Prop 19 and Constitutional Law for Dummies (and DEA Administrators)
There’s been a great deal of chatter recently about what the federal government can or will do if Californians wisely pass Proposition 19 in a few weeks (read up here and here for example). President Obama has several choices, but the one I want address here is the one recently urged by nine former DEA heads (pdf): for the feds to sue California in an attempt to declare the law null and void under the Supremacy Clause of the Constitution because it violates the Controlled Substances Act (CSA). I have yet to see a more than perfunctory analysis of such a scenario, so I thought I’d post a little introductory Constitutional Law lesson for our curious readers.
Article VI, Section 1, clause 2 of the Constitution 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; … Laws of any State to the Contrary notwithstanding.” In short, if state law conflicts with a constitutionally valid federal law, the state law is void. Now for starters, not even Supreme Court justices will agree on what the CSA can constitutionally prohibit. At least one justice will tell you a law prohibiting the intrastate cultivation and consumption of marijuana (at least for medical use) isn’t constitutional in the first place. But since a majority on the Court has already said Congress has authority to regulate even intrastate marijuana cultivation, does that mean Prop 19 would be void? Hardly.
The legal term for this analysis is “preemption” – does federal law preempt state law? There are two ways this can happen, express or implied. Express preemption is when federal law expressly says that it preempts state law (example) – the CSA does not. The second is implied preemption, and there are multiple versions of implied preemption. First is when federal laws and regulations are so comprehensive that they intend to “occupy the field” and leave no room for the states to regulate. The second is when there is a direct conflict between state and federal law, so that one law forbids something the other requires, or visa versa. Fortunately, section 903 of the CSA speaks directly to this question:
No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.
As you can see, the CSA itself says explicitly that it doesn’t “occupy the field.” That’s why in addition to federal laws on marijuana possession, every state in the country has its own laws, most of which differ from one another and federal law. So the question is whether there’s a “positive conflict” between federal law and Prop 19 — does the proposition require something that the CSA forbids? Late night punchlines notwithstanding, smoking marijuana will not be mandatory in California if Prop 19 passes. And Prop 19 doesn’t forbid anything the CSA requires.
There’s one final wrinkle though. A state law can conflict with federal law if it creates an obstacle to accomplishing the goals behind federal law. There’s some question as to whether this form of preemption even applies since one could argue the language of section 903 limits the analysis to direct, positive conflicts (and at least one court agrees with this interpretation). But let’s assume for argument’s sake that it does apply. Some will argue that a state making marijuana legal under its own laws frustrates Congress’ intent to control (by prohibiting) marijuana possession and use. Does that mean California has to keep marijuana illegal? No. A separate line of cases says the feds cannot “commandeer” state governments by telling them what they can and cannot do. In other words, the federal government cannot force California to keep marijuana illegal under state law or enforce federal law.
So what does all this mean? Without question, California can simply remove its criminal laws concerning the possession, cultivation, and use of marijuana, which Prop 19 would do. Then, cities and the state would be free to decide whether to tax and regulate marijuana distribution. Whether and how states or municipalities can enact regulations concerning sales and use of marijuana is another question, but the court decisions on similar issues are encouraging. Decisions in two California cases have found that federal law doesn’t prevent cities and counties from licensing medical marijuana dispensaries and that federal law doesn’t preempt the issuance of patients’ and caregivers’ ID cards. But suffice it to say, anyone claiming Prop 19 will just be void anyway because it conflicts with federal law is, at best, grossly oversimplifying matters. More likely, they’re just flat out wrong, and running scared now that it’s becoming clear what a failure marijuana prohibition has been.
The bottom line is this: California voters have a very real opportunity on November 2 to finally start unwinding marijuana prohibition, and nothing in the Constitution says otherwise.
(Thanks to Karen O’Keefe, MPP’s director of state policies, for her assistance.)
Tagged with: California and DEA and lawsuit and Obama and Prop 19 by the author
36 comments
The article title should say, “Prop 19 and Constitutional Law For Dummies, i.e DEA Administrators”. lol
Sweet! I wish this would be published on the front page of USA TODAY.
Will the DEA do it again? Stay tuned.
Thank you for the clarification.
People who are on the fence about this should know all the facts before they just take the DEA’s word for it.
Get this article viral, printed, whatever so as many people can read it as possible.
