People are always asking me what my plan is, so I’m going to try to explain. I made my plan in 2006, shortly after the U.S. Supreme Court decision in Gonzales v. Oregon, 546 U.S. 243 (2006). In Gonzales v. Oregon, the U.S. Supreme Court found that states make most of the medical decision under the federal controlled substances act. The Court starts out by affirming that Congress can preempt state laws on accepted medical practice. Gonzales v. Oregon, 546 U.S. at page 271 (“Even though regulation of health and safety is ‘primarily, and historically, a matter of local concern,’ there is no question that the Federal Government can set uniform national standards in these areas”) (citations omitted). The Court goes on to say that Congress has only preempted state public health and safety laws in one area. Gonzales v. Oregon, 546 U.S. at page 271 (“the appropriate methods of professional practice in the medical treatment of the narcotic addiction of various classes of narcotic addicts”).
Having studied federal scheduling of controlled substances for many years, I was aware that previous court rulings had mentioned that Congress did not define the phrase “accepted medical use in treatment in the United States,” the sole condition for placing a substance in federal schedule 1. Alliance for Cannabis Therapeutics v. Drug Enforcement Administration (ACT v. DEA), 930 F.2d 936 at page 939 (D.C. Cir. 1991) (“The difficulty we find in petitioners’ argument is that neither the statute nor its legislative history precisely defines the term ‘currently accepted medical use’; therefore, we are obliged to defer to the Administrator’s interpretation of that phrase if reasonable”). When I read Gonzales v. Oregon, a light turned on in my head. In 1991, when ACT v. DEA was decided, there were no states that had accepted the medical use of marijuana in treatment, so the DEA administrator’s interpretation seemed reasonable at that time. The DEA administrator in ACT v. DEA ruled there was a lack of consensus among medical experts. There were obviously no state laws legalizing the medical use of marijuana in treatment in 1991 for the administrator to consider.
So, a plan was born. The plan is simple, and this is what throws people off. People think I’m trying to legalize marijuana for recreational or medical use, both of which I support. But my plan is not some detailed legislative proposal to enact a state law that would still leave marijuana illegal under federal law. This is the failure of state medical and recreational marijuana laws; you are still a federal criminal if you use marijuana for any reason. So, my plan is simply to get marijuana out of schedule 1, both state and federal. I have to start somewhere, so I’m starting at the state level first.
People then ask me if I’ll propose recreational or medical marijuana after marijuana is removed from state schedule 1. The answer is no. I’ll propose removing marijuana from federal schedule 1 when marijuana is removed from state schedule 1. It’s that simple. It’s so simple, it throws people off. It should not be this difficult to understand, but it is for some reason. I suppose the simple explanation is that we’ve had these schedules for 45 years and nothing in schedule 1 has ever been accepted for medical use by any state, except marijuana. Since 1996, a total of 34 states and two federal jurisdictions (DC and Guam) have accepted the medical use of marijuana in treatment. An additional 4 states have legalized recreational use since 2012. Unlike other substances in schedule 1, marijuana even had accepted medical use in treatment in the United States before these laws were written 45 years ago.
The reason we have 50 state drug laws is because the federal drug law was never intended to be one drug law to rule them all (50 states). We have 50 state drug laws for a good reason. It’s because our government is a dual system known as federalism.
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