Can the 10th Amendment Stop the DEA's Medical Marijuana Raids?

Jacob Sullum | August 27, 2008

Last week U.S. District Judge Jeremy Fogel allowed Californians challenging the Bush administration's medical marijuana policy to proceed with a lawsuit arguing that federal interference in this area violates the 10th Amendment. The plaintiffs, led by the Wo/Men's Alliance for Medical Marijuana in Santa Cruz County, argued that "the federal government has pursued a policy of threatening and utilizing arrests, forfeitures, criminal prosecutions and other punitive means, all with the purpose of rendering California's medical marijuana laws impossible to implement and with the intent of coercing California and its political subdivisions to enact legislation recriminalizing medical marijuana."

The U.S. Supreme Court has upheld the federal government's authority to prosecute patients and their caregivers for possessing medical marijuana even when state law permits them to do so. But Fogel ruled that if the plaintiffs could prove the federal government is deliberately  undermining California's medical marijuana policy through selecive enforcement of the Controlled Substances Act and other means, they could make a case that it is unconstitutionally "commandeering" the state legislative process. He cited a concurring opinion by Alex Kozinski in a 2002 case where the U.S. Court of Appeals for the 9th Circuit rejected the federal government's policy of punishing doctors who recommend marijuana as a medicine by revoking the registration that allows them to prescribe controlled substances. "Much as the federal government may prefer that California keep medical marijuana illegal," Kozinski wrote, "it cannot force the state to do so."

This "commandeering" business is a poor substitute for insisting that the federal government exercise only those powers granted by the Constitution, which do not include prohibiting intrastate cultivation and possession of a disfavored plant. But the 10th Amendment argument could open up enough space to let California and other states tinker at the edges of drug policy. By the time this case is resolved, of course, an Obama administration may already have stopped the DEA's harassment of medical marijuana users and providers. That's assuming he keeps his word. It's worth recalling that George W. Bush promised a federalist approach to medical marijuana when he first ran for president, and that the interference challenged by this lawsuit began not under Bush but under Bill Clinton. Bush's predecessor not only wanted to punish people for distributing medical marijuana but provoked the 9th Circuit's rebuke by seeking to punish doctors for expressing politically incorrect opinions about the drug.

Fogel's ruling is here (PDF).    

Comments

|8.27.08 @ 4:40PM|#

No.

|8.27.08 @ 5:02PM|#

It's called hope Mo Fo...not the Obama kind grant you, but the kind with a dash of naivety that says," Maybe, just maybe, the tenth amendment is still real."

It's better than listening to people cry about the disappearing, not disappearing, disappearing, not disappearing (oh no, head is spinning) middle class.

I think universal health care is coming in whatever form they can cobble together. OH PLEASE DON'T FORCE ME TO BUY INSURANCE I WILL BE VERY ANGRY. Anyways, IMO if we get universal health care, we can say bye bye to medical marijuana. Pure federal issue then.

|8.27.08 @ 5:09PM|#

Pac, if O'Bama brings in UHC and doesn't turn into a typical politican (turn into/become more of...) then we may see medicinal marijuana as an acceptably prescribed medicine.

Both invlove a massive amount of the "hope" thing you were talking about.

|8.27.08 @ 5:18PM|#

"If you don't believe in the HogFather there won't be any presents."

|8.27.08 @ 5:20PM|#

"""This "commandeering" business is a poor substitute for insisting that the federal government exercise only those powers granted by the Constitution,"""

I agree, however government powers are far beyond the constitution these days. Our 18th century style take on federal government is long, long, long, outdated. I dare say all three branches of government have abandoned that view.

|8.27.08 @ 5:21PM|#

By the time this case is resolved, of course, an Obama administration may already have stopped the DEA's harassment of medical marijuana users and providers. That's assuming he keeps his word.

You're not from around here, are you?

|8.27.08 @ 5:22PM|#

Can the 10th Amendment Stop the DEA's Medical Marijuana Raids?

I can hear the DEA laughing from here.

|8.27.08 @ 5:28PM|#

Gimme Back My Dog | August 27, 2008, 5:21pm | #

By the time this case is resolved, of course, an Obama administration may already have stopped the DEA's harassment of medical marijuana users and providers. That's assuming he keeps his word.

