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Arizona’s Attorney General Targets Medical Marijuana Dispensaries Protected By State Law

By Ian Millhiser on August 10, 2012 at 12:40 pm

"Arizona’s Attorney General Targets Medical Marijuana Dispensaries Protected By State Law"

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In 2010, Arizona’s voters enacted the Arizona Medical Marijuana Act, which permits patients to use and clinics to provide medical cannabis without having to fear state prosecution, provided they obtain a permit from the state. The state began the process of distributing permits to clinics via lottery this week.

Yet, despite the fact that Arizona law no longer authorizes lawful marijuana dispensaries to be targeted by state officials, Attorney General Tom Horne (R-AZ) doesn’t seem to have received the memo:

Gov. Jan Brewer has signed a waiver which will allow Attorney General Tom Horne to try to close down the marijuana dispensaries that her state health department is in the process of licensing.

The move comes in the wake of Horne’s formal legal opinion that the state cannot legally permit anyone to sell marijuana, even only to those who have a doctor’s recommendation to use the drug. Horne said as long as the drug remains illegal under federal law, the state is powerless to authorize anything to the contrary.

But the governor said Thursday she does not intend to block Health Director Will Humble from continuing the process of issuing state permits. And Humble, who conducted a lottery Tuesday to see who gets to serve each of the 126 health districts in the state, said the first of those shops could be open by the end of the month.

So one state agency will continue to issue permits to dispensaries telling them they are legally authorized to distribute marijuana to patients, while another state agency has vowed to shut these dispensaries down. If nothing else, this arrangement is tremendously cruel to the people who work in these dispensaries. When a state agency issues someone a permit saying their actions will not be subject to state prosecution, the permit holder should be able to rely on that promise.

Moreover, Horne’s claim that he is required to go after state dispensaries because marijuana is illegal under federal law is questionable at best. While it is true that state laws are “preempted” by federal laws that conflict with them, a fact that Horne relies upon in his anti-dispensary memo, nothing in Arizona’s medical marijuana law presents a genuine conflict with federal law. Rather, the Arizona law ensures that dispensaries who have valid state permits will not be targeted by state officials for providing medical marijuana. If the federal government wants to bring prosecutions, that’s up to them.

Even if federal law did force Arizona to bring prosecutions against people the state does not want to prosecute — and it does not — such a law would be unconstitutional. Horne may not be aware of this fact, but the Supreme Court decided an obscure case called NFIB v. Sebelius last June which reaffirmed that “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” The feds do have the constitutional authority to target marijuana dispensaries, but they must use their own officials and their own resources to do so.

Of course, Horne has not hesitated to make outlandish states rights arguments in defense of Arizona’s harsh anti-immigration law or as part of an assault on the Affordable Care Act. But it’s clear now that he only believes in states rights when doing so is convenient for him. The minute Arizona’s voters passed a medical marijuana law, he suddenly believes that Arizona is a wholly-owned subsidiary of the federal government.

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