Brewer, Horne right to tread carefully on medical pot - East Valley Tribune: Columnists

Brewer, Horne right to tread carefully on medical pot

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East Valley resident Tom Patterson ( is a retired physician and former state senator.

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Posted: Saturday, June 25, 2011 5:25 am | Updated: 4:26 pm, Sun Jun 26, 2011.

Governor Jan Brewer and Attorney General Tom Horne are taking heat for seeking clarification from the feds on the status of Arizona’s newest medical marijuana law. They don’t deserve it.

Arizona voters approved an initiative legalizing medical marijuana last November. The dilemma is that marijuana use and possession are illegal under federal law. (To the untrained eye, the federal law appears unconstitutional unless substances cross state borders, but that’s another issue.) Under the U.S. constitution, federal law pre-empts state law where there is a conflict, so the legal status of medical marijuana users is unclear at best.

Brewer and Horne first sought advice from U.S. Attorney Dennis Burke. His response was hardly reassuring. He helpfully explained that a conflict has always existed between federal law and state medical marijuana laws. He stated that the federal government reserves the right to prosecute those in violation of federal laws. But, as he later explained, his letter did not signal a specific intention to go after state employees, a special concern of Brewer and Horne. “This is not a priority for us and will not be,” he counseled.

But “not a priority” somehow didn’t satisfy Brewer and Horne. They know that administrations change and the knowledge that you’re “not a priority” of the current enforcers provides no legal security in the long term. In the face of Burke’s inadequate response, they filed suit in federal court, hoping that a judge would determine whether Arizona’s medical marijuana laws were in violation of federal law.

That’s when the flak started. Brewer and Horne, both opponents of the initiative, were roundly accused of undermining the will of the people. I personally believe that marijuana should be legal for adults, period, so I would be on their case too if that’s all they were doing.

The criticism began with Burke himself, who was indignant that his letter was used to precipitate the lawsuit, calling it “disingenuous.” “They’re saying ‘I can’t believe he’s going after state employees.’ It’s not in my letter,” he claimed.

Of course, they said no such thing. The fact that there was nothing in the letter assuring protection of state employees was precisely their concern.

National groups like the Marijuana Policy Project chimed in, calling the lawsuit a “waste of taxpayer money.” Ryan Hurley, an attorney for marijuana dispensers, claimed they were “willingly or unwillingly (sic) … thwarting the will of the voters.”

Christian Palmer in the Arizona Capitol Times unwittingly exposed the logical fallacy of the critics. He wrote that “Brewer and Horne are seeking political cover (in the form of a court ruling that acknowledges the obvious lesson that federal law trumps state laws) to simply not allow medical marijuana in Arizona.”

Huh? It’s “obvious” to him that federal law prevails but they are still to be condemned because their motives are so darned impure?

The underlying problem is that the federal government has made a hash (no pun intended) of marijuana law enforcement. The Obama administration is hardly the first to employ highly selective enforcement strategies. They mostly look the other way, except when they don’t. They want to have it both ways — harsh laws on the books to mollify the “killer weed” crowd, with lax enforcement so that users aren’t too resentful.

Admittedly the lawsuit is problematic. Federal courts rule on cases, they don’t give advice, so it’s unlikely that Brewer and Horne will obtain judicial relief immediately. Meanwhile, the suit has turned into a legal melee, with would-be dispensers demanding to be named as defendants along with the federal government. Trial lawyers are in heaven.

But there’s an important issue at stake here. It’s the Rule of Law, the protection each American enjoys against being prosecuted simply because those in power have it out for us. Laws which are inconsistently enforced put far too much power in the hands of government officials, who get to decide when and who to prosecute.

Meanwhile, Arizonans involved with medical marijuana are left in a legal limbo at the mercy of whoever holds office at the moment. Brewer and Horne are right to demand better.

• East Valley resident Tom Patterson ( is a retired physician and former state senator.

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