Carl Olsen’s Letter to Governor Jan Brewer

Carl Olsen
Jan­u­ary 14, 2012

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

Dear Gov­er­nor Brew­er,

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