Marijuana

Is Proposition 19 Unconstitutional?

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Nine former DEA administrators are urging the Obama administration to challenge Proposition 19, California's marijuana legalization inititiative, if voters approve it in November. They argue that state legalization of marijuana would violate the Constitution's Supremacy Clause, which says "this Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land." Since Prop. 19 conflicts with the federal Controlled Substances Act, they say, it is unconstitutional. "The Justice Department invoked the Supremacy Clause in the State of Arizona," says former DEA Administrator Peter Bensinger, "and in that case the laws weren't even in direct conflict."

Bensinger is talking about the Obama administration's challenge to the Arizona law that requires police to check the immigration status of people they encounter in the course of their work and establishes state penalties for immigration-related offenses such as failure to carry a green card. But while controlling the nation's borders is clearly a federal concern, controlling the intrastate production, distribution, and consumption of marijuana is not. Even allowing for the Commerce Clause casuistry that has blessed such invasions of local territory, Bensinger et al. are wrong in suggesting that states must criminalize any commodity that offends Congress. During alcohol prohibition—which, unlike drug prohibition, was rendered constitutional through the old-fashioned method of amending the Constitution—some states adopted their own drink-suppressing measures but did not necessarily enforce them, while others declined to approve local versions of the Volstead Act or ultimately repealed them. Bruce Fein, who served in the Justice Department during the Reagan administration and now serves on the advisory board of the pro-legalization group Just Say Now, explains:

Nothing in the Constitution requires a state to prohibit as a matter of state law and prosecution what the federal government has chosen to prohibit as a matter of federal law and prosecution. Proposition 19 leaves the power of the federal government to enforce federal prohibitions on marijuana trafficking or use unimpaired.

The DEA, of course, won't have the resources to arrest all the pot growers, sellers, and users in California, or even a substantial portion of them. But that does not mean it can conscript state law enforcement agencies to do its dirty work.

In January, when Los Angeles Times editorialists were making the same argument about state pot legalization that Bensinger et al. are raising now, Drug Policy Alliance attorney Tamar Todd set them straight.

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  1. Hopefully after marijuana gets legalized I get to have my coffee the way I want it: black, with a spoonful of meth.

  2. I had the chance to discuss prop 19 with a local district attorney in So Cal and he raised the same arguement about the supremacy clause trumping state law. You’d think practicing attorneys would unsderstand that the supremacy clause doesn’t compell states to enforce federal law. But I guess not

    1. Or that the Supremacy Clause can not conflict with the tenth amendment.

    2. It’s like saying that if you have a double-locked door, that you can’t unlock one lock while the other remains locked. There are loads of things that are against federal law but not against the laws of some or any states. Would these lawyers turn things around and say Congress can’t make new laws about something that states haven’t legislated about, because that would create a conflict between state & fed law?

  3. Soooo, you wish to argue that Prop 19 is Unconstitutional but when your ilk sought to outlaw marijuana you never went through the process of amending the Constitution? What the fuck? Am I crazy or is the prohibition of marijuana actually what is Unconstitutional here? And if so, could somebody please bitch slap these retards.

    1. ^^^^^
      1000x this

    2. Here’s all you need to know about the Constitution as amended: it’s a dead letter. It’s no more relevant the workings of the US government than the Declaration of Independence.

      Lots of folks pretend otherwise, but they’re just playing make-believe.

      1. Clarence Thomas still believes in it, but among those with power, he appears to be the last man standing. (ommitting Ron Paul, since, while I respect the man, his voting no on everything doesn’t seem to have done a whole hell of a lot).

    3. Dissenting opinion Gonzales v. Baich

      “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers?

      “In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana?”

    4. What I was thinking.

  4. To actually legalize MJ in an effective fashion, the law will have to change on a Federal level.

    1. How many federles are prepeared to die for this principle?

      1. None.

        But they are willing to kill as many as it takes.

