Today, Gov. Jan Brewer announced that she has asked AZ AG Tom Horne to file suit in Federal court regarding the Constitutionality of AZ's medical marijuana law, by the end of the week. The issue revolves around marijuana being classified as a Schedule 1 drug under the Controlled Substances Act passed by Congress in 1970.
This diary will attempt to discuss, as dispassionately as possible, what arguments the AG will likely use, and what is likely happen with the litigation; also a brief discussion of the mess the AZ MMJ law and industry already is (I guess that wasn't so disapassionate, but you know me, I'm not big into sugar coatings). I realize a lot of people here hate Brewer, but in fairness, this litigation was inevitable, and if she didn't institute proceedings, it is likely that Montana would have done something similar. Consider this story, for example.
I am writing this more or less quick and dirty, so please forgive me if the analysis is too superficial for the gentle reader.
Introduction:
There are MMJ statutes in 16 states, with I believe 3 more coming online soon. The issue with MMJ revolves around marijuana being classified as a Schedule 1 drug by theFederal Controlled Substances Act of 1970. The Schedule 1 classification more or less gives the Federal government a monopoly on the drug.
Elements of a Schedule 1 drug:
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has no currently accepted medical use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.
As such, no prescriptions may be written for Schedule I substances, and such substances are subject to production quotas by the DEA.
MMJ Jurisprudence:
The current seminal MMJ case is Gonzales v Raich, 545 U.S. 1.
In Raich, the court held that the Commerce Clause preempted a California state statute which allowed for home cultivation and use of marijuana for medical patients under a compassionate use doctrine.
Basically, while the activists will disagree , the Court's decision was more or less correct. The case duplicates pretty much the scenario in Wickard v. Filburn, which is a case every Con Law student encounters during discussion of the Commerce Clause.
Actually, if you look closely at the decision of the Court, written by John Paul Stevens, Stevens pretty much gives a roadmap which argument might have worked and why the Commerce Clause argument didn't. Frankly, I don't quite understand why these arguments weren't employed and respondent's counsel decision to put all their eggs in one basket was interesting to say the least. My best guess is that they were afraid of a broader decision favoring Federalism
Since then, sixteen states have legalized MMJ, three more are online, and California will likely put Prop 19, the sequel, on the ballot next year. Prop 19 is about 100% legalization, not MMJ. As a longtime friend of VV, an industry insider, puts it, "the genie's out of the bottle and it ain't going back in". Besides, what's the DEA going to do, invade California?
Potential Arguments In The Forthcoming Litigation:
USCA 10: Basically, this is a two part argument. Part I is the text of the 10th Amendment, which states, "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."
Since health and welfare of the citizenry is traditionally a state law issue, one would think that this argument is a slam dunk. The problem is that in Consitutional Law jurisprudence, the 10th really hasn't been taken seriously as an argument, and given about the same amount of respect as Rodney Dangerfield. The text and legal significance of the 10th amendment is often considered to be a truism. In United States v. Sprague (1931) the Supreme Court stated that the amendment "added nothing to the [Constitution] as originally ratified."
So, on one side of the coin you have what on the surface is a powerful argument, but in practice carries little weight with the court.
14th Amendment/Equal Protection/Due Process:
Generally when analyzing a statute regarding it's Constitutionality, to determine the level of scrutiny, it first must be determined whether or not the statute targets a "protected class" of citizens. The issue here is whether MMJ patients would be in such a class. Since MMJ is considered to be an alternative method of healing, it is unlikely a typical MMJ patient would be in such a "protected class"-too general, and not one specifically prone to discrimination and harassment, the two key buzzwords here. So, the statute is going to be reviewed under "rational basis" level of scrutiny, which generally means that a court will rubber stamp it's Constitutionality, because it must give the legislature which enacted the statute great deference, lest there be a separation of powers issue.
Now...while rational review is a rubber stamp, it is not a 100% one. The most famous case involving rational review was Lawrence v. Texas, known to most here, but the court decided to invalidate a statute on rational review, because it didn't want to make gays a protected class.
Another similar case is City of Cleburne v. Cleburne Living Center. In Cleburne, Cleburne Living Center, Inc. (CLC) submitted a permit application seeking approval to build a group home for the mentally retarded. The city of Cleburne, Texas refused to grant CLC a permit on the basis of a municipal zoning ordinance. CLC then sued the City of Cleburne on the theory that the denial of the permit violated the Equal Protection rights of CLC and their potential residents.
Again, applying rational basis review, the U.S. Supreme Court struck down the ordinance as applied to CLC. The rational review decision was to avoid having to classify the handicapped or quasi-handicapped as a protected class.
The similarities between the groups involved in Lawrence and Cleburne are very close to identical to MMA patients. Definitely disfavored in the eyes of the statute in question, but no sot much so where the court feels they need to create a protected class.
As the AZ litigation will certainly reach the SCOTUS (and highly likely it will be consolidated litigation with several other states, especially California, because both are in the 9th Circuit and there's no way CA MMJ political interests are going to let an AZ Federal judge decide the law in their state, getting involved in the act).
