Saturday, May 5, 2012

Richard Schwartzman: HR 1983: Good idea, wrong reason

  The world is changing its view on drug laws and drug use — at least, most people and many countries are doing just that. Here in the States, recent polls indicate 50 percent of people favor full legalization of marijuana, while 80 percent advocate medical marijuana use. The federal government is lagging behind, however.

  Portugal decriminalized the use of all drugs 11 years ago, and the result has been no increase in usage. Indeed, removing the forbidden-fruit aspect of drug use resulted in less use by younger people. That country also saw a drop in HIV cases related to drug use.

  Last year, the Global Commission on Drug Policy came out with a report against the continued criminalization of drugs, and just recently decriminalization and legalization were key themes during a Latin American summit. The presidents of Mexico and Colombia, Felipe Calderón and Juan Manuel Santos, want an end to the drug war. In Mexico alone an estimated 47,000 to 50,000 people have been killed in recent years because of prohibition-related violence.

  Meanwhile, President Barack Obama has said legalization is not the answer, but he’s willing to have a debate on the subject.

  A lot of good that will do. Talk is often cheap, and the president has been known to conveniently change his mind about things. A case in point was his declaration that he would not have federal prosecutors and drug agents interfere with medical marijuana in states that allow that use. Yet, as reported last year, that hands-off policy didn’t stick around for long.

  That brings us to HR 1983, with its good and bad sides.

  On the good side is what the bill says, even if it doesn’t go far enough.

  Should it become law, HR 1983 would reclassify marijuana from a Schedule I substance, meaning that it has no medical value, to Schedule III or better, meaning there is a recognized medical use even though there is still a risk of abuse.

       Not later than 6 months after the date of enactment of this Act, the Secretary of Health and Human Services, in cooperation with the National Academy of Sciences’ Institute of Medicine, shall submit to the Administrator of the Drug Enforcement Administration a recommendation on the listing of marijuana within the Controlled Substances Act (CSA), and shall recommend a listing other than “Schedule I” or “Schedule II.”

  It goes further to say that the Drug Enforcement Administration shall act on the recommendation within 12 months of passage. The bill also puts limits on the Federal Food, Drug, and Cosmetic Act:

       No provision of the Federal Food, Drug, and Cosmetic Act shall prohibit or otherwise restrict [the use or sale of medical marijuana] in a State in which the medical use of marijuana is legal under State law.

  The bill would pave the way for getting the federal government to stop interfering in states that have legalized medical marijuana. It would not, however, legalize such use across the board.

  Sixteen states and the District of Columbia have laws making medical cannabis legal. The remaining states still have the option to make such use legal or not.

  Admittedly, it’s not the bill we libertarians ultimately want to see, but it is a step in the right direction. It’s something libertarians, liberals, and those who are truly compassionate conservatives can support.

  HR 1983 was initiated by Massachusetts Democrat Barney Frank and has picked up 21 cosponsors since it was introduced last year. It’s now in the House Energy and Commerce Subcommittee on Health.

  On the downside, HR 1983 uses the Commerce Clause of Article I, Section 8, of the Constitution for its constitutional justification. This is the same clause that Congress has used to justify pretty much any interventionist law it wants to enact. And the Supreme Court has used the clause to let Congress get away with that.

  The Commerce Clause authorizes Congress to regulate commerce among the states. Yet it has been used to restrict the amount of grain a farmer can grow for his own use without putting it on the market (see Wickard v. Filburn), and it’s been used to prevent medical-marijuana patients from growing their own medicine in California, where it’s legal (see Gonzales v. Raich).

  A proper justification for HR 1983 would be to cite the Tenth Amendment, since there’s nothing in the Constitution authorizing the federal government to prohibit drug use or drug commerce. Then again, if congressmen and senators actually honored the Tenth, there would be no federal prohibition; states could set their own policies; and individuals, both for and against legalization, would have a stronger say in the matter. Wouldn’t that be a novel idea?

  About the author: Richard Schwartzman is managing editor at Chadds Ford Live in Chadds Ford, Pennsylvania.

  This article was published by the Future of Freedom Foundation.

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