Former DEA Heads Repeat Their Bogus Constitutional Argument Against Prop. 19

In my column today about bogus objections to California's marijuana legalization initiative, I noted the argument that Proposition 19 is unconstitutional. Nine former heads of the Drug Enforcement Administration repeat that claim in today's Wall Street Journal:

If passed by voters in November, Proposition 19—also known as the Regulate, Control and Tax Cannabis Act of 2010—will be in direct conflict with the Controlled Substances Act (CSA), a federal law that makes the production and sale of marijuana a federal crime. In our federal system, a state law that conflicts with a federal law violates the Supremacy Clause of the U.S. Constitution and is void.

The CSA itself clearly states that federal law overrides state law when there is a positive conflict between the two jurisdictions. Thus there is very little likelihood that anyone is going to be paying sales taxes to the state of California or its municipalities when to do so would be admitting the commission of a federal felony.

The legal argument sounds superficially plausible, especially since the Supreme Court, based on a ridiculously broad reading of the Commerce Clause, has upheld national marijuana prohibition, even as applied to purely intrastate cultivation and possession of the drug by patients who are permitted to use it under state law. But it is one thing to say that the federal government may arrest patients for growing or possessing medical marijuana. It is quite another to say that the U.S. Constitution requires every state to arrest those patients too, which is what these former narcs in chief are claiming. A system that required states to ape every aspect of federal law—permitting what Congress permits, prohibiting what it prohibits, and applying criminal sanctions accordingly—would obliterate the last vestiges of federalism. Commandeering state and local officials to enforce a ban on a product that Congress deems unacceptable—something that did not happen even during alcohol prohibition, which unlike marijuana prohibition was constitutionally authorized—cannot possibly be reconciled with the 10th Amendment: "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."

As for the claim that no one will pay taxes on marijuana because growing and selling it will still be a federal crime, it has already been proven false. California collects something like $100 million in sales tax revenue from medical marijuana dispensaries every year, even though the drug is still prohibited for all purposes by the CSA.

More on the constitutional objection to Prop. 19 here.

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  • Zeb||

    federal law overrides state law when there is a positive conflict between the two jurisdictions

    The key part that they are ignoring is "positive conflict". Failing to make marijuana possession a crime does not positively conflict with federal law. There is no contradiction if it is federally illegal and legal under state law. In that case it is just confusing and stupid.

  • ||

    You are right and so these argument from these idiots has been driving me nuts. The feds can't MAKE the states make weed illegal.

  • Old Mexican||

    In our federal system, a state law that conflicts with a federal law violates the Supremacy Clause of the U.S. Constitution and is void.

    This is completely false. The "supremacy clause" clearly states that only laws MADE IN PURSUANCE of the Constitution shall be the law of the land, which excludes ipso facto any law that's clearly UNconstitutional.

    States have EVERY RIGHT to NULLIFY unconstitutional laws. IF the DEA idiot wants to argue using legaloid sophistry, he should be more upfront about it.

  • ||

    The CSA is de facto constitutional.

  • MJ||

    I agree with sentiment, but there has been precedent for this conflict between state law and federal law and the courts apparently do not consider federal drug laws unconstitutional. Perhaps the courts have not been directly asked to rule on that question, but I think we a good idea of what wwould happen if they were.

  • Collapse The Drug War||

    Bogus Constitutional argurment or thinly veiled threat?

  • Eric Holder||

    A system that required states to ape every aspect of federal law—permitting what Congress permits, prohibiting what it prohibits, and applying criminal sanctions accordingly—would obliterate the last vestiges of federalism.

    And your point is ... ?

  • Virginia||

    1. these DEA clowns suffer from delusional self-worth

    2. the WSJ piece actually has the following printed as a subtitle...

    Nobody is going to be paying state taxes on marijuana when doing so would be confession to a federal felony.

    I look forward to the California Board of Equalization response in the letters-to-the-editor section.

  • rhofulster||

    Is it possible that the editors of all of the Cal papers slamming p19 have gamed this out, and their opposition is a pretext for avoiding a tenth amendment showdown?

