the United States Court of Appeals for the Dis­trict of Colum­bia Cir­cuit.  My motion to inter­vene was granted on Sep­tem­ber 1, 2011[7].  The DEA filed a motion to dis­miss me from the case on Sep­tem­ber 9, 2011[8].  A three judge panel denied the DEA’s motion to dis­miss me on Decem­ber 7, 2011[9], and set a brief­ing sched­ule for the par­ties (includ­ing me) on Decem­ber 8, 2011[10].  My orig­i­nal argu­ment for inter­ven­ing was that none of the states that have accepted the med­ical use of mar­i­juana had noti­fied the fed­eral gov­ern­ment that mar­i­juana must be removed from its cur­rent clas­si­fi­ca­tion as a sub­stance with no med­ical use in the United States.  And, of course, on Novem­ber 30, the states of Wash­ing­ton and Rhode Island filed requests with the DEA to have mar­i­juana reclassified.

Unfor­tu­nately, the Gov­er­nor of Wash­ing­ton tells me the deci­sion on whether mar­i­juana has accepted med­ical use in the United States should be made by a fed­eral reg­u­la­tory admin­is­tra­tor, not by state law­mak­ers[11].  I’m going to write to the Gov­er­nor of Col­orado later this week­end to com­plain about Colorado’s let­ter to the DEA, which also cedes state sov­er­eignty to a fed­eral reg­u­la­tory admin­is­tra­tor.  I will be com­plain­ing about these states in my argu­ment before the U.S. Court of Appeals, because it vio­lates the Tenth Amend­ment bal­ance between state and fed­eral gov­ern­ments, for­mally known as “fed­er­al­ism.”  States can­not cede their power to the fed­eral gov­ern­ment unless Con­gress specif­i­cally pre­empts them in clear and unam­bigu­ous lan­guage.  Gon­za­les v. Ore­gon makes it clear that Con­gress never intended to pre­empt the states from decid­ing what to accept or reject for med­ical use.  That is why we have 50 state con­trolled sub­stances acts, instead of one fed­eral law to rule them all.

If I can be of any fur­ther assis­tance to you, please let me know.  Your point that state employ­ees deserve pro­tec­tion is well taken, and state cit­i­zens deserve pro­tec­tion as well.  It is within your power to pro­tect them, so I wish you every suc­cess in ful­fill­ing your con­sti­tu­tional duty to pro­tect and serve the peo­ple who elected you.

Sin­cerely,

Carl Olsen
130 NE Aurora Ave., Des Moines, IA 50313–3654
515–288-5798 (home) • 515–343-9933 (cell)
carl@carl-olsen.com • www.carl-olsen.com

Over the week­end, there was quite a ruckus over whether folks should sup­port legal­iza­tion or med­ical use of mar­i­juana, as if there was some prob­lem with folks sup­port­ing one or the other, or both.  You can fol­low the dis­cus­sion at CelebStoner.com and TokeOfTheTown.com if you’d like to fol­low along.  I’m post­ing my com­ments here to memo­ri­al­ize my thoughts.

I’m won­der­ing why Cal­i­for­nia hasn’t sued Eric Holder for main­tain­ing mar­i­juana in a cat­e­gory that says it has no accepted med­ical use in the United States.  It has accepted med­ical use in Cal­i­for­nia and Cal­i­for­nia is a state and Cal­i­for­nia is in the United States.  I think the state offi­cials in Cal­i­for­nia are respon­si­ble for the mess there and they need to be sued for fail­ure to defend the state med­ical mar­i­juana law at the fed­eral level.  Gon­za­les v. Ore­gon, 546 U.S. 243 (2006), says med­ical use is deter­mined by state law­mak­ers, not by the U.S. Depart­ment of Justice.

I would say that gov­ern­ment offi­cials don’t do any­thing vol­un­tar­ily, par­tic­u­larly if there might be some dif­fi­culty involved.  Since the case I’m refer­ring to, Gon­za­les v. Ore­gon, 546 U.S. 243 (2006), took a fed­eral law suit and law suits costs money, I don’t think you have to look any fur­ther for a the­ory as to why Cal­i­for­nia has not done this.  That’s why it will take a cit­i­zen to file a law suit in state court against the state for fail­ure to do every­thing within its power to pro­tect med­ical use by the cit­i­zens.  Cer­tainly, demand­ing mar­i­juana be removed from fed­eral sched­ule I is within the state’s power and right as a state in the United States (since the cri­te­ria for keep­ing it in sched­ule I is that it must have no accepted med­ical use in the United States).  I don’t see this hap­pen­ing with­out a peti­tion for writ of man­damus filed by Cal­i­for­ni­ans in state court against state offi­cials.  The title of the case would be John Doe v. Cal­i­for­nia (John Doe being who­ever files the case).  The ACLU should do this for the cit­i­zens, but I’m sure they won’t.

