Drug War

10th Amendment Challenge to Medical Marijuana Crackdown


Last week Americans for Safe Access (ASA) filed a federal lawsuit arguing that the Justice Department's crackdown on medical marijuana in California violates the 10th Amendment. The complaint (PDF) alleges that the federal government "has instituted a policy to dismantle the medical marijuana laws of the State of California and coerce its municipalities to pass bans on medical marijuana dispensaries." That policy features raids on dispensaries, forfeiture and prosecution threats against their landlords, warnings that newspapers could be held criminally liable for carrying medical marijuana ads, and threats to local officials seeking to regulate dispensaries or growing operations. ASA cites letters in which U.S. attorneys warned officials in Chico and Eureka against proceeding with plans to authorize cultivation of medical marijuana; in response, both cities abandoned those plans. ASA says the "coordinated enforcement actions" announced by the the state's four U.S. attorneys on October 7 "have also derailed the regulatory efforts of local governments in Arcata, El Centro, Sacramento and other municipalities across the state."

In short, ASA argues, the Justice Department is not simply enforcing the federal ban on marijuana (as the Supreme Court has said it has the authority to do, even in states that allow medical use) but doing so in a way intended to undermine state and local policy choices. "While the government is entitled to enforce its criminal laws against marijuana…in an even-handed manner," the complaint says, "the Tenth Amendment forbids it from selectively employing such coercive tactics to commandeer the law-making functions of the State."

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  3. Amongst our weaponry are such diverse elements as fear, surprise, ruthless efficiency, an almost fanatical devotion to the President, and nice red uniforms?oh damn.

  4. The SCOTUS repealed the 10th amendment back in Wickard v. Filburn. If the 10th had any validity at all there would be no federal prohibition of marijuana.

    1. SCOTUS?? Hell, Lincoln and the 39th threw away the entire constitution back in 61-66. After all if the authority is delegated/granted as is any power of attorney, how can the grantee be the one to say whether or not power is allowed to be withdrawn?

      1. NEO-CONFEDERATE RACIST HOMOPHOBE! That’s what you are, ain’t ya?

        /Liberal shithead

  5. Team Blue can’t/won’t allow states to set their own medical marijuana policies (or drug policy in general) because to do so would erode their belief in federal superiority over the fifty “individual states” and their governments.

    Now, here’s Tony to tell us why states’ rights are a bad idea at ALL times. Take it away, Tony!

    1. I made poopy in my pants.

      1. Close enough.

        1. That actually made more sense than his usual posts…

        2. And now, Chris Matthews—

          1. I just had a poopy run up my leg!

    2. Tony still posts here?? I’ve seen some half-ass impersonations, but nothing really coming off as his stubborn “I refuse to change my position, no matter how many times my argument is destroyed” writing.

    3. Now, here’s Tony to tell us why states’ rights are a bad idea at ALL times.

      They are bad because they are used to promote segregation.

    4. Now, here’s Tony to tell us why states’ rights are a bad idea at ALL times.

      They are bad because they are used to promote segregation.

  6. I think we might have to resort to the second amendment if we are to get the government’s respect.

  7. I know for a fact that the 10th Amendment is racist. How do you defend against that charge, hmmm?

    1. Not only is it racist, it’s also sexist, homophobic, and RETHUGLICAN!

  8. This is absurd. If you concede that the federal government constitutionally has the power to regulate drugs, there is no serious argument that the federal government has any obligation to respect state or local drug policy. If you want other people to respect the constitution when it cuts against their policy preferences, you have be to willing do the same.

    1. What do you mean by “regulate”?

    2. What do you mean by FXKLM ?

    3. There is precedent:

      The Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment. In the modern era, the Court has only done so where the federal government compels the states to enforce federal statutes. In 1992, in New York v. United States, 505 U.S. 144 (1992), for only the second time in 55 years, the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment. The case challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for states to comply with statutory obligations to provide for the disposal of low-level radioactive waste. The first two incentives were monetary. The third, which was challenged in the case, obliged states to take title to any waste within their borders that was not disposed of prior to January 1, 1996, and made each state liable for all damages directly related to the waste. The Court, in a 6?3 decision, ruled that the imposition of that obligation on the states violated the Tenth Amendment. Justice Sandra Day O’Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (e.g. by attaching conditions to the receipt of federal funds, see South Dakota v. Dole), or through the commerce power (by directly pre-empting state law). However, Congress cannot directly compel states to enforce federal regulations.

      1. Commandeering is an awfully limited concept, and this doesn’t look much like commandeering. The federal government isn’t trying to compel states to actively enforce federal law; it’s just trying to stop states from doing things that are inconsistent with the federal ban on marijuana.

        I’m against federal drug laws, but I’m not going to pretend that any anti-drug action by the federal government is unconstitutional. The constitutional argument here is frivolous.

    4. What do you mean by “absurd”?

    5. ” there is no serious argument that the federal government has any obligation to respect state or local redacted policy.

    6. Why on earth would I concede that which is patently false? The federal gov’t does NOT have the Constitutional authority to regulate drugs. If you feel differntly, please show me the Constitutional citation granting that authority. You can’t do it. It doesn’t exist.