  • Tman||

    I think we can all agree that Gonzales Vs. Raich was a horrible precedent in terms of the Commerce Clause, but SCOTUS upheld the idea that federal law supercedes state legislation due to Marijuana being involved in "interestate commerce".

    Thomas' dissent in GvR was outstanding. One of my many favorite quotes from the dissent is the following-
    "If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite.""

    This is why if anyone wants to see legalization become a reality on our lifetime, we need to support politicians who are going to appoint conservative judges to the SCOTUS.

  • ||

    "This is why if anyone wants to see legalization become a reality on our lifetime, we need to support politicians who are going to appoint conservative judges to the SCOTUS."

    Maybe. But just maybe we also or instead need to use the deformation of our constitutional system in the name of the War on Drugs as a motivation to elect only those congress candidates who are pledged to repeal Drug Prohibition. If the candidate (whether incumbent or challenger) won't stand up and say, in front of witnesses, that the Drug War has got to go, and that scuttling it will be among his or her highest priorities in DC, then we should show that candidate the door. Here in California, anyone who votes for Prop. 19 (or voted for the earlier legalization of medical cannabis) without also voting for someone who is opposed to the Drug War is nullifying himself or herself.

  • ||

    These guys are getting really pissed "Because I said so" isn't working anymore.

  • Number 2||

    "But it is one thing to say that the federal government may arrest patients for growing or possessing medical marijuana. It is quite another to say that the U.S. Constitution requires every state to arrest those patients too, which is what these former narcs in chief are claiming."

    Except that California is not merely declining to enforce federal law or repealing a "me-to" law. California is building a regulatory, permit and tax structure based on commerce that the federal government has outlawed and criminalized.

    My view is that Prop 19 will accomplish little more than start a war of wills between California and the feds. The better approach is to make the case for reform of federal laws, at the very least to allow legalization on state-by-state basis.

  • The Heresiarch||

    Every state which has decrimnalized medical marijuana has likewise produced a form of commerce and trade in an illicit product. That so far has not elicited constitutional challenges.

    I think the error in reasoning is that the absence of a criminal law does not mean that the government has "created" a market in a positive sense. They have just removed a legal impediment to a market which has always existed (albeit illicitly). There is nothing in the Supremacy Clause which requires a state to make sure certain things are illicit under state law.

  • MJ||

    It does if the state legalization comes with a regulatory structure that requires compliance with state law means self-incriminating records with regards to federal law.

  • ||

    Prop 19 doesn't do that though.

  • MJ||

    Yes, a war that the establishment politicians of either party in California likely have no stomach or even desire for. If you don't have state politicians (especially in the executive branch) who are willing to go to the mat on the issue, then California will concede the battle to the feds.

  • ||

    California is building a regulatory, permit and tax structure based on commerce that the federal government has outlawed and criminalized.

    Not really; the initiative itself doesn't establish any regulatory or taxation system -- the only thing that Prop 19 directly legalizes is home production in a 5x5 space and possession of an ounce or less, neither of which are subject to taxation.

    It does allow for individual municipal governments to establish regulatory systems. This isn't any different from medical marijuana -- we've already seen Oakland establish (and then expand) taxation of medical marijuana commerce, and even go as far as to license large-scale production facilities.

    Even if you ignore the fact that this sort of thing is already happening, it doesn't seem like the state government itself would be regulating anything, or taking in any revenue. If a municipality or county decided to move forward with a regulatory plan, it seems like the feds would have to go straight after said local government, and not the state.

  • ||

    It won't be pretty if California legalizes it, then the DEA tries something rash, and a mob erupts on the DEA at whatever rash thing they're trying.

    Crowds already gather 'round and scream and heckle DEA schmucks when they raid a dispensary now.

    There is a very real disconnect between these DEA types and the hoi polloi. They really don't grasp that they - very deservedly in my opinion - come across as completely illegitimate in any social acquiescence in what they do. And it will be a tough slog for them once the man-in-the-street agrees with their own philosophy, which is that the ends justify the means.

