Prop 19 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 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.)

Campaign Refresher: Jack’s Liquor Problem

The one thing that has been brought to the forefront of Kentucky politics lately is the issue of hemp and the possibility of the "gateway drug" marijuana. There are many variations of politicians. There are the ones who see growing hemp as the free market principles working and that in the history of Kentucky the growth of hemp was fairly normal. Hemp has many uses that would be beneficial for the market place and helpful for the 65% of Kentucky farmers not receiving government payouts:

As you can see by the graphic we as Kentuckians can grow one crop that could do so much for our community (by jobs and product) and our country. Our own government has reportedly been using hemp from Canada and in some reports has been known to grow their own. But, the growth of hemp is a ‘tip of the iceberg’ fight.
Then there is the Prohibitionist politicians who want the evils of Gambling, Alcohol and drugs as far from them as possible. As if the War on Drugs (which we have spent 30 trillion since the 1980’s on) hasn’t proved a waste of tax payers money and has ruined the lives of many and throwing our nations poor in prison for very minor infractions.
Then there is our old friends the Pander Bears. The ones who logically should see the light but, prefer winning elections instead of being honest. The real question is WHY as a state known for growing some of the best marijuana against the growth for personal consumption?
But still, there is a 4th politician. The hypocrite. Recently, when asked about hemp farming by the Marion County Line reporter Jim Higdon, Jack Conway responded that allowing farmers to grow hemp was basically legalizing a “gateway drug.” No mention of the commerce clause from Mr. Conway or if banning hemp at the federal level is even constitutional, in his opinion, without an amendment.
This is a point the Capitalist Banner brought up in a blog I think needs to be examined. First off, most teens or people who have used marijuana do not start out with marijuana. The thought it’s the "gateway drug" is almost laughable. The fact Mr. Higdon was referring to Hemp aside (which is totally different) I’d like to ask Jack Conway, "What person do you know in your life who has used marijuana that did not smoke tobacco or drink alcohol before marijuana?" I’d venture to say near 9 out of 10.
This brings us to the point, that the term "gateway drug" then must be applied to alcohol or tobacco. Jack Conway’s a defender of tobacco and alcohol and rightfully so. He’s not supporting tobacco and bourbon because Kentucky make a good amount of money in being the home of many fine distilleries and some great tobacco farms. He supports bourbon, because alcohol is how Jack’s wife makes her money and pads close to half of Jack’s family income. How hypocritical is it for a man, who makes money off a liquid drug that has only one purpose to get you drunk, to turns around and put the label of "gateway drug" on a plant that can do so much more than get you high? While all this time his own wife is part of the people who produce alcohol as part of the Brown-Foreman Public relations team.
So, Jack…. do you believe your wife should be out of a job and we should close down all the distilleries? Or do you want to retract your statement about "gateway drug?" Because it really is shameful to use a line like "Gateway drug" when your wife works for a company that gets more people started down the road of addiction. I think Judge Jim Gray should do a lecture for Jack Conway and every politician in power:
**Originally posted on August 3rd, 2010**

Posted by Free Man In Kentucky at 8:00 AM

In Kentucky’s Senate race, ties to Mitch McConnell could be helpful or harmful

By Amy Gardner

Washington Post Staff Writer
Thursday, May 13, 2010



MONTICELLO, KY. — When Senate candidate Rand Paul told a lunchtime crowd at Shearer’s Buffet that "we have to do things differently" in Washington and "bring ’em home and send some different Republicans," it wasn’t hard to make the jump from this rural area near the Tennessee border to the top Republican in the state, if not the country: Senate Minority Leader Mitch McConnell.

Paul, a "tea party" activist and the son of Rep. Ron Paul (R-Tex.), a former presidential candidate, is not the first person this year to blame leaders in Washington for the nation’s ills. What’s remarkable about this primary campaign is that McConnell isn’t even on the ballot. Paul is running against Secretary of State Trey Grayson.

McConnell, 68, is widely credited with building the Kentucky Republican Party — the GOP headquarters in Frankfort is even named for him. Just a few months ago, it seemed inconceivable that he couldn’t push Grayson, his handpicked candidate, to victory Tuesday. Now, not only is Grayson in trouble — he trails in the polls by double digits — but his association with McConnell isn’t helping.

