January 12, 2012
“I’m not going to oppose it.” — Colorado Attorney General John Suthers, when asked about a federal attack on Colorado’s medical marijuana dispensaries.
It is hard to find a better, more hardworking lawyer than Suthers, whom The Gazette enthusiastically endorsed for re-election in 2010. Our endorsement was made with full knowledge of a troubling bias that Suthers allows to affect his job. He abhors the decision of Colorado residents — his clients — that legalized medicinal marijuana, including sale and distribution. Amendment 20 states: “‘Medical use’ means the acquisition, possession, production, use, or transportation of marijuana ...” Since nothing is acquired, possessed, produced, used or transported for free, this law protects commerce.
The United States Constitution was written to severely limit federal authority. The 10th Amendment says the federal government has no authority that is not specifically granted in the Constitution, and plainly states that all other authority belongs to states or the people. That part of the Constitution is the basis of Suthers’ brilliant lawsuit to overturn Obamacare. He rightly insists that federal agencies cannot demand that Coloradans buy health insurance.
Suthers’ own website says he was elected to defend “the legal interests of the people of the State of Colorado and its sovereignty” (emphasis ours). Just as Suthers defends Coloradans from a health care law that threatens state sovereignty, he should defend their decision to legalize sales and use of medical marijuana. He doesn’t like the law for good reasons. He fears it makes drugs more widely available, even to children. Nevertheless, he swore to uphold all Colorado laws — not just those he agrees with.
In 2009, then-Deputy Attorney General David Ogden issued a memo instructing federal prosecutors to avoid directing resources at people making use of state medical marijuana laws. It was a move that favored states’ rights and the 10th Amendment. Ogden’s replacement, James Cole, created a bait-and-switch dilemma with a June memo that said state medical marijuana laws do not provide immunity from federal control. Subsequently, Colorado U.S. Attorney John Walsh sent letters to 23 marijuana retailers on Thursday, telling them their property will be seized and forfeited “if they do not discontinue the sale and/or distribution of marijuana within 45 days.” The 23 were selected because of proximity to schools, and it is safe to predict that other criteria will be used for future federal threats.
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Nothing in the Constitution grants federal agents authority to violate Colorado’s Amendment 20. A 6-3 ruling in 2005 by the United States Supreme Court (Gonzales v. Raich) states that federal authorities are authorized by the Constitution’s Commerce Clause to regulate medical marijuana. It is blatant judicial activism, as the Commerce Clause authorizes regulation only of commerce “among the several states,” with Indian tribes and foreign nations. Medical marijuana sales are exclusively intrastate, as one must be a resident to obtain a license to buy or sell. If Suthers doesn’t consider the interstate commerce excuse absurd, he’ll have a hard time complaining if the court says the Commerce Clause allows Obamacare.
Mr. Suthers, please seek injunctive relief from this attack on your state’s sovereignty.
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