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Federal Law Does Not Pre-Empt California's Medical Marijuana Policy

| November 17, 2006

Yesterday a California judge issued a tentative ruling that rejects an argument by three counties (San Diego, San Bernardino, and Merced) that the state's medical marijuana law is unenforceable because it conflicts with the federal Controlled Substances Act. Although the U.S. Supreme Court has held that the federal government can continue to charge medical marijuana users under the CSA despite California's law, the judge said, that does not mean California's law is invalid. According to the ruling, the removal of state penalties for medical use of marijuana does not constitute a "positive conflict" with federal law.

The case was brought by the three counties, which have resisted implementing the medical marijuana law by issuing ID cards to patients with doctors' recommendations. The ACLU, which represented patients in the case, says the counties have indicated they will now comply with the law.

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|11.17.06 @ 5:12PM|

Score one for the good guys.

|11.17.06 @ 5:15PM|

Great! The next big hurdle will be finding a state prosecutor willing to be prosecuted by the Feds for refusing to cooperate in Federal CSA-related investigations. Or maybe that's a few more hurdles down the road.

|11.17.06 @ 5:27PM|

"We will not beat you with a club, but the Feds will."

I suppose that's progress.

|11.17.06 @ 5:32PM|

You know, someone should propose a Constitutional Amendment to clarify this whole federal/state powers thing once and for all.

I recommend something like:

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.



That sounds a bit clunky, but I don't have time to polish it up right now.

JN|11.17.06 @ 5:37PM|

Sorry MikeP, That will never fly.

|11.17.06 @ 5:49PM|

MikeP,

That's only one better than an ink blot. Really, where do you come up with this kind of stuff? Reading some old, out-of-date documents again?

Bret|11.17.06 @ 5:58PM|

One my call them "horse-and-buggy" documents. Thanks Frank ...

Bret|11.17.06 @ 5:59PM|

*my = might.

|11.17.06 @ 6:02PM|

* = might/my

|11.17.06 @ 6:03PM|

Sorry that was stupid

|11.17.06 @ 6:06PM|

"One (might) call them 'horse-and-buggy' documents. Thanks Frank ..."

Who is Frank?

|11.17.06 @ 6:23PM|

The next big hurdle will be finding a state prosecutor willing to be prosecuted by the Feds...

Or perhaps a sherrif or police chief who is willing to stand up and refuse to collaborate with the DEA.

Or better yet arrest DEA agents for violating the rights of the people he has sworn to serve.

Hey, an old man can dream, can't he? It's one of the few pleasures in my declining years.

Bret|11.17.06 @ 6:42PM|

Bleh:

Franklin Delano Roosevelt. Liked to insinuate that the Constitution was a dated document and often wasn't applicable to modern times. He called the Interstate Commerce Clause was a "horse-and-buggy" clause.

http://newdeal.feri.org/court/fdr5_31_35.htm

|11.17.06 @ 6:49PM|

As a general rule, the federal government cannot draft state employees into the duties of the federal government. That's the basic take away message from Printz v. U.S. (1997).

|11.17.06 @ 6:49PM|

[Feigning shock] FDR didn't respect the constitution? Stop the presses!

|11.17.06 @ 7:31PM|

So, these three counties will now comply and give medical patients their pot approval cards.

Hooray!

But, do you trust these @$$#0!E$ not to turn the list of approved patients over to a Federal Narcotics Officer or Prosecutor?

thoreau|11.17.06 @ 7:58PM|

Stuff like this is why I'm so glad I'm an ACLU member.

|11.17.06 @ 8:10PM|

I couldn't agree more.

Fight on, grubby orc!

|11.17.06 @ 9:36PM|

Everybody was Grubby Orc Fight-ing!

|11.18.06 @ 11:47AM|

Hmm I wish there was an ACLU that didn't care if people celebrated christmas.

Well, the NRA will have to do it for now.

thoreau|11.18.06 @ 12:29PM|

kwais-

Yep, the ACLU does bug me on that issue. Still, a few Christmas tree lawsuits is a small thing in comparison to the other good things that they do.

