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(c)(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
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