Federal Substantive & Procedural Due Process:
Basically, this analysis would call into question the accuracy of Congress' findings. A quick look at marijuana's placing into Schedule 1 would note that it's about the only drug in Schedule 1 where it's virtually impossible to overdose. Consider this 1988 finding of fact here; so it's not exactly breaking news to the Federal judiciary.
Such inaccuracy, if found as much by a court, would render Congress' finding as a Schedule 1 drug unconstitutional.
The Real Problem With Arizona
The real problem with Arizona is several-fold. First, the statute (as a lot of MMJ statutes have been unfortunately) was poorly written, and unconstitutional in many respects: the zoning, various municipalities deciding to zone out MMJ in violation of state law, the discrimination against non-residents, the patent opaqueness of the selection process, with arbitrary decision making to be made by the AZ Department of Health and Human Services with zero transparency whatsoever. I mean, it is a hot toxic mess on wheels.
I mean, this statue was so poorly written, I was actually considering sending my resume to Jordan Rose and Richard Keyt, the Phoenix-based two leading AZ MMJ lawyers, because they're going to need an army of lawyers with all the litigation that would be coming down the pike had Brewer not put the statute on hold. Oh yeah, it's also pretty good to be a commercial RE broker right now-this is like the Gold Rush of the 21st Century.
The Real Real Problem With Arizona
As stated above, any AZ Federal Court decision would impact CA, as CA sits in the 9th Judicial Circuit with AZ. MMJ is estimated to be a $15B/year business in CA, and as stated above, Prop 19, v 2.0 will be back on the ballot in November 2012, and IMHO it has no worse than a 45% chance of passing (if I had to make a line, I'd say pick'em right now). I don't see the powerful MMJ political interests that are based in CA wanting an AZ trial court judge, one who is traditionally conservative, making a decision which impacts their constituency.
Now to be honest with you, you are going to have a zillion briefs on both sides of the litigation. You are going to have petitions to consolidate litigation, and the CA Attorney General, Kamala Harris, might bring her own action in CA, hoping to get a friendlier judge. Since MMJ interests donated heavily to her successful campaign, what Ms. Harris decides to do (or should I say what the MMJ industry would like her to do) will give the reader a pretty good idea how the wind is blowing politically.
Some Final Comments
Personally, I think 100% MMJ is going to happen. When I see articles like this oneshow up in the MSM, to my mind, the fix is in. I mean, with our government and corporatism, the fix is always in, usually though the money's been made when articles like this one appears. It's not a question of one genie being out of the bottle, it's sixteen genies out of the bottle.
I was back in MI last week, hanging out with Papa Vegas, who before he became a self-made multimillionaire was a hardcore pro-labor Dem. Along the way he became a hardcore Fox News addicted Republican (although to his credit, he realized Witless was a tool around 2003; he also voted twice for Jennifer Granholm, and donated to her campaigns). Although he is still addicted to Fox News, and is 80 years old, he amazed me at lunch last week railing against drug laws, and wondering why we put otherwise law abiding people in jail. See, at the end of the day, Papa Vegas hates politicians and paying taxes. He doesn't understand why we blow so much taxpayer dough on jails and incarceration (he got particularly steamed when I pointed out that CA spends more on incarcerating people than educating them).
Where I'm going with this is when government can no longer fool the people why we really have drug laws (the enlightened will cheerfully tell you it's about protecting monopolies and dividing the masses, nothing more), it will become time for a change.
I mean, consider two the DEA Agents, Compean and Ramos, doing hard time in a Federal prison for shooting (justifiably, under the facts as I know them) a marijuana runner. Compean's and Ramos' apparent mistake was shooting a guy who had more juice with the Feds than the two agents themselves. This case was so outrageous, it steamed the (non-Witless lapdog) hard right more than it did the DKos-dominated left. You know the fix was in when Witless specifically directed longtime Bush family crony and US Attorney for Western District of Texas Johnny Sutton to prosecute Compean and Ramos personally. (By the way, the judicial and prosecutorial misconduct was outrageous, but was covered up, in spite of people like Lou Dobbs trying to shine a light on it).
Make no mistake, whoever gets the case in AZ will do the politically correct thing. It won't be anything about merits of the law or anything really important like that. The case is going all the way up the food chain anyway, and it will likely be fast tracked. There could be a decision before the 2012 elections.
You do have a significant faction of the CA MMJ industry that really prefers the status quo-it's truly about the Benjamins and protecting those, and nothing more. They can't be too happy over this, either, but you never know.
In summation, courts are supposed to protect minority interests and protect the citizenry against the evils of government. MMJ is something the people clearly want, as evidenced by it's legality, either by referendum or legislative action in 16 states. The government's legal arguments are flimsy at best, but remember, they have home court advantage-many judges are corporate attorneys or former Federal prosecutors who are career Government employees. We'll see what happens, but no need to be pessimistic yet. Actually, it's going to be very interesting.