6 ms·

Have a friend who posted this elsewhere, an interesting take on the unconstitutionality of 19. -------------------------- Prop 19 is 100% unconstitutional, an

by ed 16y ago

Have a friend who posted this elsewhere, an interesting take on the unconstitutionality of 19. -------------------------- Prop 19 is 100% unconstitutional, and it's not even close. It will get struck down by every court that reviews it, unanimously so by SCOTUS (if it makes it that far). It violates the Supremacy Clause of the Constitution which says Federal Law trumps State law (when they conflict) and Prop 19 clearly contradicts the Federal Controlled Substances Act. Now, medical marijuana also violates the Federal Controlled Substances Act, and so technically the Feds could go in and enforce federal drug laws against medical marijuana users/growers in CA, and they actually threatened to do so, but they have since opted to let California enforce that law on its own, which CA has basically decided not to do. That same thing could play out here, with the Feds making an empty threat to enforce FCSA in California, and CA calling the Feds bluff and basically refusing to enforce Federal law. Even if you support marijuana legalization (which I do), you shouldn't condone states simply ignoring Federal Law. If you think its acceptable for CA to ignore the FCSA, do you also think it's acceptable for states to ignore the Civil Rights Act of 1964, Obamacare, Federal Minimum Wage Laws? Also, it won't be hard for the Feds to force California's hand. The Feds can threaten to withhold funding from CA unless they follow what the Feds want. This is how the Feds forced a nationwide drinking age of 21 (see: South Dakota v. Dole).