Just to give you an exam­ple, I filed a peti­tion with the Iowa Board of Phar­macy to remove mar­i­juana from sched­ule I and they rejected it with­out even con­sid­er­ing it. I sued them and won. After I won, they held months of pub­lic hear­ings and ruled unan­i­mously that mar­i­juana should be removed from sched­ule I. The money for the hear­ings came out of their own oper­at­ing bud­get. They won’t do some­thing like that vol­un­tar­ily. You have to sue them. In Cal­i­for­nia, your phar­macy board has no author­ity to reclas­sify, so you would have to sue the state directly as I am cur­rently doing here in Iowa.

All 16 states that have accepted the med­ical use of mar­i­juana accept it in it’s nat­ural plant form, not as a phar­ma­ceu­ti­cal pre­scrip­tion drug.  The trend is not going toward a takeover by cor­po­rate phar­ma­ceu­ti­cal com­pa­nies.  This is a good thing.  Any­one who doesn’t sup­port this trend is no friend of legalization.

Yes, NORML, legal­iza­tion would be good for patients.  Why don’t you go do that for them?

The amaz­ing this is that while NORML blast the med­ical mar­i­juana com­mu­nity, NORML is cur­rently work­ing to have mar­i­juana trans­ferred to sched­ule III, IV, or V of the fed­eral Con­trolled Sub­stances Act.  What is that all about?

Make Mar­i­juana Legal For Med­ical Pur­poses: Help Put Mar­i­juana Resched­ule Peti­tion Before Pres­i­dent Obama by Allen St. Pierre, NORML Exec­u­tive Direc­tor Octo­ber 4, 2011

What NORML never tells you is that all 16 states that have accepted the med­ical use of mar­i­juana have failed to sue Eric Holder for keep­ing mar­i­juana clas­si­fied as a sub­stance with no accepted med­ical use in the United States. The United States Supreme Court made it abun­dantly clear in Gon­za­les v. Ore­gon, 546 U.S. 243 (2006) that states decide what is and is not accepted for med­ical use, not the fed­eral gov­ern­ment. NORML’s legal com­mit­tee just doesn’t get it, or is hid­ing it for some reason.

There’s a rea­son the fed­eral gov­ern­ment is crack­ing down on large-scale man­u­fac­ture and dis­tri­b­u­tion — because the state offi­cials have com­mit­ted trea­son by fail­ing to rep­re­sent the peo­ple who elected them to enforce the state laws.

Col­orado is ask­ing the DEA to put mar­i­juana in Sched­ule II with­out a shred of evi­dence to back it up. The let­ter was one page. The let­ter says the Col­orado Leg­is­la­ture thinks mar­i­juana “may have poten­tial” med­ical use. The Col­orado Con­sti­tu­tion says mar­i­juana “is” med­i­cine. It’s trea­son for any state offi­cial to say mar­i­juana “may have” when the con­sti­tu­tion says “does have.” How the cit­i­zens of Col­orado are let­ting these state offi­cials com­mit trea­son is beyond belief.

Your con­sti­tu­tion in Col­orado does not say “may have.” It says mar­i­juana is med­i­cine. Your leg­is­la­ture has enacted an uncon­sti­tu­tional law that says “may have” and you’ve just con­sented to it. You’re free to give up your rights, but not all of us play that way.

