Obama is Wrong about Medical Marijuana as Well

July 6, 2011

Presidents are supposed to be compassionate.  President Obama is showing his true colors as his Department of Justice (DOJ) sent out a memo last week on medical marijuana use.  The memo directed the head of the Drug Enforcement Administration and U.S. Attorneys’ offices nationwide to crack down on medical marijuana shops by making the investigation and prosecution thereof a top priority.  Even though the (DOJ) denies it, this newest memo reverses the Administration’s previous policy on medical marijuana use.  Under the so-called “Ogden memo of 2009, Obama gave habitual pain sufferers and the terminally ill “hope”  by making enforcement of the Controlled Substances Act (CSA) with regards to medical marijuana use a low priority.  His election cycle about face is uncompassionate as it will bring great harm to many who rely on cannabis for relief.

It has been determined that medical pot is effective in treating the symptoms of cancer, AIDS, multiple sclerosis, glaucoma, and epilepsy.  As far back as 1975, the New England Journal of Medicine published a study that showed oral ingestion of marijuana is effective in relieving nausea and vomiting caused by chemotherapy.  Other benefits include the lessening of depression caused by cancer and an increase in appetite which allows cancer patients to live better more comfortable lives.

But the Administration is bent on denying this needed drug to patients.  In last week’s DOJ memo, the reason given for increased enforcement of the CSA was that, “Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large scale criminal enterprises, gangs, and cartels.”  Well, in the first place, marijuana’s danger is surely negated by the medical benefits of the substance.  In the second place, the reason criminal gangs and cartels are making so much money on pot is precisely because Congress has made it illegal!  Is there no sanity in Washington?

In the final analysis this is not the federal government’s issue to legislate.  Article 1 Section 8 of the Constitution does not give Congress the authority to regulate what we ingest into our bodies.  The 10th Amendment reserves that power to the states.  Referring back to the memo, it states that individuals, who cultivate, sell or distribute marijuana “…are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA.”  Nonsense, just because Congress doesn’t consult the Constitution before enacting legislation doesn’t mean what it says goes.  It is proper and necessary for the states to interpret the Constitution and in this case take a stand against the federal government for violating their sovereignty over substance policy by nullifying the CSA.

Of course the President could nullify the CSA as well in much the same way he has stated that he will rightly nullify the Defense of Marriage Act.  He simply could refuse to enforce the law.  But, he answered that question in the memo released by his DOJ last week.  Apparently, political points are more important to the President than relief for the suffering and the supremacy of the Constitution.

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina

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What’s Good for the Goose is Good for the Gander

March 2, 2011

Last week the Justice Department announced that it would no longer enforce the Defense of Marriage Act (DOMA).  Passed by huge bipartisan majorities in both chambers of Congress and signed into law by President Clinton in 1996, DOMA defines a legal marriage as one between a man and a woman.  Additionally, the act shields each state from having to legally recognize same sex marriages permitted in other states.  In making the announcement, Attorney General Holder said the decision was based on his and the president’s opinion that the law was unconstitutional.

Now, naturally, the Obama Administration’s announcement has angered many on the right.  Newt Gingrich, one of the right’s main moral barometers, thinks Obama has a constitutional duty to enforce the law and if he doesn’t he hinted that he possibly should be impeached.  The former Speaker of the House was quoted recently as saying,

“I believe the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job.  His job is to enforce the rule of law and for us to start replacing the rule of law with the rule of Obama is a very dangerous precedent.”

It’s a big surprise that Gingrich would come out against the president like this.  Of course I am kidding.  It is not a surprise at all given Newt’s interest in the office Obama currently occupies.  What is also not a surprise is that Gingrich is way off base in his analysis.  Under our separation of powers, Congress really can’t tell the president what to do.  What Gingrich is doing harkens back to the impeachment of President Andrew Johnson in 1868.  Johnson, a Democrat, disagreed with the fascist policies of the Radical Republicans toward the South after the Civil War.  The last straw was his firing of Secretary of War Edwin M. Stanton in violation of the newly passed (over Johnson’s veto) Tenure of Office Act.  The Act denied the president the power to remove anyone from office who was appointed by a previous president without the advice and consent of the Senate.  In the end, Johnson was acquitted by the Senate and the Supreme Court ruled the Tenure of Office Act unconstitutional in 1926 consequently upholding the separation of powers between the Executive and Legislative branches.

To even hint that by not enforcing an act of Congress Obama is committing an impeachable offense is producing a dangerous precedent.  Article 2 Section 4 of the U.S. Constitution is clear about what grounds must exist in order for the House of Representatives to undertake impeachment proceedings against the president.  They include acts of “treason, bribery, or other high crimes and misdemeanors”.  In other words impeachment is for crimes committed not for not carrying out one’s duties.  In our system of governance the American people can vote the president out of office at the next election.  That is the beauty of Democracy.

Thus, the president is within his right to refuse to enforce or “nullify” an act of Congress.  But what is interesting is the two-faced position of the president in this circumstance.  For, while he clearly believes that as president he has the right to nullify an act of Congress, he surely would not agree that juries and states have the same right.

Recently in a Manhattan federal courtroom 78 year old Julian P. Heicklen was arraigned for violating a federal law against jury tampering.  Since 2009, the retired Heicklen has stood outside courthouses handing out pamphlets to potential jurors informing them that they have the power to ignore laws they deem unconstitutional and render verdicts based on their conscience.  This practice is known as jury nullification and usually applies to so-called victimless crimes dealing with guns, drugs, gambling, etc…

Of course, then there is the much hated Obamacare.  At least 7 states, Idaho, Maine, Montana, Oregon, Nebraska, Texas, and Wyoming have either started the process of passing laws nullifying Obamacare or are considering such laws.  Essentially these laws state that Obamacare is unconstitutional and will not be enforced.  If Obama was consistent he would pardon Heicklen and if the time comes recognize the states’ right to nullify his beloved health care boondoggle.

Because what it really comes down to is the old saying, “What’s good for the goose is good for the gander”.  If the president is going to claim the right to ignore a law passed by Congress then he ought to also recognize the right of other entities to do the same.  Double standards in government must end.  Nullification is another mechanism of checking the power of government.  It is an important safeguard against tyranny of the majority.  It is a means to snuff out unconstitutional laws like the one President Obama is nullifying.

Article first published as What’s Good for the Goose is Good for the Gander on Blogcritics.