I sure hoper Prop 19 passes but even if it doesn’t … look how far things have come since, like, 2 or 3 years ago — Personally, I wish our fed & state gov’ts would have the gonads to ‘do the right thing’ & legislate cannabis intelligently BUT they’ve left us no choice; we the people have to jump in & do their job for them while they act the ass kicking & screaming …
come on cali this is it the real deal,we only need one state to get the ball rolling.
You know, I had faith in Obama, and I even voted for him, but with the DEA underminding his new law, the one which he stated that the Federal Government will no longer pursue or waste resources on dispensaries who are complying with thier state laws, clearly shows that Obama is either a coward, or a liar. If he was a man of his word, he would do some asskicking over at the DEA, yet these crooks are still doing what the hell they want. Just wait Mr. Obama, if you send your dogs after the people of California, well you’ll just kill any chance of a second term won’t you? WE put YOU in power, remember? I don’t think Im speaking out of bounds when I say “play nice”. People shouldn’t be afraid of thier government, the government should be afraid of their people.
If the people pass prop 19, do we need Arnold’s signature in order for it to become law?
We will see if the will of the voters means anything to Obama. It is a fact that the will of the voters means nothing to DEA. Obama should wait out the vote. If it passes he should instantly fire all the Bush scum he has hired in the DEA. I don’t trust Obama any more than I trusted Bush and I would not let Bush carry out my garbage without being watched.
Dan Riffle…you are my Hero!
Obama is not gonna go arrest half of his 2012 voters LOL
Ben lets just hope your correct mate. But we are talking about reality and politics so dont bet on on that mate.
X no man if it passes by voters on Nov. 2nd it is law
No such law Zy it was a campaign promise and later became “policy” but the DEA still has the cover of “its the law”. The law was never changed.
I agree asskicking woulf be in order
Lord_Zygon12 { 10.13.10 at 2:14 pm }
but with the DEA underminding his new law, the one which he stated that the Federal Government will no longer pursue or waste resources on dispensaries who are complying with thier state laws, clearly shows that Obama is either a coward, or a liar. If he was a man of his word, he would do some asskicking over at the DEA, yet these crooks are still doing what the hell they want.on12 { 10.13.10 at 2:14 pm }
All the former Drugs Czars are worried that the good law will pass on November 2nd. Those poor guys, what are they going to do?
The spirit of the late former president Nixon is going to look down on them with disappointment because Nixon had it planned so well at the time to get the Controlled Substance Act of 1970 passed quickly without any medical review, so that he could attack the dope smoking hippies with his own federal police force.
I hope prop 19 passes. I am wondering how the legalization angle is going to affect other upcoming races as the one for attorney general in Florida with Jim Lewis claiming he endorses Cannabis legalization.
If and when P19…goes into effect, I’m relocating from NY to Cali! Weather is far better and the bud is bitchin! THANK GOD for Arnold! For Terminating the Insanity! Wish you were our Gov. In NJ, MM Laws are ridiculously strict and basically a useless joke. Why Bother?? Only 10% THC is allowed!? WTF?? That is DIRT weed! Which will not help serious ailments let alone a bad day…Cali make room…we Yankees are comin to buy up your real estate and smoke your sweet kind bud!
Great article Dan. Thank you for addressing the details of these constitutional arguments and positions. This is the most informative analysis I’ve read on the finer points of federal vs state authority as it relates to prop 19.
Cannabis has been a part of America since it’s creation, it is the most versatile plant on planet Earth, cannabis can turn our economy around in so many industries, food, clothing, construction, paper products, fuel, etc.
Great article, very informative.
Scenario: prop 19 passes, Feds sue and get shot down. What legal implications would this have for the other 49 states? Say, if someone goes to federal court in another district, could they not use this as a precedent?
I hope it passes because we are so close at making history here but no matter what happens, prop 19 has already won! Next step, let’s make April 20th a national holiday;)!
Even if Prop. 19 fails the people in California and the other states where marijuana is accepted as medicine should sue their attorney generals or high state officials for not suing the federal gov’t over the fact that cannabis is not a schedule I substance as 14 states have recognized its medical use. Its time for the state officials to stand up for their people.
Thank you for explaining the issue ahead. I cast my vote already. Here we go………………….
Now can they take this to court and it be in litigation for years? Because that’s what they will do if they don’t get their way
The tension is palpable, isn’t it?
