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.)

Ever since California Gov. Arnold Schwarzenegger signed a bill decriminalizing possession of up to one ounce of marijuana in the Golden State, opponents of Prop 19 have latched onto this development as their latest (bogus) talking point for why voters should reject the ballot measure on Nov. 2.

Their argument goes something like this: By making possession a civil infraction rather than a misdemeanor, people will no longer be arrested for marijuana possession in California; therefore, one of the main arguments in support of Prop 19 (that it’s wasteful and wrong to arrest adults for using something that’s safer than alcohol) is now moot. “This takes away the last reason why anyone would support Proposition 19,” writes Orange County sheriff Sandra Hutchens and former state Sen. Dick Ackerman in yesterday’s Orange County Register, to cite just one example.

Here’s what the “decriminalization is good enough” argument gets wrong:

• Police priorities: SB 1449, the decriminalization bill Schwarzenegger signed, doesn’t change the penalty for possessing marijuana (it already was and remains a $100 fine). It simply reclassifies possession as a civil infraction, rather than a misdemeanor that might require a court appearance. In no way does this mean that police will decide to stop wasting their time tracking down low-level marijuana offenders. Instead of 60,000+ marijuana arrests each year, California would simply have 60,000+ marijuana citations. Prop 19 would eliminate the need for either, and compel police to focus on true threats to public safety.
• Racial disparities: As Hanna Liebman Dershowitz points out in another O.C. Register op-ed countering Hutchens and Ackerman, as long as law enforcement can cite and harass people for possessing marijuana, “the shameless pattern of racially disproportionate enforcement that has been a hallmark of marijuana prohibition” will continue: “[P]olice could still target communities of color and may even be motivated to issue more citations than in the past, since they won't cost as much under SB 1449. Prop. 19, by contrast, will end futile practices of subjecting otherwise law-abiding consumers to detention, citation and collection of personal data, while wasting law enforcement effort and cost; SB 1449, by contrast, preserves these practices.”
• Still sold by criminals: Decriminalization takes a step in the right direction by removing criminal penalties for the average marijuana user, but it does nothing to authorize the sale of marijuana and remove it from the hands of criminals and drug cartels (as Prop 19 would). A report issued last week by the International Centre for Science in Drug Policy was emphatic on this point: “Without regulatory controls allowing for limited distribution – as employed for other psychoactive substances such as alcohol and tobacco – organized crime groups continue to exercise control over the cannabis market,” the report states.
• No tax revenue: On that same note, as long as the sale of marijuana remains outside the rule of law, California and its many localities will be unable to tax that sale and make any revenue from what’s been widely estimated to be the state’s largest cash crop. Decriminalization would contribute little toward collecting the $1.4 billion California’s Board of Equalization estimated the state could make by ending marijuana prohibition.
• No regulation: Finally, with marijuana decriminalized, and its sale illegal, local governments will be unable to establish regulations dictating how and where marijuana can be sold, who can sell it, and to whom. Under decriminalization, as well as prohibition, there is no system to license or zone vendors, or to require them to check customer IDs. Nor are there any regulations that apply to the product itself. Until marijuana is sold in a legal, regulated market (as it would be under Prop 19), it will still be controlled by drug dealers who offer no quality control, have no legal means to resolve disputes, and have no qualms about selling to people under 21.

The only way to eliminate these harms once and for all is to completely remove marijuana from the criminal justice system and bring its sale under the rule of law – just as Proposition 19 would do in California.

This weekend, Mario Vargas Llosa, winner of this year’s Nobel Prize for Literature, joined a growing number of Latin American leaders, academics, and artists in calling for an end to failed prohibition policies:

“[Legalization] is the only solution," said the author. "Drug trafficking can not be defeated by military means.”

It seems strange that such well-respected members of Latin American society are more and more willing to come out in favor of reform, while here in the States, most public officials will not come within a mile of advocating sensible policies. The research supporting these changes is available, and new studies suggesting the same are coming out all the time.

Could it be that this is because our policies cause much more bloodshed abroad than at home, despite America being the largest marijuana market on Earth?

There are just 21 days left until California voters decide whether their state becomes the first in the nation to make marijuana legal for all adults. And as the campaign enters its final stretch, support for ending marijuana prohibition in California continues to pour in from all kinds of sources.

Late last week, the League of United Latin American Citizens of California (LULAC) – part of the nation’s oldest Latino civil rights group – became the latest statewide organization to endorse Prop 19. "The current prohibition laws are not working for Latinos, nor for society as a whole," said Argentina Dávila-Luévano, California LULAC State Director, in a statement. "Far too many of our brothers and sisters are getting caught in the cross-fire of gang wars here in California and the cartel wars south of our border.  It's time to end prohibition, put violent, organized criminals out of business and bring marijuana under the control of the law."