Med­ical mar­i­juana is not a pre­scrip­tion drug. It isn’t pre­scribed in any state where it’s legal for med­ical use. Peo­ple who make the argu­ment that it’s just a pre­tense for cor­po­rate con­trol by the phar­ma­ceu­ti­cal com­pa­nies aren’t look­ing at the facts. The fact is the plant is most use­ful in its nat­ural form and the laws in 16 states that have legal­ized it for med­ical use all reflect that fact. Mar­i­juana does not belong in Sched­ule I, but it also does not belong in Sched­ules II, III, IV, or V because those sched­ules all con­tain pre­scrip­tion drugs. So, med­ical use does lead to legal­iza­tion. The fact that mar­i­juana is cur­rently clas­si­fied as “good for noth­ing” is the prob­lem and med­ical mar­i­juana is the solu­tion because it proves mar­i­juana is “good for some­thing.” The fact that NORML and its friends are unable to have fun, or what­ever “recre­ational” use means, is just not a com­pelling argument.

Now, the real ques­tion is why the large scale man­u­fac­tur­ers and dis­trib­u­tors haven’t sued their state offi­cials for fail­ure to rep­re­sent the will of the peo­ple and sue Eric Holder for fail­ing to remove mar­i­juana from it’s cur­rent clas­si­fi­ca­tion as hav­ing no accepted med­ical use in the United States.  It’s like they want the fed­eral gov­ern­ment to keep mar­i­juana clas­si­fied as hav­ing no accepted med­ical use in the United States.  The doc­u­men­tary on the National Geo­graphic chan­nel last month “Mar­i­juana Gold Rush” actu­ally made this argu­ment that as long as it remains ille­gal under fed­eral law, high risk investors can make a lot of money from it.  What a shame.

This lat­est round by NORML reminds me of com­ments Scott Imler made sev­eral years ago that got quoted over and over again by the drug war­riors. My prob­lem with Cal­i­for­nia is that the state offi­cials have not filed against the U.S. Attor­ney Gen­eral for main­tain­ing mar­i­juana in a clas­si­fi­ca­tion that says it has no accepted med­ical use in the United States.  Cal­i­for­nia is a state and it’s in the United States. When I read the deci­sion in Gon­za­les v. Ore­gon, 546 U.S. 243 (2006), it became clear to me that accepted med­ical use is defined by state law, not by the 8 fac­tors in 21 U.S.C. 811©. The DEA can not put mar­i­juana into any of the other four sched­ules, because it isn’t being sold inter­state and it isn’t being pre­scribed. That would leave it com­pletely unsched­uled, which is exactly where it should be.

I think NORML’s com­ments have stim­u­lated an impor­tant dis­cus­sion.  On the one hand, the med­ical cannabis indus­try could pro­vide much needed resources to get the states to demand fed­eral reclas­si­fi­ca­tion.  On the other hand, they prob­a­bly won’t if they’re just in it for the money.  We cer­tainly need to expand pro­duc­tion and dis­tri­b­u­tion, but it can’t be done by sim­ply chang­ing state law.  Fed­eral law also has to be changed before it will work.  So, NORML has a point worth con­sid­er­ing, even it wasn’t artic­u­lated very well.

So, yes, we need a med­ical cannabis indus­try, but, no, the model we are see­ing develop is severely flawed. The main point I would take issue with NORML over is the idea that cannabis con­sumers just can’t have any fun unless mar­i­juana is legal. Who is going to get all teary-eyed about that? Med­ical cannabis is going to result in full legal­iza­tion, not the other way around. NORML needs to get its pri­or­i­ties in order.

Let’s just take Har­bor­side Health Cen­ter for an exam­ple.  They gross over $20 mil­lion per year.  They just got hit with a $2.5 mil­lion IRS tax levy because mar­i­juana is fed­er­ally clas­si­fied as a sub­stance with no med­ical use in the United States.  But, it has accepted med­ical use in Cal­i­for­nia, which is a state in the United States.  Has Cal­i­for­nia ever sued the U.S. Attor­ney Gen­eral, like Ore­gon sued John Ashcroft for try­ing to inter­fere with it’s state assisted sui­cide law?  No.  Has Har­bor­side sued Cal­i­for­nia for fail­ure to sue Eric Holder?  No.  What’s going on is some kind of rela­tion­ship between Cal­i­for­nia and Har­bor­side that makes it incon­ve­nient for Har­bor­side to sue Cal­i­for­nia, so the prob­lem just doesn’t get fixed.  Cal­i­for­nia should be pay­ing that $2.5 mil­lion IRS tax levy for Har­bor­side, but Har­bor­side is com­pro­mised because Cal­i­for­nia allows it to exist in the first place.