Wondering how many Californians publicly oppose Prop. 19… but will go into the voting booth on November 2nd and be honest under cover of privacy… Anonymity is a beautiful thing.
I want to shake the hand of every Prop. 19 opponent and kindly say “Whether or not you personally use cannabis, there isn’t an adult in this country who doesn’t know someone (or many ‘someones’) who is a regular, responsible user of this publicly-demonized plant. They come from every walk of life. In every demographic. They just keep it silent for fear of ruining their lives. They pay taxes. They spend time with their children. They choose to relax with a magic brownie instead of alcohol or pharmaceuticals. It cannot kill them. When you’re having cocktails later, give it some thought.”
I have faith in Californians. There are no cops in the voting booth. They’ll tell the truth.
Thank you, Marijuana Police Project, for all your hard work. I’m proud to be a member.
Grrr… Thank you, Marijuana POLICY Project. I know you aren’t police. Typo monsters.
Thank you for posting this. I have been in the mindset that federal law would override state law although I actively support state sovereignty and reform of marijuana laws. I have just realized that the federal government does not have a constitutional right to prohibit Prop 19! This is a turning point for me.
The supreme court did overstep constitutional’s boundaries in its attempt to protect the drug schedule in Gonzales vs. Raich (2005) by claiming intrastate activity in the commerce clause. That is nonsense. We are talking state law, not intrastate. Now understanding that this is their only defense of federal jurisdiction, I can write with confidence that they are very wrong! Yay.
Consider this: Why did alcohol prohibition require a constitutional amendment? Because a federal law would have exceeded the feds authority!
I am a 32y/o disabled male, I have a wife and child and are hoping that ny follows Cali’s direction and not make the poorly chosen moves that nj Has just done which makes their law a big joke !
If Prop 19 passes then it will solve the lack of revenue problem the State is having regardless of if marijuana is taxed. The tax base will increase tremendously from tax payers moving there get away from prohibitive states.
[...] There’s been a great deal of chatter recently about what the federal government can or will do if … (read up here and here for example). President Obama has several choices, but the one I want address here is the one recently urged by nine former DEA heads (pdf): for the feds to sue California in an attempt to declare the law null and void under the Supremacy Clause of the Constitution because it violates the Controlled Substances Act (CSA). I have yet to see a more than perfunctory analysis of such a scenario, so I thought I’d post a little introductory Constitutional Law lesson for our curious readers. [...]
[...] and Constitutional Law for Dummies (and DEA Administrators) by Dan Riffle October 13, 2010 There’s been a great deal of chatter recently about what the federal government can or will do if … (read up here and here for example). President Obama has several choices, but the one I want [...]
I am very proud of prop 19 I will pray all day and night to God the almighty to let this prop pass because God’s plants shouldn’t be crimilized by scumbag pololotitions in congress that are close minded… Peace Love Happiness Weed- yours truely J Wade
The Federal Prohibition on Marijuana has been a Farce from the beginning. I want to know who put the bug money in their arse, to make them Prohibit it in the first place. Personally I dont believe that congress had the authority to prohibit it from the use of the People. We the People rule this nation and any one who says We dont rule should be shot for TREASON and all the Lobbyists should get CRIMINAL charges for BRIBERY AND GRAFT .
everyone needs to forward this email to their friends! or at the very least, explain all of this to other prop 19 opponents and INFORM them that prop 19 is not as scary as some make it out to be.
VOTE YES ON PROP 19
There are three branches of the Federal Government and two of them will violate your constitutional rights on this issue while the third (Supreme Court) sits on the side line and won’t take the case on. That’s the true reality of what will probably happen. I hope prop 19 passes so the people will see what jackasses we have continued to re-elect over and over again. It seems like every one wants to complain about elected official and want to send a message to throw them out of office but continue to re-elect their representative in their district. The Democrats and Republicans both do this in the primaries and then we are stuck picking the worst of two evils general. Politics is all local.
[...] There’s been a great deal of chatter recently about what the federal government can or will do if … (read up here and here for example). President Obama has several choices, but the one I want address here is the one recently urged by nine former DEA heads (pdf): for the feds to sue California in an attempt to declare the law null and void under the Supremacy Clause of the Constitution because it violates the Controlled Substances Act (CSA). I have yet to see a more than perfunctory analysis of such a scenario, so I thought I’d post a little introductory Constitutional Law lesson for our curious readers. [...]
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