      That’s why alcohol prohibition was brought into being by an amendment; they knew they didn’t have the authority in the Constitution as it was written. But that was then, and this is now. Respect for the Constitution is at its nadir, and I see no cause for optimism as we slide further into collectivism.

      1. I believe he is referring to the suit, which does concede that the federal government has such authority, as opposed to taking that position himself.

      2. “”The federal gov’t does NOT have the Constitutional authority to regulate drugs. If you feel differntly, please show me the Constitutional citation granting that authority. You can’t do it. It doesn’t exist.'”

        As much as I agree. Try using that as a defense in court.

      3. The controlled substance act is written in a way so that it is constitutional. The government has the right to regulate anything that crosses state borders. Since it cannot be known if the drugs crossed the border, it is assumed that they did, and therefore can be regulated. The law is based on this assumption so it is constitutional.

        1. Sort of.

          Raich v Gonzalez was in specific reference to weed being grown at home for personal use, and they STILL upheld federal laws against it.

  9. I expect the usual logical contortions from the dress-wearing morons. Seriously, it’s not going to get overturned on 10th amendment grounds.

  10. Whatever District Court hears this case will dismiss it. The appeal will go to the Ninth Circuit – composed largely of masochist judges who enjoy being flogged by the Supreme Court. The Ninth will reverse and eagerly await their next unanimous beatdown, which the Supremes will unfailingly deliver.

    In the meantime, you can bet that the majority of ASA staff and supporters will mark the ballot for Obama and wonder why nothing ever changes. Which may indeed indicate that MJ does alter the brain such that cognitive dissonance is rendered harmless, however NIDA will reject that as scientifically inconclusive.

    In the end we will all die.

    Canada has an a case of MM that will change the politics of prescription.


  12. It isn’t a question of them suing to overturn the federal CSA. They aren’t trying to do that. So they can concede SCOTUS precedent in Raich v Gonzales. However, and this part is key, state courts in California have held repeatedly and with solid precedent that it’s medical mj laws are not preempted by federal law. The CSA itself contains a provision stating it was not meant to preempt drug laws in the various states already in existence at the time of passage of the controlled substances act in 1970. So the feds have not preempted state laws – this 10th amendment argument follows preemption doctrine by simply asserting the historical and legally correct fact that the State’s (per the 10th amend) have a general police power – affirmed by Sup Ct precedent- which the feds do not. Part of that analysis and case law is the affirmation that while the feds can punish state’s for not going along with the feds, the feds cannot commandeer the state’s and make them enforce federal law when the two are in conflict. (If the feds meant to preempt state law this analysis would be reversed) State’s and the fed govt are separate sovereign jurisdictions. State actors enforce state law and feds enforce federal law (with a few common exceptions.)

    This lawsuit will not be laughed out of court because the feds have clearly threatened city and county govt’s in California, as well as Governors of various state’s putting those state employees in the precarious position of being prevented from complying with valid state laws since if they do they will be facing federal prosecution. If they don’t, then they are not following state law. Damned if they do and damned if they don’t. This is what commandeering is. The threats are real, the letters are real, the consequences of those threats has been actual refusal of state actors to follow valid state law. In essence, forcing the state actors to shun their own state obligations in favor of the feds via coercion, duress and threats. Grab some popcorn. This could get interesting.

    1. good analysis! FXKLM, take notice.

  13. “has instituted a policy to dismantle the medical marijuana laws of the State of California and coerce its municipalities to pass bans on medical marijuana dispensaries.”

    And it is about time, marijuana is an illegal drug. California is going crazy and is broke because everyone there takes the pot. It isn’t healthy to take pot, there are many other drugs that are safer and available by prescription for all the things people use ‘medical’ pot for. Smoked pot is not approved by the FDA so it cannot be legally taken by anyone.

    1. Whoever’s behind this awful attempt at trolling should be ashamed.

  14. This goes nowhere. Mark the tape.

  15. An appeal to Prohibitionists:

    Most of us are aware by now that individuals who use illegal drugs are going to get high, no matter what, so why do you not prefer they acquire them in a store that checks ID and pays taxes? Gifting the market in narcotics to criminal cartels, ruthless terrorists and corrupt law enforcement officials is seriously compromising our future. If you even remotely believe that people will one day quit using any of these ‘at present illegal’ drugs, then you are exhibiting a degree of naivety parallel only with those poor wretches who voluntarily drank the poisoned Kool-Aid in Jonestown.

    Even if you cannot stand the thought of people using drugs, there is absolutely nothing you, or any government, can do to stop them. We have spent 40 years and over a trillion dollars on this dangerous farce, and practically everybody is now aware that Prohibition will not suddenly and miraculously start showing different results. So why do you wish to continue? Is it that you actually think you have something to lose If we start basing drug policy on science, logic and historical fact instead of empty rhetoric, hate and lies?

    Maybe you’re a cop, a prison guard or a politician who’s scared of losing employment, overtime-pay, kick-backs or those regular fat bribes? But what good will any of that do you once our society has followed Mexico over the dystopian abyss of dismembered bodies and marauding thugs brandishing gold-plated AK-47s & vats of acid? – Prohibition prevents Regulation. You can choose to help us stop this abomination.

    Protect our Children – Legalize, Regulate & Tax!

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