LULAC’s endorsement came on the heels of major financial contributions to the Yes on 19 effort from Napster co-founder Sean Parker ($100,000), Facebook co-founder Dustin Moskovitz ($70,000), and David Bronner, the president of Dr. Bronner’s Magic Soap Company ($75,000). Though the Prop 19 campaign has not yet received the multimillion-dollar funds required to launch a full-scale TV ad campaign, these donations will be a tremendous boost to get-out-the-vote efforts among California’s electorate.

To assist in that effort, MPP is directing our supporters to an online tool set up by the Just Say Now campaign that enables users to reach out to likely supporters of marijuana initiatives in California, Oregon, Arizona, and South Dakota. If you have any free time, this is a great opportunity to contribute to the cause.

For a more detailed look at the battle lines being drawn over Prop 19 in California, check out some of Phil Smith’s reporting over at the Drug War Chronicle.

“The Colbert Report” dedicated about a third of last night’s episode to a lively discussion about Prop 19 in California – and it was chalk full of gems. After rallying his audibly excited audience with an overview of where the measure stands (“If Prop 19 were a human, it would be the most popular candidate in California”), host Stephen Colbert turned to two guests – Joseph Califano, of the Center on Addiction and Substance Abuse, and former New Mexico Governor Gary Johnson – to argue for and against making marijuana legal.

Califano opposes Prop 19. The entire debate over marijuana, he said, comes down to children:

“We have two legal drugs in America – alcohol and tobacco – and we’ve had no success keeping them out of the hands of kids. So if you legalize pot in California, all the kids will have access to it.”

Yeah, I know. My head hurt when I heard this, too. It’s amazing how twisted, bankrupt, and dishonest a statement that is. First off, Califano conveniently ignores the fact that young people already have access to marijuana – better access than they do to alcohol and tobacco, because marijuana dealers aren’t required to check IDs. (On the same day this segment aired, a report from the International Centre for Science and Drug Policy said that despite decades of increased arrests, seizures, and enforcement efforts, marijuana remains “universally available” to young people.) Secondly, there has been a great deal of progress in recent years in lowering the use rates for alcohol, and especially tobacco, among young people. That success has come about through sensible regulations and fact-based education campaigns – not the criminalization of tobacco users.

If Califano truly believes we need to “change the culture” surrounding marijuana the same way society changed the culture surrounding tobacco, he should embrace the regulation of marijuana, accompanied by science-based education. But doing so could negatively affect the bottom line for the substance abuse centers Califano represents – and who depend on court-ordered entries for arrested marijuana users for a great deal of their business.

Luckily, Gary Johnson was there to inject some honesty into the conversation.

“I just think that there should be truth in this. I don’t drink alcohol, I don’t smoke pot, but I’ve drank alcohol and I’ve smoked pot, and I can tell you there’s a big difference between the two, and that is that marijuana is a lot safer than alcohol. I think you can introduce truth into the equation; we can tell our kids the truth regarding this. When it comes to the truth and my kids, I love them. I’d rather see them smoke marijuana than alcohol – but I don’t want them caught. I don’t want them subject to the criminal justice system when it comes to marijuana.”

Bravo, governor. It takes courage to say something like that, and by doing so on national television, Gary Johnson is making it easier for other public figures to follow suit.

How’s that for changing the culture?

Watch the entire segment below:

New Jersey’s Department of Health and Senior Services yesterday released long-awaited regulations for the medical marijuana program first approved by its state legislature in January. They are among the most stringent medical marijuana guidelines in the nation.

To qualify, patients must have one of nine conditions, and their doctor must treat them for at least one year (or have seen them four times) and show that other treatments have been ineffective. Patients can apply for the program starting next month, but none are expected to receive their medicine until at least summer 2011.

The law originally called for six nonprofit dispensaries to grow and sell marijuana to patients, but these latest rules scale that back to two growers for the entire state – who will supply only four nonprofit dispensaries statewide. (By comparison, Washington, D.C.’s medical marijuana regulations, which are also quite narrow, propose up to five dispensaries for the entire District). And, in what is perhaps the first requirement of its kind in the nation, New Jersey will limit the potency of all medical marijuana to just 10 percent THC.

"Overall, it seems the goal of the regulations is to provide the least amount of relief to the fewest number of patients,’’ DPA’s Roseanne Scotti told local news outlets. "This wasn’t what was foreseen by advocates. We already had the strictest law in the country; I didn’t think it could get any worse."

