Richard McConathy, Dallas Marijuana Lawyer: Unconstitutional Federal Laws Keeping States from Setting Their Own Destiny on Drug Policy

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Colorado and Washington voters recently passed new state laws legalizing marijuana for recreational use, marking a new step in states decriminalizing and legalizing marijuana, but the federal government has acted as a barrier, declaring federal law prohibiting drugs to be supreme to state law. Dallas marijuana defense lawyer Richard McConathy says the federal government is acting improperly and should let states develop their own drug policy.

"If the United States wants peace in the Western Hemisphere, they could destroy the drug cartels' profits immediately by ending prohibition," said Dallas drug defense lawyer Richard McConathy.

Colorado and Washington voters passed broad marijuana legalization state laws November 6, legalizing cannabis for recreational use. While several states have passed medical marijuana laws, these two states are the first to have such broad laws. Undoubtedly, the victory will invigorate efforts in other states, including Texas, to loosen prohibition laws for marijuana. However, the federal government continues to stand in the way of any state truly allowing its citizens the freedom of enjoying cannabis, a natural, harmless project, said Richard McConathy, a Dallas marijuana defense lawyer.

"The federal government never learned its lesson from Prohibition — that the states can handle determining what substances their citizens can use," McConathy said. "They continue to stand in the way of states by usurping state authority with unconstitutional federal laws."

Under the ballot measures, which were put on the ballot after supporters gathered enough signatures on petitions, people 21 and older may possess one ounce and six plants in Colorado, and adults may buy one ounce of marijuana from licensed sellers. Unlike other states, buyers do not need a prescription, merely a photo ID to prove age.

While Texas retains laws criminalizing marijuana for now, its residents have a strong inclination toward freedom, and sharing a border with Mexico has given Texans a close look at the brutal violence that the War on Drugs has spawned, McConathy said. Texans cannot petition to have an item put on the ballot — the Legislature either must pass a bill that the governor signs, or two thirds of each legislative house must vote to put it on the ballot as a state constitutional amendment. Lobbying efforts are underway to change the law by the Texas chapter of NORML, the Texas Coalition for Compassionate Care and other supporters.

However, one barrier exists for Texas and every other state: the federal government. The federal Controlled Substances Act lists marijuana as a Schedule I drug, a list that is supposed to be reserved for narcotics with the highest potential for abuse and no accepted medical use. This is despite studies showing few, if any, harmful physical effects from cannabis use, and multiple studies showing marijuana as an effective combatant of symptoms of multiple sclerosis, epilepsy, cancer, and many other serious conditions. Federal law bans marijuana absolutely.

States have laws on controlled substances, as well. However, they are not always in sync — especially now that 18 states and the District of Columbia have recognized the medicinal value of marijuana and allowed it for medical use, and now that voters in Colorado and Washington have seen fit to abandon the failed strategy of prohibition, McConathy said.

Whenever state law has not matched the prohibition of federal law, though, federal governments have ignored state law and enforced prohibition policy. The federal government has been enabled by U.S. Supreme Court case Gonzales v. Raich (545 U.S. 1 (2005)). In that case, Angel Raich, an ailing California woman using cannabis under the California medical marijuana law, argued that the federal government could not enforce the Controlled Substance Act to take away her treatment, since it conflicted with state law. The George W. Bush Administration argued that federal law was supreme.

The U.S. Supreme Court sided with the Bush Administration that the Commerce Clause's granting of power to regulate interstate commerce gave them the power to determine drug policy within the states, rejecting arguments that the 10th Amendment reserved powers to the states not listed in the Constitution — such as the power to determine what substances may and may not be used. Under the ruling, the federal government had far more power than just regulating trafficking between states — it could actually ban sale and possession of controlled substances, and enforce those federal laws over state law.

The Obama Administration has continued the Bush policies. In the past year, federal authorities under the Obama administration have shut down 600 dispensaries that were properly operating under California law. The Department of Justice and Attorney General Eric Holder have yet to comment specifically on the Colorado and Washington ballot measures, but the U.S. Attorney in Colorado ominously released a statement the evening of the initiative's passing that " "The Department of Justice's enforcement of the Controlled Substances Act remains unchanged."

Justice Louis Brandeis famously described states as laboratories for democracy, where U.S. citizens can try out new ideas and, if they worked, other states might adopt them. Several states have been experimenting with the idea that prohibition doesn't work, and that by decriminalizing and legalizing marijuana, a substance that has not been conclusively or credibly shown to have harmful effects, states may be able to keep citizens out of jails and engaged in a productive society.

"The federal government, instead of allowing this to happen, has forced prohibition down the throats of states that don't want it," said McConathy. "The Raich case was wrongly decided. The federal government has no business usurping powers properly granted to the states, like the power to regulate controlled substances."

In fact, in acting upon a power it should not have, the federal government has neglected a responsibility it actually does have authority over — foreign policy, McConathy said. U.S. residents have a never-ending appetite for the substances the government tries to control, like marijuana but, due to prohibition, has difficulty cultivating those products within U.S. borders. This leads to drug cartels, which no foreign government has shown any ability to control, importing the drugs illegally into the United States. The cartels are violent and aggressive, and thousands have died in their wake.

"If the United States wants peace in the Western Hemisphere, they could destroy the drug cartels' profits immediately by ending prohibition," McConathy said. "Instead, the United States allows the cartels to run the drug trade by keeping honest people from engaging in it. This has caused immeasurable, gruesome violence that is sure to spill over the Mexican border into Texas."

The federal government should immediately stop enforcing this unconstitutional policy, and leave drug policy to the states, McConathy said.

"Texans can best decide whether Texas should continue the failed policy of prohibition," he said.

Richard C. McConathy, of the Law Offices of Richard C. McConathy, is a Dallas criminal defense lawyer who represents individuals accused of drug charges, including federal drug charges, throughout northeast Texas, including Dallas County and the surrounding areas of Fort Worth, Garland, Irving, Arlington, Plano, McKinney, Grand Prairie, Frisco, Denton, Grapevine and Lewisville.

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