Bold and innovative. That’s what Ethan Nadelmann, Executive Director of the Drug Policy Alliance, said he’s looking for in proposed reform. The rest of drug policy shares this sentiment and has long been calling for something that could shape the future of reform. My friends, a group in Ohio is trying to do just that. The Ohio Medical Cannabis Amendment proposes a brand new model for medical marijuana that may very well be the game changer we’ve all been waiting for.
What does it do? First off, part of the OMCA’s beauty is its simplicity. Go look and attempt to read other states’ medical marijuana laws. Most are extremely long and riddled with specific regulation. In fact, if you’re not bored to tears after the first page, you might notice that most of the laws look similar to each other. Not the OMCA. It’s a 2 page amendment that very simply establishes rights for medical marijuana patients and delegates the rulemaking powers to a Commission of Cannabis Control.
Both of these functions are extremely important–I’ll explain why in turn.
The Rights. The OMCA states plainly and specifically that an eligible patient has the right to use, grow, and purchase medical marijuana to alleviate their suffering. No other medical marijuana law contains this language. Rather, other states with medical marijuana simply decriminalize the use and possession for patients, thus making it a privilege, not a right. This distinction has tremendous legal significance in the fight against the federal government because a privilege is prone to governmental interference without justification, whereas a right is subject to a higher level of scrutiny.
The OMCA also gives eligible patients the rights of confidentiality and privacy with respect to their medical marijuana use. These rights are not present in current medical marijuana laws. In fact, the opposite is true. Many states are free to hand over their patients’ information to any federal agency that asks, while other states have 24 hour live-feed cameras to the police. None of these practices would exist in Ohio under the OMCA. “HIPAA applies to our patients for every other aspect of their medical care, so why shouldn’t it apply to our patient’s use of medical marijuana as well?” said Theresa Daniello, spokesperson for the OMCA. I agree.
Taking things one step further, the OMCA grants eligible patients the right to be free from state discrimination and interference with respect to their medical marijuana use. It also charges the State of Ohio with upholding and defending the rights listed in the OMCA. These two provisions combined are amazing for medical marijuana patients. What this essentially amounts to is a direct prohibition on any state employee of Ohio from discriminating or interfering with medical marijuana patients. Police would not be free to choose the federal law and join a DEA raid. Further, Ohio’s Attorney General would not be able to just idly stand by while medical marijuana patients are raided either, he’d be charged with challenging federal intervention. Once more, medical marijuana laws elsewhere lack these provisions.
Last, but not least, the OMCA extends broad rights for the existence of a medical marijuana industry in Ohio. “We wanted to avoid problems present in states like Michigan, where there is some debate as to the legality of the sale of medical marijuana.” said OMCA’s general counsel Mark Ramach. “By providing for the rights of the industry to exist, our patients are protected in every facet of their medical marijuana use. Our goal in crafting the OMCA was to keep patients’ rights first at all times. The rights granted are a result of that goal.” The rights granted by the OMCA address most of the pitfalls in previous medical marijuana legislation. Any remaining issues are handled thanks to OMCA’s commission.
The Commission. The OMCA seeks to avoid the headaches of other states by delegating rulemaking authority to a Commission of Cannabis Control. In doing so, the OMCA won’t be victim to problems present in other medical marijuana states that resulted from a lack of foresight in the law’s implementation. Allow me to explain. In the past, medical marijuana laws have been written with regulation in the language. Such regulation has set possession limits, governed the purchase and sale, and delegated conflicting powers to both state and local governments. What those laws haven’t come with, however, is an efficient and effective way to create or change regulation to address problems as they arise.
Enter the OMCA and its commission. This commission will be able to provide regulation for the medical marijuana industry in Ohio and will operate much like other regulatory bodies do in this country. Hearings will be public, and the people will have a say in proposed rules. The commission’s ability to create and modify regulation is vital in medical marijuana policy. It’ll provide an adaptable industry structure that can change over time in response to new scientific and medical studies. In short, Ohio won’t be victim to unforeseen circumstances–were there ever to be a problem, the Commission could fix it.
To further ensure proper rulemaking, all members of the Commission are charged, via the OMCA’s language, with creating regulation that upholds and defends the rights given by the amendment. This guarantees that patients’ rights are always kept first and that regulation is made in a way that best protects the patients. The Commission will also be key in handling the federal government, were it to intervene. This brings me to my last point.
What about the Feds? The OMCA brings a new approach to the federal problem. In order to fully understand its significance, once must know how Gonzalez v. Raich changed the game. Most by now know about Angel Raich and how the DEA raided her place and took her plants. Ms. Raich eventually challenged this action and found her way to the U.S. Supreme Court. Despite testimony from Angel Raich’s doctor that Ms. Raich would die without use of her medical marijuana and regardless of the fact that Ms. Raich grew her own marijuana in her own house, never to sell to others or cross state lines, the Supreme Court held that Congress could use the Commerce Clause to regulate marijuana and thus the DEA raid was proper. Prior to Raich, the Court had not yet ruled on this question. This ruling opened the door for the continuous raids that we see to this day.
The logic behind the Court’s reasoning is heavily debated and often difficult to explain, but it basically goes like this. So long as Congress is properly exercising an enumerated power, it can limit what states do. One of Congress’s enumerated powers is the Commerce Clause. This clause gives Congress the power to regulate commerce among the States. Basically, anything that moves from state to state (or interstate), Congress can regulate. They can also regulate things like the roads, rivers, and airways. In 1942, the Supreme Court further interpreted the power to mean that Congress could regulate anything that, in the aggregate, has a substantial affect on interstate commerce.
Fast-forward to Raich. Raich did not purchase her marijuana outside of California. She was not going to sell it in or outside state lines. She grew it in California and was only going to use it personally. The Government argued that these actions, if everyone did it, would affect the black market on marijuana in the aggregate and therefore affect interstate commerce. There was no proof that Raich’s actions actually had this effect, or that medical marijuana patient’s in general growing their own would have that big of an impact on the black market, but the Court said it didn’t matter. This decision basically closed the door on challenging the federal government on Commerce Clause principles.
What does all of this have to do with the OMCA? Well, the OMCA is a constitutional amendment that creates rights for medical marijuana patients in Ohio. Raich had to pursue her case using theories that came from California’s law, which is a state statute that does not have an affirmative grant of rights. In short, California’s language limited potential constitutional claims Raich could have brought. By specifically granting rights to its patients, the OMCA opens the door for new challenges against federal intervention.
Up until now, the federal government has hidden behind marijuana’s federal status as a schedule 1 drug without having to justify its position against the overwhelming medical evidence to the contrary. Every court case related to medical marijuana has been decided on legal technicalities and not on the actual merits of whether marijuana in fact is medicine. The OMCA could force that discussion once and for all. Imagine the federal government having to justify its stance towards marijuana in light of Ohio’s constitutional command that its sick citizens have the right to use, possess, and grow it. From what I’ve been told, this would bring up areas of constitutional law that have not seen a court room in some time.
Progress is slow, legal progress even slower. With that in mind however, simply having the ability to bring a new argument against the federal government puts our cause in a better position than ever before. The OMCA is the real deal. For more information on it and the group behind the language, check out www.omca2012.org If you’re like me, and are already sold and want to do your part to help, please check out www.omca2012.org/donate .