vvpan 16y ago
The best scenario to my mind would be if the cops simply decided unanimously to ignore all marijuana offenses. On a side note, I really wonder how often cops act against their beliefs, such as arrest people who, they feel, did not harm.
jacoblyles 16y ago
It's wrong to call it "unconstitutional". California has no obligation to enforce federal law. From both an anti-prohibitionist and an anti-federalist perspective, I liked proposition 19. It's about time states pushed back against federal overreach. >" If you think its acceptable for CA to ignore the FCSA, do you also think it's acceptable for states to ignore the Civil Rights Act of 1964, Obamacare, Federal Minimum Wage Laws?" I never liked these "law and order" arguments. The civil rights protesters ignored state laws on segregation. What if they also ignored laws on rape, murder, and arson? Law and order with bad laws is tyranny.
- tptacek 16y ago
  People who opposed civil rights legislation called those laws "tyranny", too. The word appears to mean "law that I disagree with".
jscore 16y ago
You're missing the point. Even if it's unconstitutional and might/will be ruled so, its passage will send a message to everyone that change is coming. It will ignite a greater debate, and more states might/will follow. It will ignite change.
- tptacek 16y ago
  California state law is not an advocacy platform.
  - Semiapies 16y ago
    No, it's performance art.
dasht 16y ago
The Supremacy Clause does not mean that "Prop 19 is unconstitutional" it means that Prop 19 would not protect people from prosecution under federal law. For example, if I have a warehouse full of pot and the feds bust me, I can't point to Prop 19 (if it had passed) to get out of the bust. You are sort of right that the federal gov't can kind of use the commerce clause to (in my view) over-reach (e.g., threats of withholding various forms of funding). As a question of realpolitik, it's not so obvious how far that would have gotten.
- kingkilr 16y ago
  FTR the relevant supreme court case is Gonzales v Raich, which says the commerce clause covers marijuana grown in California, sold in California, and consumed in California. Passed by a conservative SCOTUS no less :).
  - GFischer 16y ago
    Thanks, I looked it up and it's very relevant to the discussion so I'll link it: http://en.wikipedia.org/wiki/Gonzales_v._Raich http://en.wikipedia.org/wiki/Gonzales_v._Raich "The Controlled Substances Act does not recognize the medical use of marijuana." "The government also contended that consuming one's locally grown marijuana for medical purposes affects the interstate market of marijuana, and hence that the federal government may regulate and prohibit such consumption. This argument stems from the landmark New Deal case Wickard v. Filburn, which held that the government may regulate personal cultivation and consumption of crops, due to the effect of that consumption on interstate commerce, however minute it may be."
    - chopsueyar 16y ago
      It's fungible (according to the Court).
  - dasht 16y ago
    Re the commerce clause covers [intra-state marijuana production, distribution, and use]. Sure. As I recall the court's main reasoning was that as a fungible commodity, there is no such thing as purely "intra-state pot". That's sensible. For example, suppose that 19 had passed and everyone played by the rules: lots and lots of marijuana were produced and consumed strictly within California. That will nevertheless have enormous impact on inter-state price, production, and distribution patterns throughout the US for a substance in whose trade Congress asserts there is a strong public regulatory interest. That decision did not overturn California's medical marijuana laws. Those are still operative. They are the authority by which, for example, dispensaries are owned and operated that do not violate any California laws. From time to time the federal government does take action against the medical marijuana industry but, mostly they leave it alone. One suspect that part of the reason for that is because the last time they cracked down heavily, they gave rise to medical marijuana laws like California's. The original distribution co-ops / businesses were not authorized under state law. They were in defiance of both state and federal law. They largely arose out of the AIDS crisis after it was realized that marijuana had both palliative and therapeutic benefits for many patients (with no lawful substitute coming even close). The feds tried hard to shut down those scoff-laws and parts of state law enforcement helped. In response, first many other wholly unlawful medical distribution efforts sprung up (like mushrooms overnight). Second, the state-level medical marijuana law went on the ballot and won soundly. The feds toned it down rather a lot, after that.
mkelly 16y ago
This situation fascinates me. CA has been ignoring federal law for a long time w.r.t medical marijuana. IIRC, during Bush, the feds actually did raid the medical marijuana dispensaries. (Glancing at https://secure.wikimedia.org/wikipedia/en/wiki/Medical_cannabis_in_the_United_States https://secure.wikimedia.org/wikipedia/en/wiki/Medical_canna... doesn't rule out that possibility but doesn't actually support it either.) Civil rights and the drinking age are high-profile examples of the Feds forcing states into compliance, but I wonder how widespread the state/federal discrepancies are about smaller things.
linuxhansl 16y ago
Wait... It seems to me that the Federal Controlled Substances Act itself is on quite shaky constitutional grounds. It is only enforceable under Congress' authority to regulate interstate commerce. See also http://en.wikipedia.org/wiki/Gonzales_v._Raich http://en.wikipedia.org/wiki/Gonzales_v._Raich
ajays 16y ago
In 1923, New York State passed a law repealing Prohibition, even though Prohibition was a part of the Constitution. http://bit.ly/9m0NDX http://bit.ly/9m0NDX One would imagine that a law of Congress has less "power" than a Constitutional Amendment?
tomjen3 16y ago
That doesn't make any sense - if the feds could do that, why did they need to pass an amendment to the constitution to ban alcohol?

by ed 16y ago

vvpan 16y ago

The best scenario to my mind would be if the cops simply decided unanimously to ignore all marijuana offenses. On a side note, I really wonder how often cops act against their beliefs, such as arrest people who, they feel, did not harm.

jacoblyles 16y ago

It's wrong to call it "unconstitutional". California has no obligation to enforce federal law. From both an anti-prohibitionist and an anti-federalist perspective, I liked proposition 19. It's about time states pushed back against federal overreach. >" If you think its acceptable for CA to ignore the FCSA, do you also think it's acceptable for states to ignore the Civil Rights Act of 1964, Obamacare, Federal Minimum Wage Laws?" I never liked these "law and order" arguments. The civil rights protesters ignored state laws on segregation. What if they also ignored laws on rape, murder, and arson? Law and order with bad laws is tyranny.

tptacek 16y ago
People who opposed civil rights legislation called those laws "tyranny", too. The word appears to mean "law that I disagree with".

jscore 16y ago

You're missing the point. Even if it's unconstitutional and might/will be ruled so, its passage will send a message to everyone that change is coming. It will ignite a greater debate, and more states might/will follow. It will ignite change.

tptacek 16y ago
California state law is not an advocacy platform.
- Semiapies 16y ago
  No, it's performance art.

