August 28, 2013

Cato Institute, DPA, LEAP Issue Brief Defending Marijuana Independence For States

August 28, 2013
supreme court marijuana

michigan supreme court marijuanaA trio of national drug policy reform organizations have filed an amicus brief in a Michigan Supreme Court case that could have broad implications for the 20 states who have currently authorized the medicinal use of marijuana- and any other state pondering the issue.

July 31, 2012 the Court of Appeals granted a victory to attorney John Ter Beek from Wyoming, Michigan. He had sued his city to prevent them from citing federal law to overrule state law with respect to the use and possession of marijuana for the treatment of illness or injury by a registered patient.  The city appealed the ruling and the Michigan Supreme Court agreed to hear the case.

When the Court accepted the case of Ter Beek v Wyoming for review, it declared they would look beyond the issue before them- whether local communities could cite federal law when banning activities allowed under the Michigan Medical Marihuana Act  (MMA)- and decide for themselves if federal drug laws nullify the 4-year old, voter initiative- created MMA.

Apparently, people listened.

Five briefs by outside parties have been added to the documents filed by plaintiff and defendant, making this a very weighty case for the Justices to consider. Four of the briefs are from groups not known for their support of marijuana law reform; the Cato amicus is the only supplemental filing that supports the rights of local or state government to embrace laws that vary from the Controlled Substances Act.

                Read the Cato Institute amicus brief at: ter_beek_v._wyoming_amicus_brief

The Cato Brief

The three national drug law reform organizations are described in their brief in this way:

Law Enforcement Against Prohibition (LEAP) is an international nonprofit organization of over 100,000 current and former law enforcement professionals and other supporters who are speaking out about the failures of our existing drug policies.

Drug Policy Alliance (DPA) is the nation’s leading advocacy organization devoted to advancing those policies and attitudes that best reduce the harms of both drug misuse and drug prohibition, and to promote the sovereignty of individuals over their minds and bodies.

The Cato Institute was established in 1977 as a nonpartisan public policy research foundation dedicated to advancing the principles of individual liberty, free markets, and limited government.

The amicus was submitted by Lansing powerhouse attorney Richard McLellan but it was principally written by Vanderbilt University Law School professor Robert Mikos, who liberally inserts quotes from his own publications throughout the brief.

The argument against federal preemption centers around the definition of preemption itself- and which acts can be classified as federal commandeering of state authority. The Cato brief states that “the anti-commandeering rule requires Congress “to internalize the financial and political costs of its actions by prohibiting it from making state institutions enforce federal law” .”

States are restricted from controlling certain activities, like immigration policy, but they are generally not required to enforce all aspects of federal law.

“A clear principle emerges from these cases: courts must draw a line between state regulation and state de-regulation (or non-regulation). Per the Supremacy Clause, states need  Congress’s acquiescence to regulate private conduct that Congress also regulates; but under the anticommandeering rule, they can always refuse to regulate that conduct.”

From the brief:

In the present controversy, the implications of the anticommandeering rule are clear: Michigan may refuse to employ its own coercive powers and resources against residents who possess, cultivate, and distribute marijuana for medical purposes… Whatever may have motivated Michigan voters to support the MMMA, their decision to refuse to help the federal government wage its campaign against medical marijuana is one they are constitutionally entitled to make.

One of the sections within the brief is titled, “Congress may not force Michigan to ban marijuana just because it disagrees with the state’s stance on the drug’s medicinal value or the utility of prohibiting it.” Another section carries the title, “Congress may not force Michigan to ban medical marijuana in order to advance federal policy objectives.” The arguments are effective and the distinction between preemption and anticommandeering is clearly defined.

Local Enforcement of Federal Policy

The Cato brief authors intentionally address only the issue of federal law preempting the MMA and by design leaves the issue of a city’s use of federal law to ban marijuana-related activities to the Ter Beek legal team.

Original briefs were filed by the defendant, attorneys representing the city of Wyoming, and the plaintiff, whose brief was authored by Dan Korobkin of the Michigan ACLU. Other parties filing amici were the State Bar of Michigan, the Michigan Municipal League, the Prosecuting Attorneys Association of Michigan and attorneys representing Livonia, Michigan.

Past experience indicates the prosecuting attorneys and the State Bar will side with the Michigan Municipal League in supporting Wyoming in their effort to ban compassionate use of cannabis within city limits; Livonia already fought this battle in their case against the Lotts, and their position is well known. That places the negotiating duties squarely on Korobkin’s shoulders to defend citizen’s rights and the Cato Institute, et al, to defend the MMA.

It seems unlikely the Michigan’s Supreme Court would rule that federal law nullifies the MMA, but should that  happen it would empower prohibition-minded courts and legislatures in other states to try similar efforts to oust or block pro-marijuana laws. Any ruling that impedes a state’s ability to govern itself in this way would certainly be appealed to the United States Supreme Court.

For all the filing dates and details on the individual briefs in the Ter Beek case, visit:

Source: The Compassion Chronicles


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