With the health ben­e­fits of juic­ing cannabis being revealed, we need large scale pro­duc­tion and dis­tri­b­u­tion, and the cur­rent dis­pen­sary model just isn’t going to fill that need.

I attended my precinct cau­cus last night.  We had ten peo­ple.  There was only one plat­form res­o­lu­tion, mine.  I explained that since the last cau­cus I had picked up sup­port from the Des Moines Reg­is­ter (opin­ion poll on Feb­ru­ary 16, 2010, find­ing 64% of Iowans in favor of med­ical mar­i­juana), the Iowa Board of Phar­macy (unan­i­mous rul­ing on Feb­ru­ary 17, 2010, to reclas­sify mar­i­juana as med­i­cine), the Iowa Med­ical Soci­ety, and the Iowa Phar­macy Asso­ci­a­tion.  I explained how I had to sue the Iowa Board of Phar­macy just to get them to con­sider the issue.  One of the precinct mem­bers asked me if I had heard the Office of Drug Con­trol Pol­icy (ODCP) had just filed a bill to keep mar­i­juana clas­si­fied as non-medical.  I responded that I had been on the phone with the ODCP last week and just received an offi­cial response from their office by email the same day as the cau­cus.  The ODCP is bas­ing their opin­ion on a 2006 let­ter from the FDA.  The FDA inter­prets the fed­eral Con­trolled Sub­stances Act, not the Iowa Uni­form Con­trolled Sub­stances Act, so I’m going to sue them for vio­la­tion of state sov­er­eignty.  Grin­spoon v. DEA, 828 F.2d 881, 887 (1st Cir. 1987): “Unlike the CSA sched­ul­ing restric­tions, the FDCA inter­state mar­ket­ing pro­vi­sions do not apply to drugs man­u­fac­tured and mar­keted wholly intrastate. Com­pare 21 U.S.C. § 801(5) with 21 U.S.C. § 321 (b), 331, 355(a). Thus, it is pos­si­ble that a sub­stance may have both an accepted med­ical use and safety for use under med­ical super­vi­sion, even though no one has deemed it nec­es­sary to seek approval for inter­state marketing.”

It’s that time again! Time for the Iowa Cau­cus. Please down­load a copy of our 2012 cau­cus res­o­lu­tion and take it with you to the Iowa Cau­cus on Tues­day night, Jan­u­ary 3, 2012. I’m a Demo­c­rat, so if you’re a Repub­li­can, you’ll have to take out a scis­sors and trim off the top part. I think you’ll agree, it’s a great res­o­lu­tion and it already has the sup­port of both Repub­li­cans and Democ­rats on the Iowa Board of Phar­macy, the Iowa Med­ical Soci­ety, the Iowa Phar­macy Asso­ci­a­tion, and 64% of Iowans in a Des Moines Reg­is­ter pub­lic opin­ion poll in 2010. Let’s make this hap­pen this year!

Here’s the open­ing para­graph from United States v. Lopez, 514 U.S. 549, 551 (1995):

In the Gun-Free School Zones Act of 1990, Con­gress made it a fed­eral offense “for any indi­vid­ual know­ingly to pos­sess a firearm at a place that the indi­vid­ual knows, or has rea­son­able cause to believe, is a school zone.” 18 U.S.C. § 922 (q)(1)(A) (1988 ed., Supp. V). The Act nei­ther reg­u­lates a com­mer­cial activ­ity nor con­tains a require­ment that the pos­ses­sion be con­nected in any way to inter­state com­merce. We hold that the Act exceeds the author­ity of Con­gress “to reg­u­late Com­merce … among the sev­eral States .…” U.S. Const., Art. I, § 8, cl. 3.

This was a case used by Raich in Gon­za­les v. Raich, 545 U.S. 1 (2005), to sup­port a claim that the Inter­state Com­merce Clause did not reach per­sonal, intra-state, and state-authorized med­ical use of marijuana.

Let’s exam­ine the dif­fer­ences in the Gun-Free School Zones Act (GFSZA) and the Con­trolled Sub­stances Act (CSA).

The GFSZA crim­i­nal­ized the pos­ses­sion of a firearm in a spe­cific set of cir­cum­stances.  The CSA reg­u­lates the pos­ses­sion of sub­stances and only crim­i­nal­izes the unau­tho­rized pos­ses­sion of a con­trolled sub­stance (you can get a pre­scrip­tion and that makes it legal).  So, that is a huge dif­fer­ence.  When Con­gress cre­ates a license to do some­thing that is not oth­er­wise allowed, you have to make an addi­tional argu­ment that you were denied a license before you can attack the statute itself.  Another twist of the CSA is that you can apply to have sub­stances added, removed, or trans­ferred between, the schedules.