          1. + murder 1

    2. If a whole bunch of states legalize, the Federal level will be dead and buried, because the DEA can’t cover that much ground. Also, at a certain point states that legalize are going to get sick of the DEA busting in.

      The dominoes may be starting to fall in the case of MJ. Let’s see what happens with Prop 19. And doesn’t WA also have something up for a vote in November? I really should know considering I live here.

      1. The DEA won’t even be able to cover california. Consider that right now we mostly fight a war at californias border. After it’s legalized the war will be at californias border which is much bigger.

        I won’t to see this shoved down the opposers throats just as hard as it was shoved down everyone elses throat. If it makes you uncomfortable to think about others smoking pot then I hope you are unlucky enough to have laws changed so that you are sent to jail for nothing.

        End prohibition California. The rest of us are counting on you to set the example…BTW you started the whole prohibition so it’s good that you are ending it as well.

        Go Cali!

    3. To actually enforce Federal MJ laws in an effective fashion the DEA will have to enlist the help and services of law enforcement locally.

      1. Judging by medical marijuana raids in states that allow it, local law enforcement is glad to help.

    4. Actually they’ll have to throw out a UN treaty from 1961 on narcotics.

    5. You have medical marijuana that’s against federal law too… Eric Holder said they won’t get involved and I heard Obama say the states should decide on marijuana a long time ago..

      1. Actually, legalizing medical marijuana at the federal level is the only way to get around the UN treaty without pulling out of it.

  5. pro-legalization group

    Tuesday Funny!

  6. Poor little 10th amendment, it’s like no one knows he’s even there.

    1. Except the racist States’ Righters – cause only racists invoke States’ Rights.

    2. I’m just an inkblot, just like my next door neighbor, the 9th Amendment.

  7. The Supremacy Clause is in place so that Bill O’Reilly can take his kids anywhere in the United States without fear of having them run down by you potheads.

  8. Since the 10th has been effectively dead for a long time now, they’re pretty much right.

    But that doesn’t mean he can’t ignore them. (I am in no way suggesting that I have any faith in his will to do so.)

  9. Isn’t this the opposite of what BHO is saying in AZ? In AZ, it’s supposedly unconstitutional for the locals to enforce the federal law, right? So shouldn’t BHO be pushing the same line, that every state should decriminalize?

    1. I was thinking exactly that – turn the argument on its head – HEY! It works this way, too!

      Heads I win! Tails you lose!

    2. In AZ, he’s saying that AZ can’t make their own version of an enumerated federal power, which is correct (though lazy.)

      In CA, he’s saying that CA state law can’t undo federal law, which is also correct, and about as textbook a case of Supremacy argument as you can get. (Which doesn’t mean the federal law is right or valid.)

      In both cases he is arguing exactly the same thing, that state law cannot undo federal law.

      1. I really don’t see how a state enforcing a federal law is “making their own version of an enumerated federal power.”

        Another of Congress’ enumerated powers: “To provide for the punishment of counterfeiting the securities and current coin of the United States.” So if Arizona passed a law against counterfeiting, and enforced it, that would be unconstitutional?

        But you may well be correct that Obama is consistently on the side of centralized power.

        1. “So if Arizona passed a law against counterfeiting, and enforced it, that would be unconstitutional?”

          And further, if Arizona then repealed said counterfeiting law, would that too be an unconstitutional violation of the Supremacy Clause?

          Lawyers sure live a wacky world.

        2. I really don’t see how a state enforcing a federal law is “making their own version of an enumerated federal power.”

          Because they are not enforcing federal law, they are violating the 4th Amendment. If NJ made a law that said they could detain anyone who looks like a kidnapper until they prove they’re not, that would not be “enforcing federal law against kidnapping.”

          But you may well be correct that Obama is consistently on the side of centralized power.

          May? What are your doubts?

      2. Of course it’s true that CA law won’t undo federal law if Prop. 19 passes. But that doesn’t invalidate Prop. 19.

  10. Who cares, really? As you say, if the feds want to enforce marijuana laws in California, so be it. They’ll never have the resources to keep up and the PR effects will only spread legalization to other states.

