POSTED AT 10:01 PM ON Oct. 26, 2009 | PRINT | Email | SHARE | COMMENTS (3)

The Obama Justice Department issued a memo Oct. 19 that discourages federal attorneys from prosecuting patients and providers for use or provision of medical marijuana if their actions are within state law.

This decision, like most of those made by federal administrations on drug policy, raises more questions than it answers.

The most worrisome question the decision raises is why President Barack Obama and Attorney General Eric Holder consider it prudent policy in any case to advise federal attorneys not to enforce federal laws that take precedence over state laws, regardless of the particular laws involved.

One would think that two accomplished lawyers would be familiar with Article VI of the Constitution, which asserts the supremacy of federal laws in all cases.

As a way of putting this decision into perspective, imagine the reaction to a future administration’s decision not to prosecute owners of military-grade weapons in a state that legalized such possession, in violation of federal law. Negative? We’d venture to bet on it.

A related issue created by this memo is the precarious legal position in which it puts doctors and their patients in the 14 states where some form of medical marijuana is legal.

Because the memo does not rule out the possibility that federal prosecutors may resume prosecuting offenses of the federal law at any time, these people are in an even worse position to understand what they can and cannot do under the law.

They have gone from knowingly violating federal laws while complying with state laws and being mindful of the threat of prosecution to knowingly complying with state laws while being uncertain of whether the federal government even considers their activity criminal any longer.

Also disconcerting is the political aspect of this move.

By merely curtailing enforcement of federal drug laws instead of changing them, the president has added fuel to the fire of skepticism that increasingly disputes his claim that his administration marks a departure from the “politics of the past.”

This is because such a move allows him to placate advocates of legalization by pointing to a softening of the federal stance on marijuana while leaving the door open to resuming tough enforcement in case doing so becomes politically popular.
This obvious evasion of taking a principled, firm stance calls into question his commitment to changing Washington’s culture in general.

If the Obama administration’s objective is to make medical marijuana legal, it should do so through the proper legal channels (the legislative process comes to mind). The rule of law and our federal system are ill-served by half-measures like this memo.