Marijuana Research In 2017: A Battle Of States’ Rights


There have been several major developments for cannabis research in 2016 amidst unprecedented debate about marijuana’s medical potential among federal officials and congressional lawmakers. The most significant growth in the cannabis industry happened during the eight years Barack Obama has been president. Before then, there were roughly a dozen states with medical cannabis laws and now that has more than doubled with several of those states formally allowing commercial adult use.

While Obama did not officially change federal policy around cannabis, his administration opted for a hands-off approach, deferring policy to states as a states’ rights issue through a series of Department of Justice memos. These memos essentially signaled to the states that the Department of Justice would likely only interfere if the cannabis activity in the states moved across borders, or into the hands of kids, for example. Outgoing President Obama also decided not to reschedule cannabis while in office, despite statements by former U.S. Attorney General Eric Holder. The interview was recently released as part of Frontline’s “Chasing Heroin” documentary.

“I certainly think it ought to be rescheduled. You know, we treat marijuana in the same way that we treat heroin now, and that clearly is not appropriate. So at a minimum, I think Congress needs to do that. Then I think we need to look at what happens in Colorado and what happens in Washington,” Holder said.

The most disappointing development was the DEA’s decision not to reschedule cannabis, leaving cannabis in Schedule 1, which means according to the federal government it is still considered to have no medical value and a high abuse potential. On the other, the government actually holds patents for the medical use of the cannabis plant. Since one part of the government applied for the patent of medical cannabis, and another part of the government approved that patent, it only logical to conclude that the federal government knows that marijuana does indeed have valid medical properties. The U.S. government’s own National Institutes of Health researchers even concluded: “Based on evidence currently available the Schedule I classification is not tenable; it is not accurate that cannabis has no medical value, or that Information on safety is lacking.” Maybe there are some big pharma lobbyists and bigwig campaign finance contributors that would get a little upset.

A positive development was the decision to, for the first time, to license more than one entity to grow cannabis for research, opening a four decades long ban. The University of Mississippi has had an exclusive license with the US government to be the only one to grow cannabis for federally sanctioned research.

While no other university has been federally approved to grow cannabis for research yet, one researcher in the running is Lyle Craker, who studies medicinal plants at the University of Massachusetts, Amherst, and has also tried in the past to get approval to grow cannabis to research. So far almost a dozen agricultural schools, including those with industrial hemp programs, are reluctant in their eagerness to grow cannabis for the federal government as found out by the Boston Media Group. Not interested, said Cornell University, the University of Kentucky, and Virginia Tech. Ditto, said Michigan State University, the University of Vermont, and Western Kentucky University. No plans, said University of California- Davis, and University of Nebraska at Lincoln. Same with Colorado State University, Oregon State University, and Purdue University.

To register for research with the DEA, applicants will need to show that they will have security measures in place to protect the cannabis and be willing to comply with a host of other requirements. And depending on the scale of the operation, prospective growers will likely have to make significant investments to get it up and running. The agency has indicated it wants just enough cannabis to be produced so research demands are met, but not more than that. Nor did the agency set any kind of deadline to select growers indicating a multi-year process.

State governments recognize the injustice of this cannabis prohibition. Soon after the DEA gave its decision, Washington state, in an announcement demonstrated perhaps the boldest act of states’ rights yet for cannabis.  As The News Tribune reported: “Washington state is moving ahead with its plans to allow scientific research of marijuana, sidestepping federal rules that critics say have hampered study of the drug for decades. The state has a new marijuana research license that will allow laboratories to grow marijuana for scientific study. State officials expect to start accepting applications for the new license by January.”

As Sam Méndez, executive director of the Cannabis Law & Policy Project at the University of Washington School of Law, points out: “It can take up to two years just to get the federal licenses in the first place, because the process is so long and onerous.” And, when a researcher finally does get a federal license, the only place they can get research-grade cannabis is from the University of Mississippi. Further, when discoveries are made about the medicinal properties of cannabis, they cannot be applied to state-level systems. Washington’s state licensing program will bypass these absurd hurdles, and will open the door for private research facilities to conduct research as well as state universities. Research-grade cannabis can be sourced from within the state from a variety of qualified producers. Oregon is also working to develop similar licenses to allow for cannabis research.

In Louisiana,  Louisiana State University and Southern University both agreed to provide medical cannabis for the state’s medical program. LSU’s agriculture vice president even suggested to the Washington Times, without getting into specifics, that he has had assurance that federal funds wouldn’t be at risk if the university went ahead with their plans. If that program goes forward, it would be a significant development and perhaps open the door for other universities that want to take a role in cannabis cultivation and research.

Nowhere in the US Constitution is it written that the federal government can regulate cannabis. The Constitution defines the powers of the federal government, and according to the Tenth Amendment, if it’s not in the Constitution, it’s a state power. Additionally, states have traditionally held “police power“, or the right to regulate crime within their respective jurisdiction. Yet, there are federal laws that regulate cannabis, and under the Supremacy Clause, federal law supersedes state law. If this power isn’t in the constitution, how does the federal government justify regulation? The Commerce Clause of the Constitution is used to justify federal regulation of cannabis.

“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”

Some critics argue that, in theory, the commerce clause can give the government authority to force people to eat vegetables and brush their teeth in an effort to reduce medical costs, which are linked to nationwide insurance companies.

States’ rights have advanced state medical cannabis programs since the 1970’s and paved the way for states with legal adult use of cannabis, states should continue on that same policy path for the issue of cannabis research. States like Washington and Oregon should get full commendations on leading the way for states’ rights in the act of “legislating” for freedom by breaking tyrannical barriers for research on a plant with so much promise. Prohibition of cannabis is not a fundamental right that should be imposed on the states by the federal government, it’s a choice that states should be allowed to make based on their culture and their values-allowing states to once again be laboratories of democracy.

“…a state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” – Justice Louis Brandeis

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