"They go, and they stay too long, they lose their way, and as they do they become corrupted by the system," Paul, 47, an eye surgeon making his first run for office, told a group of about 30 supporters over breakfast at Lee’s Famous Recipe Chicken in the tiny town of Albany. "The longer you’re there, the more you succumb to the power, the more you think you are somehow different or more important than the rest."

McConnell was unavailable for an interview, and his spokesman declined to comment for this article. But Grayson rejected the idea that the race has become a referendum on McConnell or Grayson’s connection to him. "He’s actually got more D.C. ties than me," Grayson said of Paul.

He’s also sure that McConnell is an asset, despite his five terms in office. They’re both so sure, in fact, that the senator, after months of behind-the-scenes support, jumped in last week with a public endorsement.

(Six Republican candidates are on the ballot, but polls show the race is between Paul and Grayson. Similarly, five Democrats are seeking their party’s nomination the same day, but surveys find that the contest is primarily between Lt. Gov. Daniel Mongiardo and Attorney General Jack Conway.)

Grayson has numerous connections to McConnell. McConnell urged the younger Republican, a lawyer from the Cincinnati suburbs, to run even before outgoing Sen. Jim Bunning (R) decided last year to retire. (Bunning is supporting Paul.) They share a pollster and a media consultant, and Grayson’s father, a bank president, is a longtime McConnell supporter. The view among some who back Paul is that Grayson would be little more than a yes man for McConnell.

"We’re sick of McConnell," said Winna Ramsey, 50, a radiology technician from Monticello who came to hear Paul speak at Shearer’s. "Rand Paul is not a career politician. He’s got the people’s interests in mind, not the special interests. He’s a breath of fresh air from what I can see."

Grayson, 38, bristles at such characterizations and is exasperated that his record of fiscal and social conservatism is going unnoticed. Grayson opposed the $700 billion Troubled Assets Relief Program legislation in 2008 that bailed out U.S. financial institutions; as secretary of state he slashed spending in his office; he served on the board of a pregnancy crisis center that counsels against abortion. He also notes that much of Paul’s momentum is the result of out-of-state donations from his father’s supporters.

Still, Grayson struggles to connect with potential backers. At the headquarters of a hardwood flooring company in London, Ky., one of the owners lamented the state of the economy, and Grayson responded: "Oh, it’s terrible." Local circuit court clerk Roger L. Schott, who was escorting Grayson, tried to prod the candidate. "What are we going to do to change that, Trey?" Afterward, the businessman, Jim Begley, said Paul seemed to have more answers.

Paul’s campaign stops are feisty affairs at which supporters hoot and cheer as he weaves his personal biography and a list of grievances with Washington into a populist call to arms. The founder of the antitax organization Kentucky Taxpayers United, Paul rails against what he describes as Washington’s unsustainable spending, crippling debt, career politicians with no term limits, a "socialist" health-care law and a failure to close the nation’s borders to illegal immigrants.

Paul has become a national hero of the tea party movement by opposing new taxes and deficit spending and supporting such ideas as the abolition of the Department of Education and amending the Constitution so that children born in the United States to illegal immigrants would no longer become citizens automatically. A victory for him on Tuesday would further energize a movement already pumped up by the defeat of Sen. Robert F. Bennett in Utah’s Republican primary last weekend.

"Greece is defaulting right now on their debt," he told the breakfast group. "One of the next things you’ll see is chaos on the streets. You’ll see violence. . . . And it can happen even in America if we’re not careful."

But Paul’s libertarian streak could lead to breaks with conservatives on some issues. He opposed the war in Iraq. He has spoken in favor of legalizing marijuana for medical purposes. A pro-Grayson advocacy group, trying to portray Paul as out of step with mainstream Republicans, is running a television ad featuring a chiming cuckoo clock.

McConnell’s advisers say the senator remains popular among Republican voters, and Paul typically doesn’t mention him by name. But his crowds are all too glad to make the connection. And the candidate got as close as ever to a direct critique of McConnell during a debate on Monday, when he and Grayson were asked whether they would vote for McConnell to keep his post as Republican leader. While Grayson answered that he would vote "proudly" for McConnell, Paul said, "I’d have to know who the opponent is and make a decision at that time."