Deep Roots for Medical Marijuana Crackdown

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In what seems to be a bit of a surprise to the news media, federal prosecutors are taking a look at charging the medical marijuana industry in California and Washington. A typical report from the Seattle Times tells of looming crackdowns and increased enforcement.

Mentioned are 45-day “shutdown” notices issued by prosecutors in California and a worry that the federal hard-line enforcement may spread to other states. While it is true that efforts are being ramped up to deal with federal violations of the Controlled Substance Act – specifically marijuana dispensaries – the writing has been on the wall since at least July.

In July of this year, the so-called, “Ogden memo” was revisited by the U.S. Attorney General’s office. The 2009 memo outlined a soft approach that largely avoided stepping on state laws about marijuana. The newly revised policy reads, in part:
”Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA (Controlled Substance Act).”

No surprises and a three-month notice. The only surprise is how long it took for this new directive to percolate down to regional Deputy Attorney General’s offices.

So now we can expect to see arrests and subsequent court challenges about state’s rights and the supremacy of federal laws. In the general case, federal law triumphs under the commerce clause of the US Constitution, although that remains to be seen in these cases. One possible outcome is removing the thorn in the Justice Department’s side: wholesale and flagrant violation of the CSA. As long as the “personal use” stays personal and out of commercial scale operations, they can more easily turn a blind eye to what’s going on. After all, Alaska has had legal marijuana in the home (and grown in the home) for three decades.

It seems like quantity is the real issue here.

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