You're not from around here, are you?

By "around here", I assume you are referring to the Milky Way Galaxy.

|8.27.08 @ 5:44PM|#

If by the "10th Amendment," you mean a high explosive device named the "10th Amendment," then yes, most likely. Otherwise, notsomuch.

Naga Sadow|8.27.08 @ 5:46PM|#

Not that I'm not hopeful that the 10th amendment argument will prevail but wasn't there already the view that this is well within the Commerce Clause territory of Congress?

Naga Sadow|8.27.08 @ 5:49PM|#

I'd better elaborate. That the federal government will say that yes the 10th amendment is a cherished part of the bill of rights but this goes with their mandate to oversee interstate commerce. Interstate commerce being the reason we have the WoD being viewed as legitemate by Congress.

Naga Sadow|8.27.08 @ 5:50PM|#

Damn! Bad spelling and double negatives! I've gotta remember how to preview.

|8.27.08 @ 6:04PM|#

Has the 10th Amendment stopped anything since FDR?

|8.27.08 @ 6:40PM|#

If by the "10th Amendment," you mean a high explosive device named the "10th Amendment," then yes, most likely.

"I'm sure they'll listen to Reason." (cookie for the reference.)

Elemenope|8.27.08 @ 6:42PM|#

Has the 10th Amendment stopped anything since FDR?

Gun-free School Zones.

But I get your point: not much.

Hiro Protagonist|8.27.08 @ 6:46PM|#

greenish,
It's not like every other thread on this site doesn't reference Snow Crash.

ktc2|8.27.08 @ 7:03PM|#

No, of course not. They'll allow it "for the children" just like all obviously unconstitutional drug war bullshit.

|8.27.08 @ 7:26PM|#

Naga is right. The 10th is basically redundant, as it is merely a reminder that the Constitution outlines what Congress can do. Anything not in the Constitution, Congress may not do. So if we already determined that under the Commerce Clause Congress may regulate marijuana, then the 10th seems pretty useless, as it is already considered a power delegated to Congress within the Constitution.

SIV|8.27.08 @ 7:36PM|#

My comments on Obama's "promise" of not interfering with the States on med mj
Sullum loses me on this.....

Travis|8.27.08 @ 7:37PM|#

This from a thread back in May talking about Obama.

SIV | May 15, 2008, 6:54pm | #

PIRS,

he believes medical marijuana should be subject to [U.S. Food and Drug Administration] regulation like other drugs

He doesn't have to break the promise.He put an FDA approval qualifier on it. How long would it take the FDA to approve privately grown "street" mj? I predict the sun will expire first.

Travis|8.27.08 @ 7:39PM|#

SIV,

You Suck.

SIV|8.27.08 @ 8:02PM|#

I suck?
I'm all for totally unregulated marijuana for whatever... buy it,sell it, grow it, smoke it, eat it, make innefficent hippie hemp crafts out of it, power your hemp seed oil fueled microbus with it.
Obama is the one who is only OK with med mj when it is approved by the FDA

Cactus|8.28.08 @ 1:32AM|#

Were I governor I'd order the state police to protect marijuana dispensaries and expel all DEA from my state. If they wouldn't go peaceably I'd send the state guard to remove them.

Furthermore I'd abolish all prohibitive state drug laws in my state and ban the enforcement of federal ones.

And then I'd wait to see if the feds to send in the army.

Travis|8.28.08 @ 8:49AM|#

SIV,

I agree with your that's why I posted what you wrote. The reason you suck is you posted a minute before I did.

Traivs|8.28.08 @ 8:50AM|#

I meant,

I agree with you

Robert Goodman|8.28.08 @ 10:39AM|#

I just don't see it. All the defendants have to do is show that they're "going where the problem is", which it seems they can easily do.

|8.28.08 @ 11:09AM|#

The 10th amendment was dispatched by Wickard v Filburn. In Raich, the black-robed clowns observed that home-grown medical cannabis was "in competition with" interstate trafficking in the black-market... "It has an effect" they observed; never mind that the identical "effect" would occur should the patient simply quit using "marijuana"-- and isn't that the whole idea of prohibition?

We have truly traversed the rabbit hole.