by Sen. Doug Whitsett
Despite the recent passage of Measure 91 in Oregon’s November general election, state laws allowing the recreational and medicinal use of marijuana are in direct conflict with the Controlled Substances Act that was enacted by Congress in 1970.
When passing that law, Congress determined that marijuana must be listed as a Schedule I drug. It reasoned that the drug has a high potential for abuse, and that acceptable safety standards for its use have not been established.
Our federal elected representatives concluded that the use of marijuana was unsafe, with or without medical supervision.
Ballot Measures have since been enacted in Colorado, Oregon and Washington that decriminalize the possession of small amounts of marijuana for recreational and medicinal use.
Such measures operate only under the laws of those states. They neither change, nor have any effect on, the Controlled Substance Act.
As such, marijuana continues to be a Schedule I controlled substance, across all states and U.S. territories, under the controlling federal law.
The United States Department of Justice (DOJ) outlined how the current administration intends to address the conflicting laws in this memorandum that was issued in August of 2013.
In the memo, the DOJ spells out that it expects the states that legalize the production, distribution and possession of marijuana to establish strict regulatory schemes.
These strategies must be tough in practice, not just on paper. They must include strong and adequately funded, state-based law enforcement. The Memorandum identifies eight overarching federal interests that must be protected:
- The states must prevent the distribution of marijuana to minors.
- The states must actively counteract any transfer of marijuana, or marijuana products, across state lines.
- The sale of marijuana must be structured to prevent any revenue from going to criminal enterprises, gangs or cartels.
- Further, state-authorized marijuana activity must be prohibited from being used as a cover, or pretext, for the trafficking of other illegal drugs, or for any other illegal activity.
- The states must prevent the use of firearms, or any violence, in the cultivation and distribution of marijuana.
- Driving under the influence of marijuana must be prevented.
- Further, the states must prevent the exacerbation of any other adverse effects on public health that are associated with the use of marijuana.
- Finally, the states must strictly prohibit the production, distribution, possession and use of marijuana on federal property.
The Memorandum instructs DOJ attorneys, and law enforcement officers, to focus their resources on the enforcement of these priorities, regardless of state law. Those federal officials are instructed to vigorously investigate and prosecute individuals or organizations that violate any of these Federal priorities.
These instructions only reflect the position of the current President and his Department of Justice. They in no way bind the actions of future administrations.
A more conservative and more constitutionally oriented future President may decide to fully enforce the regulatory authority of the Controlled Substance Act. The potentially criminal consequences of such a scenario have not yet become apparent, but do exist nonetheless. That would create quite the predicament for states that have gone ahead with legalization measures despite the continued federal prohibitions.
In my opinion, Oregonians should carefully consider these realities before investing in marijuana-related activity.
Senator Doug Whitsett is the Republican state senator representing Senate District 28 – Klamath Falls