Earlier this summer, a Phoenix marijuana deal went bad and resulted in the deaths of three people. Now, details have been released about the investigation that led up to the massacre. After being connected with a group of buyers through a confidential informant, police planned to sell 500 lbs. of marijuana (seized in previous investigations) for $250,000. During the deal, something went wrong and shooting started.

Many words come to mind when considering this horrible event, which ended with a detective dead and two more wounded, as well as the deaths of two suspects. Tragic. Wasteful. Heroic. For me, one word stands above the rest: avoidable.

The simple fact is that this sort of thing doesn’t happen in regulated industries. When was the last time you heard about a liquor store owner gunning down the delivery driver to avoid paying the bill? As seen during alcohol prohibition – most notably in Chicago during the reign of Al Capone – illegal markets that have no legal means to resolve disputes inevitably produce violence. Once the product is brought into a regulated market, the violence disappears almost overnight.

In a society that taxes and regulates marijuana like alcohol, few of our law enforcement officers will end up murdered over a couple of bales of plant matter.

A new report released today by the International Centre for Science in Drug Policy uses figures provided by the U.S. government to highlight the unquestionable failure of America’s marijuana prohibition to accomplish a single one of its goals. Reviewing 20 years of data, the report shows that despite drastically increased spending on enforcement efforts, including near record-level arrests and seizures, marijuana has become cheaper, more potent, and more available than ever. It concludes, “the legalization of cannabis, combined with the implementation of strict regulatory tools could help reduce cannabis-related harms, as research has demonstrated is successful in tobacco and alcohol control, when strictly enforced.”

Among the report’s findings:

• The annual overall budget for the White House Office of National Drug Control Policy increased by more than 600%; growing from approximately $1.5 billion in 1981 to more than $18 billion in 2002 (the last year reliable figures were available).
• Between 1990 and 2006, marijuana-related arrests increased by 150%, while marijuana seizures increased by more than 400%.
• The estimated retail cost of marijuana decreased from $37 per gram in 1990 to $15 per gram in 2007.
• Marijuana has remained almost “universally available” to American youth during the last 30 years of prohibition.

The report is very clear in its endorsement of a regulated marijuana market over simply a decriminalized model, in which criminal penalties against users are removed, but the sale of marijuana would remain illegal, and therefore, in the hands of criminals. “Without regulatory controls allowing for limited distribution – as employed for other psychoactive substances such as alcohol and tobacco – organized crime groups continue to exercise control over the cannabis market,” the report states.

It goes on to explain that regulations could include “age restrictions, restricting driving or operating machinery while intoxicated, limiting hours of sale and outlet density, restricting bulk sales and limiting potency of legal cannabis.”

Boiled down, this is the same message that MPP and others have advocated for years: marijuana regulation is a far superior policy alternative to the chaotic and ineffective nature of prohibition.

On November 2, voters in California will have a historic opportunity to choose that superior alternative by voting yes on Prop 19.

You can read the entire ICSDP report here, or a summarized two-page fact sheet here. I highly recommend it.

Every day there are more and more stories in mainstream media outlets about Prop 19 and the growing national movement to end marijuana prohibition. That alone is a promising development. But what’s even more telling has been the way the tone of the coverage is starting to shift from asking, “Should marijuana be legal?” to, “Is marijuana going to be legal? And if so, when, where, and how?”

Check out just three examples from today:

Wall Street Journal: “Democrats Look to Cultivate Pot Vote in 2012”

Democratic strategists are studying a California marijuana-legalization initiative to see if similar ballot measures could energize young, liberal voters in swing states for the 2012 presidential election.

NPR: “Has the US Reached a Tipping Point on Pot?”

California's Proposition 19, if approved by voters, will legalize possession of small amounts of marijuana legal for the first time in the United States. Many other states have relaxed their marijuana laws. Is this the tipping point when marijuana follows alcohol and gambling from criminal offense to harmless pastime -- and source of new tax revenue?

New York Times: “Will California Show the Way on Marijuana?”

Like it or not, the tens of millions of people in California serve as a laboratory for new legislation, and their state sets a legal example that the rest of the states might follow. So, even if you do not live in California, pay attention to Proposition 19: maybe someday marijuana may come to a store near you.

In July, I wrote about the growing belief among political strategists that candidates can benefit from supporting marijuana reform. Just last week, the Oregon Democratic Party endorsed Measure 74, the ballot question that would add state-licensed dispensaries to that state’s medical marijuana law.

Remember who's helping to fund the campaign against Prop 19.