States Rights Raised As An Issue In Federal Case

[peanutbutter]

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________

)

AMERICANS FOR SAFE ACCESS, et al., )

) No. 11-1265

Petitioners, )

)

v. )

)

Drug Enforcement Administration, )

)

Respondent. )

)

--------------------------- )

)

Carl Eric Olsen, )

)

Intervenor )

_________________________________________)

 

INTERVENOR’S MOTION FOR LEAVE

TO FILE SUPPLEMENTAL BRIEF

 

Pursuant to this Court’s Order of October 16, 2012, directing the Petitioners and the Respondent to file supplemental briefs on the question of the standing of Michael Krawitz to seek judicial review of the DEA’s final ruling, the Intervenor seeks permission to file a supplemental brief. A copy of the proposed Intervenor’s Supplemental Brief is attached to this motion.

DATED: October 23, 2012

Respectfully Submitted,

/s/ Carl Olsen

_______________________

Carl Olsen, Pro Se

130 E. Aurora Ave.

Des Moines, IA 50313-3654

515-343-9933

carl-olsen@mchsi.com

 

 

 

I hereby certify that this motion for leave to file supplemental brief has been served electronically on the following parties through the Court’s Electronic Case Filing (ECF) System:

 

 

Joseph David Elford

Americans for Safe Access

1322 Webster Street

Suite 402

Oakland, CA 94612

Lena D. Watkins

U.S. Department of Justice

Room 11100

1400 New York Avenue, NW

Washington, DC 20005

 

 

 

DATED: October 23, 2012

 

Respectfully Submitted,

/s/ Carl Olsen

_______________________

Carl Olsen

130 E. Aurora Ave.

Des Moines, IA 50313-3654

515-343-9933

carl-olsen@mchsi.com

 

 

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________

)

AMERICANS FOR SAFE ACCESS, et al., )

) No. 11-1265

Petitioners, )

)

v. )

)

Drug Enforcement Administration, )

)

Respondent. )

)

--------------------------- )

)

Carl Eric Olsen, )

)

Intervenor )

_________________________________________)

 

INTERVENOR’S SUPPLEMENTAL BRIEF ON STANDING

 

This is an educational moment. Petitioners’ sudden discovery that they have standing at this last hour is based on state laws. The Intervenor has consistently pointed this out throughout these proceedings.

The original affidavit filed by Mr. Krawitz on January 19, 2012, states, “I am currently being denied my prescription pain treatment by the VA based upon their illegal drug [pain contract] policy that routinely, administratively, denies pain treatment as punishment for using cannabis [marijuana] by veterans that do not live in a state with legal medical cannabis [marijuana], . . .” Affidavit of Michael Krawitz in support of Petitioners (Docket No. 1376190), at page 2. The state of Virginia, in which Mr. Krawitz resides, does not accept the medical use of marijuana in treatment in that state.

The new affidavit filed by Mr. Krawitz on October 22, states that Mr. Krawitz resides in Oregon “at least one or two months per year.” Supplemental Affidavit of Michael Krawitz in support of Petitioners (Docket No. 1401020), at page 4. The state of Oregon, in which Mr. Krawitz resides one or two months per year, does accept the medical use of marijuana in treatment in that state.

State laws matter. Context matters. The reason state laws matter is that Congress never set a national standard on the medical use of controlled substances. Gonzales v. Oregon, 546 U.S. 243, 275 (2006):

The Government, in the end, maintains that the prescription requirement delegates to a single executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it.

 

In order for an executive branch agency to decide marijuana shall not have accepted medical use in treatment in a state that has accepted it, Congress would have had to clearly say that marijuana shall have no accepted medical use in treatment in the United States. If Congress does not take a position one way or the other, then accepted medical use of marijuana is a residual police power of the state under our system of dual governments known as federalism.

Bond v. United States, ___ U.S. ___, ___, 131 S.Ct. 2355-2365, 2364, 180 L.Ed.2d 269, 279-280 (2011):

Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-a-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.

 

But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. "State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.' New York v. United States, 505 U.S. 144, 181, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992) (quoting Coleman v. Thompson, 501 U.S. 722, 759, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) (Blackmun, J., dissenting)).

 

Some of these liberties are of a political character. The federal structure allows local policies "more sensitive to the diverse needs of a heterogeneous society," permits "innovation and experimentation," enables greater citizen "involvement in democratic processes," and makes government "more responsive by putting the States in competition for a mobile citizenry." Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991). Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.

Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. See ibid. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.

 

The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. See New York, supra, at 181, 112 S. Ct. 2408, 120 L. Ed. 2d 120. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.

 

The recognition of an injured person's standing to object to a violation of a constitutional principle that allocates power within government is illustrated, in an analogous context, by cases in which individuals sustain discrete, justiciable injury from actions that transgress separation-of-powers limitations. Separation-of-powers principles are intended, in part, to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution's concern. The structural principles secured by the separation of powers protect the individual as well.

 

Mr. Krawitz has standing to complain of the direct injury to his protected state liberty by the unlawful actions of the DEA interfering with the states’ decision to accept the medical use of marijuana in treatment. Medical use of marijuana is accepted in treatment in 17 states, and Oregon is one of those states.

DATED: October 23, 2012

Respectfully Submitted,

/s/ Carl Olsen

 

_______________________

Carl Olsen, Pro Se

130 E. Aurora Ave.

Des Moines, IA 50313-3654

515-343-9933

carl-olsen@mchsi.com

 

 

 

I hereby certify that this motion for leave to present oral argument has been served electronically on the following parties through the Court’s Electronic Case Filing (ECF) System:

 

 

Joseph David Elford

Americans for Safe Access

1322 Webster Street

Suite 402

Oakland, CA 94612

Lena D. Watkins

U.S. Department of Justice

Room 11100

1400 New York Avenue, NW

Washington, DC 20005

 

 

 

DATED: October 23, 2012

 

Respectfully Submitted,

/s/ Carl Olsen

 

_______________________

Carl Olsen

130 E. Aurora Ave.

Des Moines, IA 50313-3654

515-343-9933

carl-olsen@mchsi.com

 

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[greenbuddha]

PB, Thanks for the update. Much appreciated.

