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,

Governor Jan Brewer Portrait 2011
Janice K. Brewer - Governor of Arizona

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


U.S. Attorney in Oakland, CA cites my case

The U.S. Attorney in Oakland, CA, responded to NORML’s law suit Tuesday (you know, the one three federal judges have already shredded):

http://www.iowamedicalmarijuana.org/States/pdfs/ca_11cv05349_039.pdf

Melinda Haag
Melinda Haag, U.S. Attorney for the Northern DIstrict of California

The most annoying thing about it is that she attacks me and I have no way of defending myself.  On page 16, she cites Olsen v. Holder, 610 F. Supp. 2d 985 (S.D. Iowa 2009):

Other courts have held that the federal prohibition on distribution, possession, and use of marijuana in the CSA cannot be called into question by the existence of state laws that purport to recognize a medical use for marijuana. See Olsen v. Holder, 610 F. Supp. 2d 985, 994-95 (S.D. Iowa 2009) (rejecting notion that plaintiff could “circumvent” the federal controlled substance scheduling process by relying on determinations by “several states” that marijuana has an accepted medical use)

She doesn’t explain the fact the court found I didn’t have standing to make an argument based on 16 states that I don’t live in and the judge told me I had to file a petition with the DEA.  I’m already a petitioner in the federal DEA rescheduling petition, so I’ve got that covered.  The DEA moved to dismiss me back in September and a three judge panel on the U.S. Court of Appeals denied the DEA’s motion on December 7, 2011.  It’s interesting that the DEA did not cite this case in their motion to dismiss me.  Isn’t that odd?

Controversy over medical marijuana? Or, just an excuse to talk?

Over the weekend, there was quite a ruckus over whether folks should support legalization or medical use of marijuana, as if there was some problem with folks supporting one or the other, or both.  You can follow the discussion at CelebStoner.com and TokeOfTheTown.com if you’d like to follow along.  I’m posting my comments here to memorialize my thoughts.

I’m wondering why California hasn’t sued Eric Holder for maintaining marijuana in a category that says it has no accepted medical use in the United States.  It has accepted medical use in California and California is a state and California is in the United States.  I think the state officials in California are responsible for the mess there and they need to be sued for failure to defend the state medical marijuana law at the federal level.  Gonzales v. Oregon, 546 U.S. 243 (2006), says medical use is determined by state lawmakers, not by the U.S. Department of Justice.

I would say that government officials don’t do anything voluntarily, particularly if there might be some difficulty involved.  Since the case I’m referring to, Gonzales v. Oregon, 546 U.S. 243 (2006), took a federal law suit and law suits costs money, I don’t think you have to look any further for a theory as to why California has not done this.  That’s why it will take a citizen to file a law suit in state court against the state for failure to do everything within its power to protect medical use by the citizens.  Certainly, demanding marijuana be removed from federal schedule I is within the state’s power and right as a state in the United States (since the criteria for keeping it in schedule I is that it must have no accepted medical use in the United States).  I don’t see this happening without a petition for writ of mandamus filed by Californians in state court against state officials.  The title of the case would be John Doe v. California (John Doe being whoever files the case).  The ACLU should do this for the citizens, but I’m sure they won’t.

Just to give you an example, I filed a petition with the Iowa Board of Pharmacy to remove marijuana from schedule I and they rejected it without even considering it. I sued them and won. After I won, they held months of public hearings and ruled unanimously that marijuana should be removed from schedule I. The money for the hearings came out of their own operating budget. They won’t do something like that voluntarily. You have to sue them. In California, your pharmacy board has no authority to reclassify, so you would have to sue the state directly as I am currently doing here in Iowa.

All 16 states that have accepted the medical use of marijuana accept it in it’s natural plant form, not as a pharmaceutical prescription drug.  The trend is not going toward a takeover by corporate pharmaceutical companies.  This is a good thing.  Anyone who doesn’t support this trend is no friend of legalization.

Yes, NORML, legalization would be good for patients.  Why don’t you go do that for them?

The amazing this is that while NORML blast the medical marijuana community, NORML is currently working to have marijuana transferred to schedule III, IV, or V of the federal Controlled Substances Act.  What is that all about?

Make Marijuana Legal For Medical Purposes: Help Put Marijuana Reschedule Petition Before President Obama by Allen St. Pierre, NORML Executive Director October 4, 2011

What NORML never tells you is that all 16 states that have accepted the medical use of marijuana have failed to sue Eric Holder for keeping marijuana classified as a substance with no accepted medical use in the United States. The United States Supreme Court made it abundantly clear in Gonzales v. Oregon, 546 U.S. 243 (2006) that states decide what is and is not accepted for medical use, not the federal government. NORML’s legal committee just doesn’t get it, or is hiding it for some reason.

There’s a reason the federal government is cracking down on large-scale manufacture and distribution – because the state officials have committed treason by failing to represent the people who elected them to enforce the state laws.