    Ahh the soothing sounds of deprecated bureaucrats…

    1. the soothing sounds of deprecated bureaucrats

      You have that CD too? Vol.7 of Ultimate Relaxation Noises?

      1. Isn’t that the third Maeror Tri album?

    2. “Deprecated Bureaucrats” would be an excellent name for a rock band

      1. Bands are going to need 10 names from now on. Otherwise all the band-name-gold this board produces will go to waste.

    3. They’ll never have the resources to keep up and the PR effects will only spread legalization to other states.

      You could have said that same thing in 1980 and it would make just as much sense then, but how has that turned out?

      Most of our current crop of drug warriors KNOW for an absolute fact that they are full of shit, but will never change their policies. You are underestimating your enemy’s will.

      1. The enemy is done this time. Once cali legalizes it the game is won.

        Already states are decriminalizing it like wildfire. Medical initiatives are in most states. Cali will legalize in Nov within 5 years you will see 3-4 other states do it. In 10 years you will see about 50% of the states with pro marijuana laws. Once the rest see the income from drug tourism, and dispensary money the game will be over.

        The opposers will have this shoved right down their throats as it should be. For to long these people have tried to decide what we can do. Enough. The battle is one. Go cali go.

  11. This is an amazing legal argument.

    There are many, many, many difficult questions regarding federalism, not all of which I am sure would be resolved against the Prohibitionists. There are even some that this anti-Prohibitionist is not sure *should* be resolved against the Prohibitionists.

    Among them are the extent of the Commerce power; the meanings of the Ninth and Tenth Amendments; the constitutionality of conditional federal grants; and many more.

    Among them *isn’t* whether a State has the power to repeal its own criminal laws if it so wishes. Maybe the feds can pull funds in retaliation. But they can’t legally compel the state not to repeal.

    Any lawyer who even tries to push this frivolity deserves to see the bar’s disciplinary committee.

  12. Oooh. My board of county freeholder is 4 Democrats and 2 Republicans so far. Two of the Democrats are up for election in November. I was hoping the Republicans would win both seats. Now I really want the Republicans to win both seat. I would be so much fun to present constitutional arguments for ending all county police investigations of marijuana cases to a Republican majority board.

      1. New Jersey. We’re having our own fight with the feds over medical marijuana. If California legalizes recreational marijuana, it will open up debate across the country.

  13. “But that does not mean it can conscript state law enforcement agencies to do its dirty work.”

    But can the states volunteer their officials? Isn’t that what Arizona did, on another issue?

  14. In AZ, he’s saying that AZ can’t make their own version of an enumerated federal power, which is correct (though lazy.)

    While the federal power over naturalization is exclusive, I don’t think its terribly obvious that the federal power over immigration is.

    If it is exclusive, then there is a lot of state law on the books of every state that needs to be struck down. Unless the feds pass a new law stating that the states can have laws on immigration, of course, which I don’t believe they have.

    If federal immigration power is not exclusive, then even under the Supremacy Clause the states can have immigration laws so long as they are not contrary to federal law. And I don’t think there’s any way to argue that the AZ law is contrary to federal law.

    In CA, he’s saying that CA state law can’t undo federal law, which is also correct, and about as textbook a case of Supremacy argument as you can get. (Which doesn’t mean the federal law is right or valid.)

    California decriminalizing pot doesn’t have any effect, at all, on federal law. The feds can still enforce their law to their heart’s content in CA.

  15. you know what? this shit isn’t even gonna pass cause of too many fucking stupid people.

    also- hey reason commenters, can I get a rundown on the propositions?

    19-yes
    20- ?
    21- NO
    22- ?
    23- yes
    24- yes? it repeals a tax so that’s good
    25- no, make it harder to pass taxes is good right?
    26- yes, again, makes it harder to pass taxes it seems
    27- ?

    what say you

  16. To paraphrase Justice Holmes:

    Nine Idiot DEA Administrators is enough.