And even with the Christmas tree lawsuits, while I think they're ridiculous, the libertarian silver lining is that they are objecting to an expenditure of public money. Now, the City Hall Christmas Tree is small potatoes in the big scheme of things, and hardly worth suing over, but it's still an expenditure of public money. If a Mayor decided to not even bother with the City Hall Christmas Tree, saving the expense of both the tree and the lawsuit, that wouldn't exactly be a bad thing for the taxpayers.

But, still, I wish they'd stop focusing on the trivial stuff.

Robert Goodman|11.18.06 @ 2:54PM|

Why is this so hard for people, even lawyers, to understand? It's just overlapping jurisdiction. If there were taken to be a conflict between the state & federal law every time one but not the other prohibited an action, then hardly any legislation would be possible.

A way to keep it straight is to remember that gov't doesn't permit actions, but only prohibits them. That is, every action that's not explicitly illegal is legal, rather than vice versa. Where it appears that gov't is permitting action, or the law takes that form, what it really means is that an exception is being made to a prohibition. However, neither level of gov't is allowed to make exceptions to the other's prohibitions, just as neither level is allowed to make the other make a prohibition.

So of course there's no positive conflict in the case at hand. Even in a practical sense, it establishes another way for someone to possess marijuana legally; it's just that they must also establish themselves as being within one of the federal exceptions-to-the-prohibition as well as within this state exception-to-the-prohibition. It should not be presumed that no medical marijuana patient or caregiver will ever be able to fall within one of the federal exceptions. But even if that were the case, it would not be a positive conflict in the laws.

|11.18.06 @ 5:10PM|

We all know that this is just the next step in the march toward legalization.

Or so I hope.

|11.18.06 @ 5:42PM|

Robert Goodman,

Wouldn't it be nice if there were some document that clearly laid out what the jurisdictions of the federal government were with respect to the state governments? Perhaps this document could do other things as well, but it ought to include a section that delineated the specific areas that the federal legislature was permitted to pass legislation on. Maybe it could also have a statement toward the end that made it really clear that anything that the federal legistlature wasn't specifically empowered to legislate is the jurisdiction of the individual state legislatures.

I don't know. Just trying some out of the box thinking here...

|11.19.06 @ 5:57AM|

Dr T,
Everytime I think it would be "me" to join the ACLU, they do something that makes me not want to.

I mean, I don't like christmas and I really would be happier if the city govt had nothing to do with christmas.

|11.19.06 @ 7:23AM|

For those who advocate ACLU membership, how closely do you track the ACLU's activity?

|11.19.06 @ 1:41PM|

The ACLU seems strangely silent on the 2nd amendment. That's probably the main reason I haven't had much to do with them.

James Anderson Merritt|11.19.06 @ 3:32PM|

"the state's medical marijuana law is unenforceable..."

As I recall, Prop. 215 didn't really need a lot of "enforcement," except in the sense that it directed local governments to establish practices for confirming med mj patient status. The point of 215 was to reduce or eliminate enforcement of existing non-federal anti-pot laws, at least as they applied to the use of pot as medicine. In fact, here are the key clauses of the actual legislation we passed by a vote of the people in 1996:

====
(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.
(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.
(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
(e) For the purposes of this section, ''primary caregiver" means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.
====

Where is anything in the above, which requires "enforcement," as opposed to mere "compliance" on the part of the affected government entities?

I suspect that the real problem here is the reliance by various municipalities and counties on federal drug war money, which certainly comes with strings attached. At least, recipients are probably expected to document their efforts on behalf of the drug war and, as the federal government does not recognize any medical use exception, local compliance with Prop. 215 probably threatens the flow of drug war dollars into local government coffers. I would bet my next 2007 federal income tax prepayment that the loss of federal drug war money is the "onerous burden," which makes Prop. 215 "unenforceable." Good for the judge in deciding that the complaining counties had no legitimate case.

James Anderson Merritt|11.19.06 @ 3:50PM|

I read the actual decision and saw that it was concerned with the BODY of California law on medical marijuana, and not just Prop. 215 (which is commonly referred to in conversation as "California's Medical Marijuana law"). Apparently the counties' beef was more with legislation that set up the ID card scheme -- which did require some action on the part of the counties -- than with Prop. 215. Even so, I think the counties stretched the meaning of "enforcement" to the point of distortion, by using it to describe implementation of the ID card program. And I still think the larger (and, officially unspoken) issue here was probably federal money and the prospect of losing it.

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