On March 9, Gov. Martin O'Malleysaid he is likely to veto a medical marijuana law if the Maryland General Assembly passes one. His spokeswoman said he is concerned about a Feb. 9, 2012 letter from Charles Oberly, Delaware's U.S. attorney, to Gov. Jack Markell, threatening to prosecute Delaware officials as common drug traffickers if they carry out their state's medical marijuana law.
Governor O'Malley should look carefully at this letter. After reading the law and analyzing the letter, I believe Mr. Oberly dishonestly manipulated Governor Markell by threatening prosecutions he is forbidden to bring in order to block a valid state law he doesn't like.
First, the federal drug law explicitly immunizes state officials from prosecution for conduct while enforcing any state drug law. Second, unlike the federal lawsuit against Arizona over immigration, no U.S. attorney, Mr. Oberly included, has ever challenged any state's medical marijuana law in court. So there is no judicial or statutory authority for these threats. Mr. Oberly's letter does not refer to any statute, any court ruling or any constitutional provision challenging the Delaware law. Very simply, Mr. Oberly gambled his empty threat would scare Mr. Markell, and it worked.
Mr. O'Malley may be under the misimpression that a state can't write an effective medical marijuana law. In fact, no provision of the federal drug law indicates an intent of Congress to exclude the states from passing laws on marijuana or other drugs except if "there is a positive conflict between ... [the Controlled Substances Act] and that State law so that the two cannot consistently stand together." This means the federal drug law acknowledges states have the power to write their own marijuana laws, and they can differ from federal law. If Mr. Oberly thinks he can persuade a federal court to invalidate the Delaware medical marijuana law for being in "positive conflict" with federal law, he should do so. But no U.S. attorney has ever tried such a case in any of the 16 medical marijuana states.
Mr. O'Malley should be aware that the problem is not that the general assemblies of Delaware and Maryland are in danger of exceeding their powers or compromising state employees. The problem is that an appointed federal official has misused the authority of his powerful office to dishonestly manipulate a state into not following its own laws. That violates the Constitution. Article IV, Section 4 provides that "the United States shall guarantee to every State in the Union a Republican Form of Government." Mr. Oberly made legally baseless threats in order to undermine Delaware's "republican form of government." He violated the Constitution in order to block Delaware from protecting medical patients whose doctors recommend marijuana.
The intimidation of Governor Markell, and now possibly Governor O'Malley, through a bluff about a prosecution that is actually barred by the federal drug law is outrageous misconduct that should be investigated by the Office of Professional Responsibility of the Department of Justice.
Delaware was the first state to ratify the U.S. Constitution in 1787. I hope that Delaware and Maryland resist this unprecedented abuse of federal power — an abuse the framers hoped the Constitution would prevent.
The Delaware and Maryland legislatures recognize that their doctors want to recommend marijuana to their citizens. In fact, a branch of the federal government recognizes doctors' prescriptions of marijuana and has been providing hundreds of marijuana cigarettes every month to patients since May 16, 1978. Doctors know that marijuana is a great adjunct to chemotherapy for cancer. Marijuana helps control the terrible symptoms of multiple sclerosis. And many veterans know it helps control the anxiety of combat-inducedpost-traumatic stress disorder.
The governors should heed the concerns of their citizens struggling with real diseases and real pain, not plainly bogus threats.
Eric E. Sterling, president of the nonprofit Criminal Justice Policy Foundation in Silver Spring, lectures to bar associations about marijuana laws. He was counsel to the U.S. House Judiciary Committee from 1979 to 1989, where he worked on medical marijuana legislation, among many issues.