Employment

A federal judge has ordered the state of Florida to pay more than $190,000 in attorneys' fees in a case challenging an executive order ordering suspicionless drug testing of state employees issued last year by Gov. Rick Scott (R). Those taxpayer funds have now been lost to Scott's chimeric crusade to impose drug testing on various fronts.

Last Friday, US District Court Judge Ursula Ungaro ordered the state to pay attorneys' fees to the American Federation of State, County, and Municipal Employees (AFSCME) Local 79, which filed suit to block the executive order in May 2011. The union is the plaintiff in the suit challenging Scott's ability to randomly test workers in state agencies.

A report by the Orlando Sentinel found that the state has now incurred over a million dollars in legal bills for controversial legislation pushed by the governor.

Judge Ungaro had ruled that Scott's executive order was unconstitutional back in April, saying the governor did not show a "compelling need" to impose drug testing. Scott has appealed to the 11th US Circuit Court of Appeals.

Scott's drug testing plan has never been implemented except among some employees of the Department of Corrections. He put it on hold because of the legal challenge.

Another of Scott's pet projects, the mandatory suspicionless drug testing of welfare applicants and recipients has also been so far stymied in the federal courts. In that case, a federal judge issued a temporary injunction blocking implementation amid strong hints she would eventually rule that the practice was unconstitutional.

Meanwhile, despite the legal roadblocks -- and financial costs to taxpayers of fighting them -- Scott and the legislature last year passed another bill, House Bill 1205, which would allow, but not require, state agencies to conduct random suspicionless drug testing of state workers. That law, too, is on hold as it faces challenges in the federal courts.

Four US representatives introduced an amendment to the Justice Department appropriations bill, House Resolution 5326, which would bar the agency from spending funds to attack medical marijuana operations in states where it is legal. The bill was being considered Wednesday, before failing on a voice vote Wednesday evening.

A roll call vote was taken later, with the amendment failing 163-262 -- 50 Democrats opposed it and 28 Republicans supported it. While the total number of "ayes" was almost identical to the last time the amendment was offered several years ago, that reflects the larger number of Republicans in the House. Both Democrats and Republicans voted for the amendment in greater percentages than in the past. [Ed: We will publish analysis of the voting breakdown this week.]

The House heard Reps. Barney Frank (D-MA), Maurice Hinchey (D-NY), Dana Rohrabacher (R-CA), Jerold Nadler (D-NY), and Steve Cohen (D-TN) speak in favor of the amendment, while the most notable opposition came from committee Chairman Frank Wolf (R-VA).

Hinchey was a cosponsor of the amendment, as was Rohrabacher, of Huntington Beach, and his California colleagues Reps. amie Farr (D-Carmel) and Tom McClintock (R-Auburn).

As a presidential candidate, then-Senator Obama said his administration would not use its resources to undermine state medical marijuana laws, especially if people were following their state’s law. At first, the administration lived up to his word. Shortly after he was elected president, the Department of Justice issued a memorandum to US Attorneys urging them not to waste taxpayer dollars and law enforcement resources arresting and prosecuting people following their state’s medical marijuana law.

But according to the medical marijuana defense group Americans for Safe Access, the DEA has undertaken more than 200 raids against medical marijuana dispensaries and associated businesses since it took office in 2009, with most of them coming in the past year. Beginning in March 2011 with raids on dispensaries across Montana, the Justice Department has shifted its stance on medical marijuana, becoming much more aggressive in enforcing federal law.

It's not just the DEA. Federal prosecutors in dispensary states, such as California, Colorado, and Montana, have also been aggressively targeting medical marijuana operations. They typically try to intimidate dispensary operators and/or their landlords in voluntarily closing their doors by issuing threat letters in which they warn that operators and/or landlords could face civil asset forfeiture or even criminal prosecution if they do not comply.

The threat letters are based on arbitrary standards having nothing to do with state medical marijuana laws. Instead, federal prosecutors typically allege that targeted dispensaries are within 1,000 feet of a school or playground. There is no federal law disallowing dispensaries in those areas, but there is a federal sentencing enhancement for drug law violations within them, and federal prosecutors are using that statute as a measuring rod for deciding which dispensaries to pick on.

The federal crackdown has, to some extent, worked. The Montana medical marijuana distribution scene was all but wiped out by federal raids and prosecutions, dozens of dispensaries have been forced out of business in Colorado, and more than 200 have closed in California.

But medical marijuana supporters and advocates have been mobilizing their forces, too. The crackdown has been criticized by House Minority Leader Nancy Pelosi (D-CA) and drug reform friend Rep. Barney Frank (D-MA), as well as elected officials in all three states and local Democratic Party organizations in the San Francisco Bay area.

And this week, the fight came to the House.

"It is time for the federal government to stop targeting the legal vendors that are providing safe access to this treatment, and instead focus limited resources on those who sell illicit drugs," Farr said in a statement. "The amendment I will offer with my colleagues will work to assure funds under the Department of Justice do not target the safe access to treatment patients need."

A plethora of medical marijuana and drug reform groups and even labor unions were mobilizing their members to contact Congress this week in a bid to show popular support for reining in the feds. Among them was the Drug Policy Alliance.

