MARIJUANA DEBATE HEATS UP:  After an extensive 5-day fact-finding hearing,  a federal judge in California yesterday ruled that it is not “irrational”–and thus does not offend the Constitution– for marijuana to be classified as a Schedule I drug (no legal uses) under the federal Controlled Substances Act (CSA).  It is a blow to pro-marijuana advocates, who’ve had remarkable success in getting pot approved for medicinal use, and–in four states–even recreational use.  Many legal experts anticipated that the judge, an Obama appointee, would take a “bold stand” and rule that marijuana cannot be completely banned under Schedule I. She suggested (showing remarkable restraint for an Obama appointee) that, as an unelected federal judge, it was not her place to effect such a substantial national policy change.

President Obama (technically, the Attorney General) could, consistent with the CSA, reschedule marijuana by executive order.  But for some reason, on this issue, the President has thus far refused to get out his infamous pen and phone, stating recently that he thinks Congress should amend the CSA to reschedule marijuana instead.

And in perhaps the ultimate irony, the Supreme Court ruled in its 2005 decision, Gonzales v. Raich, that individuals who used medical marijuana pursuant to state compassionate use laws were not entitled to a constitutional exemption from the CSA, as the CSA is the supreme law of the land.

Based on Gonzales, in late December, Oklahoma and Nebraska filed a lawsuit in the Supreme Court against Colorado, asserting that Colorado’s legalization of recreational pot has forced such neighboring States to bear the brunt of increased criminal activity, such as transportation of pot into their jurisdictions, where pot remains illegal under State law.  The interesting legal questions posed by the Oklahoma/Nebraska suit is whether state pot legalization conflicts with the CSA and is thus preempted, and if relatedly, whether the executive branch has a constitutional obligation to enforce the CSA’s prohibition in such states.  Some argue yes; some argue no.