    Watch Obama twist in the wind dithering over that one. Can't wait, really.

  • Old Mexican||

    Re: TheZeitgeist,

    It won't be pretty if California legalizes it, then the DEA tries something rash, and a mob erupts on the DEA at whatever rash thing they're trying.

    The DEA does not have the resources to go after all Californians once marijuana becomes legal; the DEA has relied on local law enforcement for their dirty work, but once these resources become unavailable, they will not be able to enforce the law and it will be the Whiskey Rebellion all over again which, contrary to what Public School History For Retards By Retards says, was NOT won by the FedGov.

  • ||

    What's going to stop local law enforcement from assisting the DEA in drug raids? They already assist in raids of med mj facilities that are legal under tate law.

  • Old Mexican||

    Re: Tulpa,

    What's going to stop local law enforcement from assisting the DEA in drug raids?

    Pressumably, Prop. 19 once it is approved.

  • CrackertyAssCracker||

    It won't be pretty if California legalizes it, then the DEA tries something rash, and a mob erupts on the DEA at whatever rash thing they're trying.

    Beauty is in the eye of the beholder, I guess. Cause that sounds frikkin awesome to me.

  • CatoTheElder||

    The narcs who wrote today's WSJ opinion article have pissed all over the Constitution for years -- decades in some cases -- and then have the audacity to refer to their oath to uphold and defend.

    What a bunch of fascist hypocrits. It's only fitting that they be called pigs.

  • ||

    Yeah, I don't want the drugs they want to keep illegal. I want whatever pimp dope they've got a stash of...which is power, the nastiest fucking drug of them all. Look how hard it is for them to face even a small component of their drug fix slipping away. Its like withdrawl or something.

  • CatoTheElder||

    Very good!

    I really don't care much whether Prop 19 is effective in allowing recreational marijuana use in California. I'm just looking forward to a very large number of California voters delivering a "fuck you" message to Washington and the pigs who wrote this WSJ article.

  • ||

    So now they want all states to enforce federal immigration law, or are they selectively playing the "states must do" game?

    Just checking to see if I gotta citizens arrest my illegal immigrant neighbor if Prop 19 passes, that's all. Fucking "DEA: the second most corrupt agency we've got."

  • Michael Ejercito||

    If the Supreme Court accepted the DEA's arguments, then Arizona would have a duty to enforce immigration law.

  • Jonathan||

    How does Sullum not even mention Prinz v. U.S. or N.Y. vs. U.S.? Commandeering is much more relevant than the commerce clause here....

  • Jonathan||

    How does Sullum not even mention Prinz v. U.S. or N.Y. vs. U.S.? Commandeering is much more relevant than the commerce clause here....

  • Dello||

    "It is quite another to say that the U.S. Constitution requires every state to arrest those patients too, which is what these former narcs in chief are claiming."

    Uh, isn't this all that AZ is trying to do with immigration?

  • IceTrey||

    Since California makes money off of pot sales aren't they guilty of conspiracy to break various federal laws? Is the DEA going to arrest the entire government of California?

  • ola||

    where does it say a state can't collect sales tax on the sale of an "illegal" product?

  • Masturbatin' Pete||

    California doesn't have to enforce federal law, but it does have to obey federal law. If it set up state marijuana dispensaries, or its hospitals distributed cannabis to patients, the feds could raid those facilities. I'm not aware of any law that says that states are entitled to violate federal law.

    That's not what would happen with Prop 19, but California would directly benefit from sales of marijuana by collecting tax revenue. Couldn't the federal government order California to cease collecting a share of each marijuana sale?

  • ||

    We at the government are charges with interpreting the constitution via the Supreme Court. The constitution gives us this authority.

    THEREFORE: if we say that the constitution gives camels the right to vote, then the constitution effectively says that camels can vote.

    Welcome to America.

    Go ahead, sell some drugs. We'll eventually get around to putting you away in our prison system for a long time.

    http://youareproperty.blogspot.....ality.html

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