Colorado is asking the DEA to put marijuana in Schedule II without a shred of evidence to back it up. The letter was one page. The letter says the Colorado Legislature thinks marijuana “may have potential” medical use. The Colorado Constitution says marijuana “is” medicine. It’s treason for any state official to say marijuana “may have” when the constitution says “does have.” How the citizens of Colorado are letting these state officials commit treason is beyond belief.

Your constitution in Colorado does not say “may have.” It says marijuana is medicine. Your legislature has enacted an unconstitutional law that says “may have” and you’ve just consented to it. You’re free to give up your rights, but not all of us play that way.

Medical marijuana is not a prescription drug. It isn’t prescribed in any state where it’s legal for medical use. People who make the argument that it’s just a pretense for corporate control by the pharmaceutical companies aren’t looking at the facts. The fact is the plant is most useful in its natural form and the laws in 16 states that have legalized it for medical use all reflect that fact. Marijuana does not belong in Schedule I, but it also does not belong in Schedules II, III, IV, or V because those schedules all contain prescription drugs. So, medical use does lead to legalization. The fact that marijuana is currently classified as “good for nothing” is the problem and medical marijuana is the solution because it proves marijuana is “good for something.” The fact that NORML and its friends are unable to have fun, or whatever “recreational” use means, is just not a compelling argument.

Now, the real question is why the large scale manufacturers and distributors haven’t sued their state officials for failure to represent the will of the people and sue Eric Holder for failing to remove marijuana from it’s current classification as having no accepted medical use in the United States.  It’s like they want the federal government to keep marijuana classified as having no accepted medical use in the United States.  The documentary on the National Geographic channel last month “Marijuana Gold Rush” actually made this argument that as long as it remains illegal under federal law, high risk investors can make a lot of money from it.  What a shame.

This latest round by NORML reminds me of comments Scott Imler made several years ago that got quoted over and over again by the drug warriors. My problem with California is that the state officials have not filed against the U.S. Attorney General for maintaining marijuana in a classification that says it has no accepted medical use in the United States.  California is a state and it’s in the United States. When I read the decision in Gonzales v. Oregon, 546 U.S. 243 (2006), it became clear to me that accepted medical use is defined by state law, not by the 8 factors in 21 U.S.C. 811(c). The DEA can not put marijuana into any of the other four schedules, because it isn’t being sold interstate and it isn’t being prescribed. That would leave it completely unscheduled, which is exactly where it should be.

I think NORML’s comments have stimulated an important discussion.  On the one hand, the medical cannabis industry could provide much needed resources to get the states to demand federal reclassification.  On the other hand, they probably won’t if they’re just in it for the money.  We certainly need to expand production and distribution, but it can’t be done by simply changing state law.  Federal law also has to be changed before it will work.  So, NORML has a point worth considering, even it wasn’t articulated very well.

So, yes, we need a medical cannabis industry, but, no, the model we are seeing develop is severely flawed. The main point I would take issue with NORML over is the idea that cannabis consumers just can’t have any fun unless marijuana is legal. Who is going to get all teary-eyed about that? Medical cannabis is going to result in full legalization, not the other way around. NORML needs to get its priorities in order.

Let’s just take Harborside Health Center for an example.  They gross over $20 million per year.  They just got hit with a $2.5 million IRS tax levy because marijuana is federally classified as a substance with no medical use in the United States.  But, it has accepted medical use in California, which is a state in the United States.  Has California ever sued the U.S. Attorney General, like Oregon sued John Ashcroft for trying to interfere with it’s state assisted suicide law?  No.  Has Harborside sued California for failure to sue Eric Holder?  No.  What’s going on is some kind of relationship between California and Harborside that makes it inconvenient for Harborside to sue California, so the problem just doesn’t get fixed.  California should be paying that $2.5 million IRS tax levy for Harborside, but Harborside is compromised because California allows it to exist in the first place.

With the health benefits of juicing cannabis being revealed, we need large scale production and distribution, and the current dispensary model just isn’t going to fill that need.

Beginning of the legislative process

I attended my precinct caucus last night.  We had ten people.  There was only one platform resolution, mine.  I explained that since the last caucus I had picked up support from the Des Moines Register (opinion poll on February 16, 2010, finding 64% of Iowans in favor of medical marijuana), the Iowa Board of Pharmacy (unanimous ruling on February 17, 2010, to reclassify marijuana as medicine), the Iowa Medical Society, and the Iowa Pharmacy Association.  I explained how I had to sue the Iowa Board of Pharmacy just to get them to consider the issue.  One of the precinct members asked me if I had heard the Office of Drug Control Policy (ODCP) had just filed a bill to keep marijuana classified as non-medical.  I responded that I had been on the phone with the ODCP last week and just received an official response from their office by email the same day as the caucus.  The ODCP is basing their opinion on a 2006 letter from the FDA.  The FDA interprets the federal Controlled Substances Act, not the Iowa Uniform Controlled Substances Act, so I’m going to sue them for violation of state sovereignty.  Grinspoon v. DEA, 828 F.2d 881, 887 (1st Cir. 1987): “Unlike the CSA scheduling restrictions, the FDCA interstate marketing provisions do not apply to drugs manufactured and marketed wholly intrastate. Compare 21 U.S.C. § 801(5) with 21 U.S.C. § 321 (b), 331, 355(a). Thus, it is possible that a substance may have both an accepted medical use and safety for use under medical supervision, even though no one has deemed it necessary to seek approval for interstate marketing.”

