CA Pot Legalization Wouldn't Trump Federal Law
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CA Pot Legalization Wouldn't Trump Federal Law
Posted by CN Staff on October 06, 2010 at 06:33:20 PT
By Ashby Jones
Source: Wall Street Journal
CA -- Even if Californians vote next month to legalize marijuana, possession of the drug will still be a criminal offense under federal law, which trumps state law almost every time under the U.S. Constitution.But crackdowns on users and small-scale growers could decrease if Californians pass Proposition 19, the ballot measure proposing to legalize marijuana for recreational purposes.
In a statement, a Justice Department spokesman said it was "premature to speculate on what steps we would take" in the event California passes the measure, but that it will continue "to focus its enforcement resources on significant traffickers of illegal drugs, including marijuana, in all states."Legal experts say that while large-scale sellers might be of interest to federal authorities, others are unlikely to be a priority."Is the government going to put hundreds more DEA agents in northern California to go after cannabis growers?" asked Mark Kleiman, a professor of public policy at the University of California, Los Angeles. "It might, but if there's no state-level enforcement, California would still be the safest place to grow pot."The federal government could try to use federal tax law to crack down on sale and distribution of marijuana. It might choose that avenue if it decides the California ballot measure runs afoul of international treaties signed by the U.S. that attempt to control the drug trade. That isn't clear.Another potential problem for federal officials: Legalization in California might make marijuana more available throughout the country, potentially undermining state laws elsewhere. That would put federal authorities "in an incredibly tough spot," said Gerald Uelmen, a professor of criminal law at Santa Clara University.Source: Wall Street Journal (US)Author: Ashby JonesPublished: October 6, 2010Copyright: 2010 Dow Jones & Company, Inc.Contact: wsj.ltrs wsj.comWebsite:  -- Cannabis Archives
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Comment #2 posted by HempWorld on October 06, 2010 at 08:24:24 PT
U.S. Can’t Subvert California’s Medical Marijuana 
Federal Court: U.S. Can’t Subvert California’s Medical Marijuana Laws
August 20, 2008
“Much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so.” –Ninth Circuit Chief Judge Alex Kozinski SAN JOSE, CA (ACLU) — In a first-of-its-kind ruling, a federal court today held that the U.S. Constitution bars deliberate subversion by the federal government of state medical marijuana laws. “Utilizing selective arrests and prosecutions, the federal government has sought to sabotage California’s reasoned approach to medical marijuana use,” said Graham Boyd, Director of the ACLU Drug Law Reform Project.“For the first time, a court has recognized that a calculated plan by the federal government to undercut state medical marijuana laws is patently unconstitutional. Today’s decision forecasts an end to any organized federal effort to sabotage state medical marijuana laws.” While previous high-profile cases affirmed the federal government’s power to enforce federal drug laws against individual medical marijuana patients and providers on a case-by-case basis, today’s ruling clearly recognizes that a calculated pattern of federal enforcement can render state medical marijuana laws effectively inoperable, which would violate the Tenth Amendment of the U.S. Constitution. “It is obvious to anyone paying attention that federal officials have gone to great lengths to sabotage state efforts to allow for appropriate medical marijuana use,” said Boyd. “The court made clear that this deliberate interference - once proved - would be unequivocally unconstitutional.” The case, County of Santa Cruz v. Mukasey, originated in 2003 when Bingham McCutchen LLP and the Drug Policy Alliance, along with private attorneys Gerald F. Uelmen and Benjamin Rice, sued the federal government for raiding a Santa Cruz-area medical marijuana cooperative, the Wo/Men’s Alliance for Medical Marijuana. The ACLU and others argued, and the court agreed, that the U.S. Constitution permits states to determine for themselves what is legal and what is illegal under state law, and that the federal government may not deliberately undermine this process. “The federal government has purposely set out to systematically subvert California’s medical marijuana program,” said Daniel Abrahamson, director of legal affairs for the Drug Policy Alliance. “Let us hope that this ruling leads to the merciful end of the federal government’s cruel war on sick and dying medical marijuana patients.” In today’s ruling, which rejected the federal government’s motion to dismiss the case, Judge Jeremy Fogel of the U.S. District Court for the Northern District of California, San Jose Division, relied on U.S. Court of Appeals for the Ninth Circuit Chief Judge Alex Kozinski’s opinion in Conant v. Walters, which stated, in part, “Applied to our situation, this means that, much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so.” In addition to U.S. Attorney General Michael Mukasey, the lawsuit names as defendants U.S. Drug Enforcement Administration (DEA) agents involved in the raid of WAMM, and administrators of the DEA and Office of National Drug Control Policy. The court’s ruling is available online at:
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Comment #1 posted by HempWorld on October 06, 2010 at 07:14:44 PT
Yes, it would because the prohibition of marijuana
is not constitutionally amended! (as was alcohol prohibition) Marijuana, Prohibition and the Tenth Amendment By Susan Shelley Sooner or later the question will have to be asked: Does the federal government have the power under the Constitution to stop cities and states from legalizing marijuana? The answer may be no. Federal law bans the possession of marijuana. But if a simple federal law can ban marijuana, why did Prohibition of alcohol require a constitutional amendment? A little history answers that question. The U.S. Constitution was ratified in 1789 to provide a framework for governing a nation composed of thirteen separate, sovereign states, each with its own state constitution and government. This was a new concept known as federalism. James Madison explained that the federal government would have only the powers delegated to it by the Constitution. Those powers would be "few and defined," he said, while the powers remaining in the state governments would be "numerous and indefinite." The states remained suspicious that the new federal government would encroach on their powers. They demanded and got ten amendments to the Constitution that specifically banned Congress from passing laws on matters that were understood to be within state control. The Tenth Amendment flatly declared, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." In 1919, the United States enacted a national ban on the manufacture, sale or transportation of intoxicating liquors. Because the Constitution did not give the federal government the power to regulate alcohol, Prohibition required a constitutional amendment, which was approved by two-thirds of the House and two-thirds of the Senate, then ratified by the legislatures of three-quarters of the states. In 1933, the nation reconsidered. A constitutional amendment repealing Prohibition was approved by two-thirds of the House and two-thirds of the Senate, then ratified by the legislatures of three-quarters of the states. Why did the country go to all that trouble if Congress could simply have declared alcohol a "controlled substance" and made it legal or illegal with a simple majority vote and a presidential signature? If marijuana is grown, distributed and consumed within state borders, and the state government decides that under some circumstances that is not a crime, by what authority does Congress override that judgment? Why is marijuana in 2003 different than alcohol in 1919? The Supreme Court ruled recently that the federal Controlled Substances Act does not contain an exception for medical necessity. Lawyers for the Oakland Cannabis Buyers' Cooperative argued that, exception or no exception, the Controlled Substances Act "exceeds Congress' Commerce Clause powers" and infringes the "fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments." The Supreme Court did not want to talk about it. "Because the Court of Appeals did not address these claims," Justice Clarence Thomas wrote, "we decline to do so in the first instance." The Court may not be able to duck the issue much longer. If the people of each state choose to decriminalize marijuana in some circumstances, the Constitution plainly reserves to them the power to do so. ---
Susan Shelley is the author of the novel The 37th Amendment, which includes an appendix on "How the First Amendment Came to Protect Topless Dancing." ---
Source notes: The Madison quotation is from Federalist No. 45, available online at; the Justice Thomas quotation is from U.S. v. Oakland Cannabis Buyers' Cooperative et al., 532 U.S. 483 (2001), available online at 
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