Bill to protect medicinal pot users falls short in House

July 23, 2003

Edward Epstein, eepstein@sfchronicle.com, San Francisco Chronicle

Washington -- A surprisingly strong bid to shield medicinal pot smokers in California and nine other states from federal prosecution was defeated in the House on Wednesday after a spirited debate that centered on states' rights and even reached back to the pre-Civil War "nullification" debate. Proponents of the proposal by Rep. Maurice Hinchey, D-N.Y., and Rep. Dana Rohrabacher, R-Huntington Beach, got 152 votes, compared to the 94 votes for medicinal marijuana in a 1998 House vote. But pot opponents still won handily, with 273 votes, down from 311 in 1998. Hinchey-Rorhabacher supporters cited such recent federal actions as the successful prosecution of San Francisco medicinal pot grower Ed Rosenthal as the actions of an over-reaching Department of Justice. "It is a travesty for the federal government to send agents into my state and throw people in a cage for doing something that people in my state say is legal," Rohrabacher, a self-described libertarian Republican, told the House as it debated the measure late Tuesday night. He choked up as he told colleagues that he wished legal pot had been available when his mother was dying from cancer. California voters easily passed Proposition 215 in 1996 by 56 percent to 44 percent to allow patients to get marijuana with a doctor's recommendation to treat the pain of such ailments as cancer, AIDS or glaucoma. Ever since, federal authorities have made it clear that they don't view the law as valid. Through such actions as Rosenthal's prosecution or the raid last year on a Santa Cruz pot farm, the Drug Enforcement Administration has thrown a damper on Prop. 215. Similar federal efforts have occurred in the other nine medicinal pot states: Alaska, Arizona, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon and Washington. The Hinchey-Rohrabacher measure would have barred the Justice Department from challenging the state medicinal pot laws. Opponents of the amendment to the Justice Department authorization bill say states don't have the right to unilaterally override a federal law. "You can't have states passing laws to nullify some of the things we do here," said Rep. Mark Souder, R-Ind. "If we want to change drug laws, you should come and change those laws." Nullification is a constitutional theory, first championed in the 1830s by South Carolina's John C. Calhoun, that says a state can declare null and void any law passed by Congress that the state deems unacceptable. Southerners put the idea forward in the run-up to the Civil War. "The implication is that the federal government does not have the right to legislate drug laws," said Rep. John Shadegg, R-Ariz. He reminded pot advocates that states' rights advocates had used that argument to oppose civil rights laws. But Rep. Sheila Jackson-Lee, D-Texas, said that civil rights laws were about ending segregation laws that disadvantaged a large group of Americans. "Medical marijuana is an issue of states' rights that will not harm others," she said. Rep. Lynn Woolsey, D-Petaluma, said her constituents wanted to be left alone. "I represent Marin and Sonoma counties, just over the Golden Gate Bridge, and my colleagues will not be surprised, it is a very progressive area in our country, but they want their doctors to be permitted to prescribe marijuana for their patients suffering from debilitating diseases," she said. "And they believe that the federal government should get out of the way." Bruce Mirken of the Marijuana Policy Project said the growing support for medicinal pot "can be taken as a sign that this is an issue of compassion, not a sinister drug-legalization effort." "The vote is clearly moving in our favor," he added. But Rep. Frank Wolf, R-Va., has a different view. "This is a cultural issue, " he said. "It's about taking the culture in the wrong direction. Medical marijuana laws send the wrong message to our youth." Among California's 53 members, only two others among the 20 Republicans -- Mary Bono of Palm Springs and Bill Thomas of Bakersfield -- sided with Rohrabacher. Two of the 33 Democrats, Dennis Cardoza of Modesto and Joe Baca of San Bernardino, voted against the measure. Rep. George Miller, D-Martinez, did not vote.

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