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January 08, 2018

Marijuana and Congress

The haze of bipartisan Congressional hypocrisy is thicker than the air in a marijuana bar. I’m for legalization; it’s time for Congress to stop blowing smoke and start legislating.

The Controlled Substances Act (CSA), which classifies marijuana as a Schedule I drug like heroin and proclaims it more dangerous than fentanyl and oxytocin (Schedule II), was passed by Congress in 1970. It has been amended many times since but congresspeople have not seen fit to remove marijuana from Schedule I.

If Congress did exempt marijuana from the CSA, which already exempts tobacco and alcohol, pot would not become legal everywhere. States would be free to ban or regulate it anyway they saw fit; exactly what outraged congresspeople say they want.

Under CSA the Drug Enforcement Administration has the authority to remove a substance from the various schedules. The DEA has rejected petitions to allow use of marijuana for medicinal purposes several times; the latest rejection was in 2011 and was upheld on appeal in 2013.

In 2013 President Obama’s Justice Department issued the Cole Memorandum essentially instructing federal prosecutors to lay off prosecuting marijuana offenses in most case. If Obama had just instructed the DEA to delist marijuana, we wouldn’t be having the debate we’re having today; but that’s history. Trump could give the same order; but we’ve seen that what one president can do by executive order, another can undo.

Last week Attorney General Jeff Sessions, a lifelong foe of marijuana use, rescinded the Cole Memorandum in what he calls a “return to the rule of law”. He didn’t mandate federal prosecution of cannabis cases but made non-prosecution less certain. His memo said:

“In deciding which marijuana activities to prosecute under these laws with the department's finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions. These principles require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”

Senator Bernie Sanders lashed out:

“No, Attorney General Sessions. Marijuana is not the same as heroin. No one who has seriously studied the issue believes that marijuana should be classified as a Schedule 1 drug beside killer drugs like heroin. Quite the contrary.”

While I agree with Bernie about the pharmacology, he is deliberately overlooking the fact that it is Congress and not the Attorney General who put pot on Schedule I. Does he really want Trump’s AG to overrule Congress? Where is the Sander’s bill to declassify marijuana?

There seems to be Republican as well as Democratic support for legalization:

“I am obligated to the people of Colorado to take all steps necessary to protect the state of Colorado and their rights,” said Senator Cory Gardner of Colorado, a conservative member of the Republican leadership who has rarely broken with the Trump White House.

The senator seemed flabbergasted by what amounted to a federal assault on the expanding $1 billion legal pot business approved by voters in Colorado… (NYTimes)

Gardner apparently doesn’t think his obligation to the people of Colorado includes doing his job by pushing for amendment of the offending federal law. Presumably he’d support delisting.

Representative Matt Gaetz of Florida, a leading Trump ally in the House, said the decision would deny relief to suffering cancer patients, including children. He said the move by Mr. Sessions was “heartless and cold, and shows his desire to pursue an antiquated, disproven dogma instead of the will of the American people. He should focus his energies on prosecuting criminals, not patients.” (NYTimes)

Gaetz has a good point about the suffering caused by the prohibition of medicinal use of marijuana. An article in VTdigger details how assisted-living facilities, which receive federal funds, won’t allow the use of marijuana for pain-relief even though such use is legal under Vermont And New Hampshire law.  They are justifiably afraid of running afoul of the feds. It’s up to Congress to remove this threat. Gaetz should consider proposing legislation.

Nancy Pelosi: “Attorney General Jeff Sessions’s [sic] decision bulldozes over the will of the American people and insults the democratic process under which majorities of voters in California and in states across the nation supported decriminalization at the ballot box.” (NYTimes)

I don’t remember Ms. Pelosi pushing for federal deregulation when she was Majority Leader of the House. She apparently doesn’t remember that Congress, presumably following the will of the voters, made pot illegal. And I doubt if she really wants the AG to substitute his reading of the will of the people for Congressional mandates.

There is a good chance that there would be bipartisan support for the feds getting out of the marijuana regulation business. But would Sessions’ boss, President Trump veto such a bill if it passed Congress? Unlike Sessions, whom he certainly doesn’t feel a need to defer to, the President hasn’t said how he personally feels about pot use.

From the same NYTimes article: As for the president’s evolution on marijuana, Ms. Sanders [nb. his spokeperson] said Mr. Trump “believes in enforcing federal law. That would be his top priority, and that is regardless of what the topic is.”

If the federal law were changed, enforcement wouldn’t be an issue. Time for Congress to put their votes where their mouths are and “follow the will of the people.”

See also Marijuana and the Constitution for a discussion of whether Congress actually has the constitutional right to ban instate use of marijuana.

 

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