[peanutbutter]

That was not a document filed by ASA.

 

Carl Olsen has been a part of the proceedings since 2002.

 

ASA fell into the trap of medical proofs. The court is not your doctor. Courts judge law, not medicine.

 

BY LAW, marijuana is accepted within the United States for medical treatment.

 

WE THE PEOPLE passed a law that accepts cannabis for medical use in treatment. Michigan is located within the United States.

Edited October 24, 2012 by peanutbutter

[DLD420]

Before the (all knowing ones) try to cut you to pieces PB, I believe your above statement is correct. Please continue to post your thoughts ang feelings and to hell with this sites know it alls. JMHO

[peanutbutter]

Everything that the DEA is doing is simply to avoid a real examination.

 

That WILL end the war against cannabis.

 

So instead of doing honest evaluation, the DEA is doing what it can to avoid the subject.

 

Problem is, the question has already been legally answered. It has accepted medical use in treatment within the United States. Accepted as a matter of law.

[Celliach]

Everything that the DEA is doing is simply to avoid a real examination.

 

That WILL end the war against cannabis.

 

So instead of doing honest evaluation, the DEA is doing what it can to avoid the subject.

 

Problem is, the question has already been legally answered. It has accepted medical use in treatment within the United States. Accepted as a matter of law.

 

You keep talking like state law has jurisdiction or precedent over federal law, and that's simply not true. Citing the state laws has no relevance whatsoever in a federal case. The United States actually fought a war over this once, The Civil War, and the people on the side of state's rights over federal law lost.

[peanutbutter]

You keep talking like state law has jurisdiction or precedent over federal law, and that's simply not true. Citing the state laws has no relevance whatsoever in a federal case. The United States actually fought a war over this once, The Civil War, and the people on the side of state's rights over federal law lost.

 

Who determines if it has accepted medical use in the US?

 

Congress, not the DEA, made a statement in the CSA. That was how it got into schedule one.

 

Who else is qualified to determine what is or is not accepted?

 

The DEA claims the ability to make that call. The CSA didn't give them that authority. It is a role they have assumed without legal authority.

Edited October 24, 2012 by peanutbutter

[+Malamute]

The FDA has authority to determine scheduling(administrative implementation) and the FDA by legal authority has allowed the DEA to make the recommendations from which the FDA usually acts upon.

 

More specifically, when they first passed the CSA, Congress created the list. The list is regularly adjusted and Congress by itself can legislate placement on schedule if they so choose and usually only when a new drug comes into existence. But generally it is Health and Human Services(HHS) who is in control and has appointed the FDA and DEA to administrate recommendations.

Edited October 24, 2012 by Malamute

[t-pain]

its a clusterfuck of people pointing the blame at each other

 

is it the DEA? FDA? HHS? Congress? The President?

they all point fingers in a big circle.

i hope the court doesnt toss it on standing. these courts are really getting difficult to sue the us government because they cant give a clear path on what is acceptible. and then it takes another 10 years to get where we are today!

[peanutbutter]

The FDA has authority to determine scheduling(administrative implementation) and the FDA by legal authority has allowed the DEA to make the recommendations from which the FDA usually acts upon.

 

There are limits to where the FDA can have something scheduled. Each of the schedules has a list of criteria that outlines the substances placed there.

As a result of a hearing, the FDA would not be able to schedule cannabis as schedule one.

 

There are other pathways to change the schedule for cannabis. Congress, courts ..

 

The DEA is in error when they claim they judge what is accepted within the United States. A pathway for change is when states accept cannabis by law. This is an untried pathway, as of yet.

 

See Gonzales v Oregon in 2006. The role of the DEA to make such determinations was discussed at length.

 

More specifically, when they first passed the CSA, Congress created the list. The list is regularly adjusted and Congress by itself can legislate placement on schedule if they so choose and usually only when a new drug comes into existence. But generally it is Health and Human Services(HHS) who is in control and has appointed the FDA and DEA to administrate recommendations.

 

All of that would be to define it as accepted within the United States. Accepted by HHS, FDA or DEA.

 

The CSA doesn't give ANY of them the ability to accept or deny what is accepted by law. Congress never gave any of them the ability to bypass law.

 

The CSA also gives the states the ability to regulate medicine. Michigan did .. by law.

[greenbuddha]

When enough states vote cannabis legal, it will become so costly to the federal government to enforce the anti-cannabis laws that the laws will HAVE to be changed at the federal level or have the federal laws become a farce and a joke.

 

And three states have 'legalization' on their ballots for the upcoming election; Colorado, Oregon and Washington. The odds of at least one of these states getting legalization seems fairly good.

Let's hope they do.

[bobandtorey]

I hope one of them does pass but I don't think they will

I remember the one from Cal didn't pass I think the people that sell the weed didn't want it to pass

I wonder why?

[Chauncy Gardner]

Colorado is currently polling 53% in favor vs. 43% against. Looks pretty good.

[Chauncy Gardner]

An old adage to be directed at the government:

 

Oh what a tangled web we weave when first we practice to deceive.

 

They have really spun a whopper with marijuana.

[Herb Cannabis]

The government has no way to save face in this mega blunder created oh so many years ago. It is time for them to finally admit their mistake and PAY FOR IT IN FULL. They can begin restitution by releasing the marijuana prisoners and continue on by giving all the money needed to study this plant to its fullest extent.