Comments on Hawaii HCR 132

Tes­ti­mo­ny COMMENTING on HCR 132
Request to the Drug Enforce­ment Admin­is­tra­tion for an excep­tion to the Reg­u­la­tions

Rep­re­sen­ta­tive Mark M. Nakashima, Chair
House Com­mit­tee on Judi­cia­ry & Hawai­ian Affairs
Hear­ing Date: 3/29/2021       Room Num­ber: 325

HCR 132 is before you today because of work I start­ed here in Iowa in Jan­u­ary of 2019, ask­ing my state to file for a fed­er­al exemp­tion to pro­tect our med­ical cannabis patients, using the process in the Code of Fed­er­al Reg­u­la­tions, 21 C.F.R. § 1307.03.

My argu­ment comes from an incon­sis­ten­cy in Gon­za­les v. Raich, 545 U.S. 1 (2005) and Gon­za­les v. Ore­gon, 546 U.S. 243 (2006), along with my own efforts to obtain a fed­er­al exemp­tion, Olsen v. Drug Enforce­ment Admin­is­tra­tion, 848 F.2d 1458 (D.C. Cir., 1989), cit­ed in Employ­ment Divi­sion v. Smith, 494 U.S. 872, 889 (1990).

In Raich, the court found that state laws autho­riz­ing the use of cannabis do not retroac­tive­ly nul­li­fy fed­er­al drug laws.

Cal­i­for­ni­a’s deci­sion (made 34 years after the CSA was enact­ed) to impose “stric[t] con­trols” on the “cul­ti­va­tion and pos­ses­sion of mar­i­jua­na for med­ical pur­pos­es,” …, can­not retroac­tive­ly divest Con­gress of its author­i­ty under the Com­merce Clause.

Id., 545 U.S., at 29 n.38.

We do note, how­ev­er, the pres­ence of anoth­er avenue of relief.  As the Solic­i­tor Gen­er­al con­firmed dur­ing oral argu­ment, the statute autho­rizes pro­ce­dures for the reclas­si­fi­ca­tion of Sched­ule I drugs.

Id., 545 U.S., at 33.

Peti­tions to resched­ule are the most com­mon admin­is­tra­tive rem­e­dy for avoid­ing pos­i­tive con­flict between state and fed­er­al drugs laws, although not the only admin­is­tra­tive rem­e­dy.  See Amer­i­cans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013); then see 21 C.F.R. § 1307.31.

In Ore­gon, the court found that the “accept­ed” use of a con­trolled sub­stance is what­ev­er state law says it is, but none of the sub­stances in the Ore­gon law were in fed­er­al Sched­ule I.  So, the issue of sched­ul­ing was nev­er reached in that case.

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.

Id., 546 U.S., at 258.

There is a fed­er­al exemp­tion for a sub­stance in fed­er­al Sched­ule I, pey­ote.  See, 21 C.F.R. § 1307.31.  The exec­u­tive branch cre­at­ed this exemp­tion for pey­ote in 1966 based on a Cal­i­for­nia Supreme Court deci­sion in 1964, Peo­ple v. Woody, 61 Cal. 2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964).

See, Con­gres­sion­al Record, July 8, 1965 111 Cong. Rec. 15977
See, Fed­er­al Reg­is­ter, March 19, 1966 31 Fed. Reg. 4679
See, 21 C.F.R. § 166.3©(3) (1968)
See, U.S. House Hear­ings, Feb­ru­ary 3, 1970 Pages 117–118

The exemp­tion was car­ried over in 1970 when the cur­rent fed­er­al drug laws were cre­at­ed.

The pey­ote exemp­tion is not statu­to­ry.  It exists only because the statute gives the fed­er­al admin­is­tra­tion the pow­er to grant exemp­tions to the reg­u­la­tions.  The sched­ules are reg­u­la­tions.  See, 21 C.F.R. § 1308.11.

If state court deci­sions are suf­fi­cient for a fed­er­al exec­u­tive branch exemp­tion, then state statutes are just as valid.  State court rul­ings are laws just like state statutes, but they are not high­er or low­er.  They are equal.

In Olsen, the court found that Olsen’s use of cannabis was unlim­it­ed and drew a dis­tinc­tion between Olsen’s reli­gious use of cannabis and the reli­gious use of pey­ote in Woody.  Olsen offered to cre­ate some restric­tions, but the court found Olsen’s offer to be disin­gen­u­ous.

Because the tenets of the Ethiopi­an Zion Cop­tic Church endorse mar­i­jua­na use every day through­out the day, how­ev­er, Olsen’s pro­pos­al for con­fined use would not be self-enforc­ing.

Id., 848 F.2d, at 1462.

State laws, on the oth­er hand, are clear­ly defined in state statutes and state reg­u­la­tions, dis­tin­guish­ing them from Olsen’s unlim­it­ed use.

Based on the fore­go­ing, it is this author’s opin­ion that deny­ing an exemp­tion for state autho­rized use of cannabis would be an abuse of dis­cre­tion under 21 C.F.R. § 1307.03.

Olsen pre­sent­ed this argu­ment to the board that reg­u­lates the state med­ical cannabis pro­gram in Iowa in Feb­ru­ary of 2019 by ask­ing if every­thing autho­rized by the pro­gram was a vio­la­tion of fed­er­al law.  In August of 2019, the board vot­ed unan­i­mous­ly to rec­om­mend the Iowa Depart­ment of Pub­lic Health obtain an exemp­tion from fed­er­al drugs laws using the appli­ca­tion process in 21 C.F.R. § 1307.03.  In June of 2020, the Iowa leg­is­la­ture enact­ed HF 2589, which requires the Iowa Depart­ment of Pub­lic Health to obtain fed­er­al fund­ing guar­an­tees for state edu­ca­tion­al and health care insti­tu­tions that allow state autho­rized use of med­ical cannabis.  In Sep­tem­ber of 2020, the Iowa Depart­ment of Pub­lic Health said the only way to obtain fed­er­al fund­ing guar­an­tees was by obtain­ing an exemp­tion using the process in 21 C.F.R. § 1307.03.  Attached is the pre­sen­ta­tion the depart­ment made to the board on Sep­tem­ber 4, 2020.

If you have any ques­tions, I would be glad to answer them.

Thank you for tak­ing time to address this mat­ter.

–
Carl Olsen