  17. You fuckers in those rogue states need to learn to love government!

    Oh, wait…

  18. !!! Keep DOPE ALIVE !!!

  19. The Constitution concerning federal verses the states: Both Thomas Jefferson and James Madison (I think they were instrumental in writing the law of our land) pushed jury nullification and states superseding the federal in respect to federal laws that were contrary to the letter and spirit of our founding law (the Constitution). (I’m drinking, so I apologize for my lack of clarity in the point I’m trying to make.)

  20. Am I wrong in believing the difference between Az. and Ca. is the amount of influence they have on the Nation ($$$,population)? Can California wield enough clout to pull this off first, make a stand and clear the way for other states that might pursue a similar course and cause a proper domino effect? Even if only in the western States at first.

    1. For good or ill, the AZ approach seems to be quite popular. I don’t have a list or anything, but I seem to remember several states being interested in it. VA is the only one I can name off the top of my head.

  21. Is someone going to challenge the Constitutionality of existing federal drug laws? There is no liberty in prohibition.

  22. They [the ex-DEA administrators] argue that state legalization of marijuana would violate the Constitution’s Supremacy Clause, which says “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land.”

    The above proviso means that only constitutionally valid laws shall be the supreme law of the land, which obviously EXCLUDES unconstitutional laws such as Drug Prohibition (since Congress has no enumerated power to regulate what people put in their bodies.)

    By the way, the Interstate Commerce clause only gives power to Congress to keep commerce regular (i.e. with no obstructions), which does give Congress the power to strike down protectionist schemes set up by the States against each other, but no more than that.

    1. The above proviso means that only constitutionally valid laws shall be the supreme law of the land, which obviously EXCLUDES unconstitutional laws such as Drug Prohibition (since Congress has no enumerated power to regulate what people put in their bodies.)

      If the Lautenberg Amendment is an exercise of the power to regulate commerce among the several states, so are bans against marijuana.

      1. Re: Michael Ejercito,

        If the Lautenberg Amendment is an exercise of the power to regulate commerce among the several states, so are bans against marijuana.

        The Lautember Amendment is on its face unconstitutional as it violates the 4th Amendment (as it seeks to control property that does not belong to the FedGov), the 2nd Amendment plus it goes beyond the scope of the Interstate Commerce clause as I stipulated above; so too a ban on marijuana sale and use is unconstitutional.

        At least the early 20th Century Prohibitionists understood the Constitution enough and respected it enough to promote (and obtain) a Constitutional AMMENDMENT against alcohol, never mind the Interstate Commerce clause and other miscontruances.

        1. The Lautember Amendment is on its face unconstitutional as it violates the 4th Amendment (as it seeks to control property that does not belong to the FedGov), the 2nd Amendment plus it goes beyond the scope of the Interstate Commerce clause as I stipulated above; so too a ban on marijuana sale and use is unconstitutional.

          Similar state laws would not be unconstitutional.

  23. There is as much explicit authorization for federal immigration authority as there is for federal drug authority: i.e., nada. Disagree with me? Then point out the relevant parts of the Constitution, and explain your reasoning, which is generally more than the Congress or Supreme Court ever did.

    Proposition 19 is completely Constitutional, and would be even more pristinely so if all it did were to modify or eliminate all existing State anti-marijuana laws.

    To the person who asked for a rundown on the propositions, Prop. 27 eliminates the Citizens Redistricting Commission, which was created in 2008 to address our gerrymandering problem, as well as key passages of previously existing law, which were also intended to avoid gerrymandering. In essence, it kills the most recent anti-gerrymandering effort before that effort can possibly bear fruit, and it clears the way for more aggressive gerrymandering, wiping the legal slate clean and taking us back to a “whatever the legislature wants” situation. I urge “NO” this time. We will have plenty of opportunity to replace the CRC with some other approach, once the CRC proves effective or not.

