By Seth Richardson
Colorado has the most carefully-regulated medical marijuana industry in the nation. Every plant is tracked from seed to consumption to ensure that it is used only in Colorado by authorized medical patients and that every seed, stem, leaf and bud stays in Colorado. Even the destruction of unused parts of the plant is closely regulated and documented. If ever there was commerce that cannot be defined as “commerce among the several states” it’s Colorado’s internal commerce in medical marijuana.
The federal government derives its authority to regulate marijuana based on the U.S. Constitution’s commerce clause authority which permits Congress to regulate commerce “among the several states.” This constitutional authority has been grossly distorted over the decades by politicians and judges and like a rubber sheet has been stretched and expanded so that it now covers quite literally almost all commerce that takes place anywhere in the United States or abroad under the Supreme Court approved rubric that commerce within a state may “affect” commerce outside that state.
This expansion of federal power and control began long ago, in 1824 with the declaration of Chief Justice John Marshall in Gibbons v. Ogden, where he wrote, “This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.” But in that same ruling Marshall admitted that Congress’ power to regulate commerce is not plenary. He wrote, “The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State.” (emphasis added)
For more than a hundred years after Marshall’s ruling, the federal government largely confined itself to actually regulating commerce that passed between states. But during the Roosevelt New Deal administration, the Court radically expanded the scope of the commerce clause in Wickard v. Filburn, where a farmer growing grain on his own property for consumption by his own livestock, which were intended to be consumed by his family was charged with a crime under FDR’s Agricultural Adjustment Act of 1938, in which the federal government assumed the power to regulate how much wheat could be produced by farmers nationwide in order to limit wheat supplies and drive up wheat prices through artificial shortages during the Great Depression.
With this ruling, almost no activity was beyond the reach of Congress under the commerce clause, and it wasn’t until 1995 that the Court began restricting Congress’ power to interfere in strictly in-state local matters. In United States v. Lopez (1995), Chief Justice William H. Rehnquist, writing for the majority, struck down a federal law that made it a crime to possess a gun within 1000 feet of a school, reasoning that the mere possession of a firearm does not qualify as “commerce” and that the supposed justification that schoolchildren eventually grow up to be workers who may travel interstate was too tenuous and insubstantial a connection to “commerce among the several states” to be upheld, and that therefore the federal regulation of the simple possession of firearms within the boundaries of a state was beyond the authority of the commerce clause and the Congress to regulate.
This particular ruling is important when it comes to analyzing the Obama Administration’s interference in Colorado’s medical marijuana industry. U.S. Attorney John Walsh is quoted by the Associated Press as writing in a letter to 23 marijuana dispensaries located near schools, “When the voters of Colorado passed the limited medical marijuana amendment in 2000, they could not have anticipated that their vote would be used to justify large marijuana stores located within blocks of our schools.”
That, Mr. Walsh, is not only an arrogant presumption and dismissal of the will of the People of Colorado, but it’s also absolutely none of your business. They are not “your” schools, they are Colorado schools, and where Colorado chooses to permit strictly in-state commercial activities is not within your authority to regulate.
In fact, the issue of marijuana dispensaries near schools has been the subject of considerable debate by both the public and by every level of government responsible for permitting dispensaries. The people of Colorado, through their elected representatives have expressed themselves clearly in the laws of Colorado, which are not your concern.
It is not the business of the federal government to interfere in those sovereign state decisions about siting and permitting of dispensaries. This is strictly a matter of state and local concern and we, the People of Colorado, don’t need or want your advice or your arrogant interference in our purely in-state, absolutely non-interstate medical marijuana industry. So butt out.
Of course, being an arrogant federal bureaucrat, Walsh won’t butt out, so this issue is no longer about how Colorado approves dispensary permits, this is about a purely local state constitutional amendment duly voted on and approved by Coloradoans versus an overreaching, arrogant federal agency that has decided to flex its power and in doing so is treading squarely upon our rights as Coloradoans to determine our own laws and future regarding strictly in-state commercial activities.
This is about state’s rights and it’s time for a straight-up fight with the federal government about the rights of Coloradoans under the 10th Amendment. If Colorado’s heavily regulated completely in-state medical marijuana industry is not immune from the interstate commerce clause power of Congress and overreaching federal bureaucrats, absolutely no human activity is, which would make a mockery of the words “among the several states” even more so than it has been, and would erase all constitutional constraints on Congress, and would effectively repeal the 10th Amendment and destroy the very idea of the Republic and the rights of states to determine, within their own boundaries, how the people shall consent to be governed.
Because medical marijuana must be both grown and consumed exclusively within the state, and it cannot be lawfully imported or exported from the state, the federal government has no authority whatsoever to regulate it because it’s not interstate commerce, nor does it affect interstate commerce in marijuana because transporting marijuana interstate is a federal crime.
Now is the time and here is the place for Colorado and indeed all of the states to stand up to defend the 10th Amendment and directly challenge the authority of the federal government to interfere in sovereign state affairs.
There has not been a better, stronger case for reining-in an out-of-control federal government in decades, and it is Colorado Attorney General Suther’s duty and obligation to take this fight to the Supreme Court and win it.
Anything less is dereliction of his duty to preserve, protect and defend the Constitution of the State of Colorado and our rights as citizens.
Call A.G. Suthers and demand that he put everything he has into this fight, or resign his office if he cannot find it in him to uphold his duty to our Constitution.
© 2012 Altnews