2012 Iowa Caucus Resolution

It’s that time again! Time for the Iowa Caucus. Please download a copy of our 2012 caucus resolution and take it with you to the Iowa Caucus on Tuesday night, January 3, 2012. I’m a Democrat, so if you’re a Republican, you’ll have to take out a scissors and trim off the top part. I think you’ll agree, it’s a great resolution and it already has the support of both Republicans and Democrats on the Iowa Board of Pharmacy, the Iowa Medical Society, the Iowa Pharmacy Association, and 64% of Iowans in a Des Moines Register public opinion poll in 2010. Let’s make this happen this year!

Reading the case law – U.S. v. Lopez (1995)

Here’s the opening paragraph from United States v. Lopez, 514 U.S. 549, 551 (1995):

In the Gun-Free School Zones Act of 1990, Congress made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” 18 U.S.C. § 922 (q)(1)(A) (1988 ed., Supp. V). The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress “to regulate Commerce . . . among the several States . . . .” U.S. Const., Art. I, § 8, cl. 3.

This was a case used by Raich in Gonzales v. Raich, 545 U.S. 1 (2005), to support a claim that the Interstate Commerce Clause did not reach personal, intra-state, and state-authorized medical use of marijuana.

Let’s examine the differences in the Gun-Free School Zones Act (GFSZA) and the Controlled Substances Act (CSA).

The GFSZA criminalized the possession of a firearm in a specific set of circumstances.  The CSA regulates the possession of substances and only criminalizes the unauthorized possession of a controlled substance (you can get a prescription and that makes it legal).  So, that is a huge difference.  When Congress creates a license to do something that is not otherwise allowed, you have to make an additional argument that you were denied a license before you can attack the statute itself.  Another twist of the CSA is that you can apply to have substances added, removed, or transferred between, the schedules.

An additional fact of the CSA is that Congress specifically said personal, intra-state possession of controlled substances affects interstate commerce.  That assertion went unchallenged for 35 years until Raich challenged it.  And, of course, unless a fundamental right is at stake, the court uses a “rational basis” analysis to determine whether Congress could have reasonably assumed personal, intra-state possession of controlled substances affects interstate commerce.

So, the CSA:

  1. Regulates a commercial activity.
  2. Associates the activity with interstate commerce.

That is why NORML’s current law suit, Marin Alliance v. Holder, No. 4:11-cv-05349-SBA (U.S. District Court, Northern District of California, Oakland) is going to fail unless NORML amends the complaint to challenge the schedule I classification of marijuana (which is what the U.S. Supreme Court told Raich to do, 545 U.S. at 28 n.37).  I found it interesting that NORML’s year end summary of marijuana law reform claims this lawsuit was their greatest accomplishment of 2011.  Two federal judges have already torn it to shreds.

21 U.S.C. § 801 Note Short Title

This title may be cited as the ‘Controlled Substances Act’.

§ 801. Congressional findings and declarations: controlled substances.

The Congress makes the following findings and declarations:

  • (1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.
  • (2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.
  • (3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because –
    • ( A ) after manufacture, many controlled substances are transported in interstate commerce,
    • ( B ) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and
    • ( C ) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.
  • (4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.
  • (5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.
  • (6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.
  • (7) The United States is a party to the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances.

Arizona’s ridiculous case against the United States

After reading the request from Maricopa County for leave to file a late opposition to the motion to dismiss Arizona’s case, it strikes me that the county should be suing the state, not the federal government.  If the county thinks state law is going to force state employees to violate federal law, then that is a case that should be filed in a state court to have that portion of the law struck as a violation of federal supremacy.  This case should not have been filed in federal court in the first place.  Any problem with a state law should be brought before a state court before going to the federal courts with it.
 
Arizona v. United States, No. 2:11-cv-01072-SRB
United States District Court, District of Arizona (Phoenix Division)

Colorado seeks federal reclassification of marijuana

 
I haven’t seen the letter from the Colorado Department of Revenue yet, but I can tell you what’s wrong with the one sent by Washington and Rhode Island. There are two ways of going about this. The first way is the scientific review of the 8 factors in 21 U.S.C. § 811(c). The second way is the fact states have the right to determine accepted medical use in the United States under 21 U.S.C. § 812(b)(1)(B). Gonzales v. Oregon, 546 U.S. 243 (2006). I’ve seen how the DEA applies those 8 factors before, and none of them says anything about whether a state has accepted marijuana for medical use. Without a demand that the DEA acknowledge states’ rights to accept the medical use of marijuana, these petitions will take forever and they will be denied when it’s all said and done, just like the U.S. Commission on Marihuana was ignored in 1972 and DEA’s Chief Administrative Law Judge Francis Young was ignored in 1989.