  24. Marijuana, for any use, is illegal under the Federal Law. John Adams, our Founding Father said the following: Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people; and not for profit, honor, or private interest of any one man, family, or class of men; therefore, the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require it. John Adams, Thoughts on Government, 1776

  25. On the Supremacy Clause…
    Alexander Hamilton, our Founding Father said The local interest of a State ought in every case to give way to the interests of the Union. For when a sacrifice of one or the other is necessary, the former becomes only an apparent, partial interest, and should yield, on the principle that the smaller good ought never to oppose the greater good. Alexander Hamilton, speech to the New York Ratifying Convention, June, 1788

  26. Marijuana MUST be legalized at the FEDERAL LEVEL first for proper control, regulation and taxation at the state level. But bear in mind what our Founding Father said…

    George Washington, our Founding Father said… It should be the highest ambition of every American to extend his views beyond himself, and to bear in mind that his conduct will not only affect himself, his country, and his immediate posterity; but that its influence may be co-extensive with the world, and stamp political happiness or misery on ages yet UNBORN. George Washington, letter to the Legislature of Pennsylvania, September 5, 1789

  27. ALRIGHT 1-2-3

    You California people are in SERIOUS NEED, I mean SERIOUS NEED of treatment for MARIJUANA DEPENDENCY!!!!!

    Pot is a gateway to stupidity. That is why they call it dope. We don’t want POT babies in the USA.

    If the USA military is here and they were given instructions to bomb all pot users and sellers. No one would be selling or using pot unless they are suicidal.

    You ought to treat that marijuana dependency. If you are old and still using pot, you never really matured.

  28. Prop 19 “is” the new reefer madness that is swallowing California. These reefer marijuana dependent people have GONE MAD!!!!

  29. It’s funny how the people who are against this proposition only attack the ‘dope smokers’ with antique arguments. The others are actually debating the merits of the legal issues at hand if this thing passes. To me it’s clear that prop 19 is constitutional, scotus erred in the Gonzales ruling, and the dea is a criminal organization, but that’s because I’ve studied the law and the subject extensively for years now. I hear ever evolving arguments for ending prohibition, but only the same antique fear mongering in favor of it, no matter how many times it’s debunked. But apparently I’m just a dependent dope smoker who has fried his brain. I am a medical marijuana patient in Colorado, so legalization doesn’t really affect me any more, but Cali you need to pass this. Colorado will follow suit, and I will be ready to invest in the business and watch my money grow on trees, literally. Go Cali Go!!

  30. Talk about the pot (pun definitely intended hehe) calling the kettle black. I would ask the DEA where they get THEIR constitutional authority to exist, or ask the Federal Government where they get the authority to outlaw (or even regulate) a substance, or tell supposedly free individuals what they cannot trade or ingest. And before you even respond with “the general welfare clause” I preemptively retort with the 9th amendment. 🙂 I think if everyone in America awoke one day and realized that governments only have what powers we give them, prohibition would cease to exist. Viva la (non-violent) revolucion!

  31. The Feds have to keep “pot” illegal cause if it was legal they would have to follow the Constitution. Why? you say, Well with marijuana illegal they can continue using it for T.P. and flushing it down the drain cause THE CONSTITUTION IS PRINTED ON “MARIJUANA”.

  32. The whole premise of this article is ridiculous!

    Lets not forget. When this country was founded, it was an Americans’ God-given right to consume ANY SUBSTANCE they wanted to. So bearing this in mind…

    WAS IT “UNCONSTITUTIONAL” TO “CONSTITUTE” THE ILLLEGALIZATION OF DRUGS IN THE FIRST PLACE?

    I mean seriously? Was the prohibition of alcohol “unconstitutional”?

    Lets get real, thats what amendments are for, aren’t they?

    The constitution and our government is supposed to be of the people, for the people and by the people.

    Those people are us, the everyday U.S. citizen! Every 5th grader probably knows that.

    You can smoke marijuana and STILL figure this out.

    Seriously!

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