dasht 16y ago

The Supremacy Clause does not mean that "Prop 19 is unconstitutional" it means that Prop 19 would not protect people from prosecution under federal law. For example, if I have a warehouse full of pot and the feds bust me, I can't point to Prop 19 (if it had passed) to get out of the bust. You are sort of right that the federal gov't can kind of use the commerce clause to (in my view) over-reach (e.g., threats of withholding various forms of funding). As a question of realpolitik, it's not so obvious how far that would have gotten.

kingkilr 16y ago
FTR the relevant supreme court case is Gonzales v Raich, which says the commerce clause covers marijuana grown in California, sold in California, and consumed in California. Passed by a conservative SCOTUS no less :).
- GFischer 16y ago
  Thanks, I looked it up and it's very relevant to the discussion so I'll link it: http://en.wikipedia.org/wiki/Gonzales_v._Raich http://en.wikipedia.org/wiki/Gonzales_v._Raich "The Controlled Substances Act does not recognize the medical use of marijuana." "The government also contended that consuming one's locally grown marijuana for medical purposes affects the interstate market of marijuana, and hence that the federal government may regulate and prohibit such consumption. This argument stems from the landmark New Deal case Wickard v. Filburn, which held that the government may regulate personal cultivation and consumption of crops, due to the effect of that consumption on interstate commerce, however minute it may be."
  - chopsueyar 16y ago
    It's fungible (according to the Court).
- dasht 16y ago
  Re the commerce clause covers [intra-state marijuana production, distribution, and use]. Sure. As I recall the court's main reasoning was that as a fungible commodity, there is no such thing as purely "intra-state pot". That's sensible. For example, suppose that 19 had passed and everyone played by the rules: lots and lots of marijuana were produced and consumed strictly within California. That will nevertheless have enormous impact on inter-state price, production, and distribution patterns throughout the US for a substance in whose trade Congress asserts there is a strong public regulatory interest. That decision did not overturn California's medical marijuana laws. Those are still operative. They are the authority by which, for example, dispensaries are owned and operated that do not violate any California laws. From time to time the federal government does take action against the medical marijuana industry but, mostly they leave it alone. One suspect that part of the reason for that is because the last time they cracked down heavily, they gave rise to medical marijuana laws like California's. The original distribution co-ops / businesses were not authorized under state law. They were in defiance of both state and federal law. They largely arose out of the AIDS crisis after it was realized that marijuana had both palliative and therapeutic benefits for many patients (with no lawful substitute coming even close). The feds tried hard to shut down those scoff-laws and parts of state law enforcement helped. In response, first many other wholly unlawful medical distribution efforts sprung up (like mushrooms overnight). Second, the state-level medical marijuana law went on the ballot and won soundly. The feds toned it down rather a lot, after that.

mkelly 16y ago

This situation fascinates me. CA has been ignoring federal law for a long time w.r.t medical marijuana. IIRC, during Bush, the feds actually did raid the medical marijuana dispensaries. (Glancing at https://secure.wikimedia.org/wikipedia/en/wiki/Medical_cannabis_in_the_United_States https://secure.wikimedia.org/wikipedia/en/wiki/Medical_canna... doesn't rule out that possibility but doesn't actually support it either.) Civil rights and the drinking age are high-profile examples of the Feds forcing states into compliance, but I wonder how widespread the state/federal discrepancies are about smaller things.

linuxhansl 16y ago

Wait... It seems to me that the Federal Controlled Substances Act itself is on quite shaky constitutional grounds. It is only enforceable under Congress' authority to regulate interstate commerce. See also http://en.wikipedia.org/wiki/Gonzales_v._Raich http://en.wikipedia.org/wiki/Gonzales_v._Raich

ajays 16y ago

In 1923, New York State passed a law repealing Prohibition, even though Prohibition was a part of the Constitution. http://bit.ly/9m0NDX http://bit.ly/9m0NDX One would imagine that a law of Congress has less "power" than a Constitutional Amendment?

tomjen3 16y ago

That doesn't make any sense - if the feds could do that, why did they need to pass an amendment to the constitution to ban alcohol?