An addi­tional fact of the CSA is that Con­gress specif­i­cally said per­sonal, intra-state pos­ses­sion of con­trolled sub­stances affects inter­state com­merce.  That asser­tion went unchal­lenged for 35 years until Raich chal­lenged it.  And, of course, unless a fun­da­men­tal right is at stake, the court uses a “ratio­nal basis” analy­sis to deter­mine whether Con­gress could have rea­son­ably assumed per­sonal, intra-state pos­ses­sion of con­trolled sub­stances affects inter­state commerce.

So, the CSA:

1. Reg­u­lates a com­mer­cial activity.
2. Asso­ciates the activ­ity with inter­state commerce.

That is why NORML’s cur­rent law suit, Marin Alliance v. Holder, No. 4:11-cv-05349-SBA (U.S. Dis­trict Court, North­ern Dis­trict of Cal­i­for­nia, Oak­land) is going to fail unless NORML amends the com­plaint to chal­lenge the sched­ule I clas­si­fi­ca­tion of mar­i­juana (which is what the U.S. Supreme Court told Raich to do, 545 U.S. at 28 n.37).  I found it inter­est­ing that NORML’s year end sum­mary of mar­i­juana law reform claims this law­suit was their great­est accom­plish­ment of 2011.  Two fed­eral judges have already torn it to shreds.

21 U.S.C. § 801 Note Short Title

This title may be cited as the ‘Con­trolled Sub­stances Act’.

§ 801. Con­gres­sional find­ings and dec­la­ra­tions: con­trolled substances.

The Con­gress makes the fol­low­ing find­ings and declarations:

• (1) Many of the drugs included within this sub­chap­ter have a use­ful and legit­i­mate med­ical pur­pose and are nec­es­sary to main­tain the health and gen­eral wel­fare of the Amer­i­can people.
• (2) The ille­gal impor­ta­tion, man­u­fac­ture, dis­tri­b­u­tion, and pos­ses­sion and improper use of con­trolled sub­stances have a sub­stan­tial and detri­men­tal effect on the health and gen­eral wel­fare of the Amer­i­can people.
• (3) A major por­tion of the traf­fic in con­trolled sub­stances flows through inter­state and for­eign com­merce. Inci­dents of the traf­fic which are not an inte­gral part of the inter­state or for­eign flow, such as man­u­fac­ture, local dis­tri­b­u­tion, and pos­ses­sion, nonethe­less have a sub­stan­tial and direct effect upon inter­state com­merce because -
• ( A ) after man­u­fac­ture, many con­trolled sub­stances are trans­ported in inter­state commerce,
• ( B ) con­trolled sub­stances dis­trib­uted locally usu­ally have been trans­ported in inter­state com­merce imme­di­ately before their dis­tri­b­u­tion, and
• ( C ) con­trolled sub­stances pos­sessed com­monly flow through inter­state com­merce imme­di­ately prior to such possession.
• (4) Local dis­tri­b­u­tion and pos­ses­sion of con­trolled sub­stances con­tribute to swelling the inter­state traf­fic in such substances.
• (5) Con­trolled sub­stances man­u­fac­tured and dis­trib­uted intrastate can­not be dif­fer­en­ti­ated from con­trolled sub­stances man­u­fac­tured and dis­trib­uted inter­state. Thus, it is not fea­si­ble to dis­tin­guish, in terms of con­trols, between con­trolled sub­stances man­u­fac­tured and dis­trib­uted inter­state and con­trolled sub­stances man­u­fac­tured and dis­trib­uted intrastate.
• (6) Fed­eral con­trol of the intrastate inci­dents of the traf­fic in con­trolled sub­stances is essen­tial to the effec­tive con­trol of the inter­state inci­dents of such traffic.
• (7) The United States is a party to the Sin­gle Con­ven­tion on Nar­cotic Drugs, 1961, and other inter­na­tional con­ven­tions designed to estab­lish effec­tive con­trol over inter­na­tional and domes­tic traf­fic in con­trolled substances.