"Both Democrats and Republicans are telling the Obama administration: enough is enough, stop wasting taxpayer money to undermine state medical marijuana laws, said Bill Piper, the group's director of national affairs. "President Obama needs to realize his assault on patient access is not just immoral -- but a serious political miscalculation. For more than a decade, polling has consistently shown that 70% to 80% of Americans support medical marijuana."

For the United Food and Commercial Workers (UFCW), which represents dispensary workers in California and Colorado, smothering the federal crackdown is not just about compassion, it's about jobs and the economy.

"The UFCW supports the Hinchey-Rohrabacher amendment," the group said in a statement Wednesday. "Medical marijuana laws have been enacted to allow patients safe and legal access to appropriately produced and compliantly dispensed medical marijuana in the safest possible environment and UFCW members in the medical cannabis industry work in accordance with state laws to provide safe and effective medical treatment for persons suffering from cancer and other serious medical conditions.

"At a time when millions of hardworking Americans are out of work and still struggling to make ends meet, the use of taxpayer money for the misguided targeting and prosecution of an industry that provides Americans with good middle class jobs with benefits is counterproductive. The US Justice Department should not use the fewer resources it has to focus on targeting patients and dispensaries abiding by state law. That is a problem that the Hinchey-Rohrabacher Amendment will solve and the UFCW wholeheartedly supports it," the union said.

The political calculus behind the Obama administration's crackdown on medical marijuana is unclear. What is certain is that the opposition to it is broad and cuts across party lines.

"History is calling on President Obama to protect terminally ill patients from suffering, and he is dangerously close to falling on the wrong side," said Piper. "He will continue to pay a political price as long as his administration continues to waste taxpayer money undermining state law."

The Obama administration may have won a victory Wednesday night, but even victories come with a cost.

It's not just Republicans hopping on the drug testing bandwagon. On Tuesday, West Virginia Gov. Earl Ray Tomblin, a Democrat, issued an executive order requiring people who seek state-funding job training to first pass a drug test.

The order turns a pledge from this year's State of the State address into reality. It calls for mandatory, suspicionless drug testing of all participants in the Workforce West Virginia program, which provides training for youths, adults, and displaced workers.

"I continuously hear from business leaders located all across the state, that they have jobs available but the candidates cannot pass a pre-employment drug screening," Tomblin said in a statement. "When this happens, we have wasted taxpayer dollars, hurt our businesses, and limit our economic growth."

Tuesday's order requires testing for 10 categories of drugs and will deny training for applicants for 90 days if they test positive. A second flunked test will bar them for one year. The order allows applicants to appeal over test results. The state will pay for the drug tests and will hire an outside contractor to administer them.

Last year, Indiana became the first state to require people seeking job training to undergo drug tests. West Virginia is so far the only other state to follow.

Tomblin has proven quite a fan of drug testing. He successfully championed a measure this year that requires random drug tests for safety-sensitive jobs in the state's coal-mining industry. The bill was part of a broader mine safety package inspired by the 2010 Upper Big Branch mine disaster in which 29 miners died. Autopsy results showed no evidence that any of those men were using drugs.

Labor leaders and other workers' rights advocates have questioned the need for drug testing. West Virginia AFL-CIO President Kenny Perdue has challenged industries to show more evidence that drug use among the state's workforce is a problem. He told the Charleston Daily Mail he thought it was an excuse for companies to hire out-of-state.

"I do believe that the over-abuse of drugs in this state is not as bad as everybody makes it to be," Perdue said Tuesday. "I've talked to too many people and learned of too many cases that show that it's not as serious as they say."

No word yet on any legal challenges to the executive order or the miner drug testing bill.

The Obama administration released its 2012 National Drug Control Strategy and accompanying 2013 drug budget Tuesday, but while the administration touted it as a "drug policy for the 21st Century," it is very much of a piece with anti-drug policies going back to the days of Richard Nixon.

The federal government will spend more than $25 billion on drug law enforcement under the proposed budget, and despite the administration's talk about emphasizing prevention and treatment over war on drugs spending, it retains the same roughly 60:40 ratio of law enforcement and interdiction spending over treatment and prevention training that has obtained in federal drug budgets going back years.

The administration is high-lighting a renewed emphasis on drugged driving and is encouraging states to pass "zero tolerance" drugged driving laws. It is also emphasizing the massive increase in non-prescription use of opioid pain pills.

While the strategy calls for lesser reliance on imprisonment for drug offenders, it also calls for increased "community corrections" surveillance of them, including calling for expanded drug testing with "swift and certain" sanctions for positive tests. But drug testing isn't just for parolees and probationers; the drug strategy calls for expanded drug testing in the workplace, as well.

The drug strategy acknowledges the calls for recognition of medical marijuana and marijuana legalization, but only to dismiss them.

"While the Administration supports ongoing research into determining what components of the marijuana plant can be used as medicine, to date, neither the FDA nor the Institute of Medicine has found the marijuana plant itself to meet the modern standard for safe or effective medicine for any condition," the strategy said. "The Administration also recognizes that legalizing marijuana would not provide the answer to any of the health, social, youth education, criminal justice, and community quality of life challenges associated with drug use."

This year's drug strategy looks like last year's drug strategy, which looked like Bush administration drug strategies, which looked like Clinton administration drug strategies. When it comes to the federal drug war, it's more of the same old same old.

Look for an expanded version of this news brief Thursday afternoon, with deeper analysis and commentary from drug war observers.