It's ALIVE!! New Medical Marijuana 10th Amendment Claim Moves Forward:
Just when you thought all constitutional challenges to the enforcement of the Controlled Substances Act were six feet under, a new theory has just survived a motion to dismiss in the Northern District of California. The case is Santa Cruz v. Gonzales, Case Number C 03-01802 JF. (If someone provides me a link to the opinion, I will include it here.)
Previously the district judge had dismissed, with leave to amend, the challenger's Tenth Amendment claim on the ground they had not alleged that federal enforcement required the states to alter their medical cannabis statutes or enforcement regime. But this week it accepted the theory of the plaintiff's amended complaint as potentially stating a cause of action:
Previously the district judge had dismissed, with leave to amend, the challenger's Tenth Amendment claim on the ground they had not alleged that federal enforcement required the states to alter their medical cannabis statutes or enforcement regime. But this week it accepted the theory of the plaintiff's amended complaint as potentially stating a cause of action:
In their [Second Amended Complaint], Plaintiffs allege that federal officials have devised a strategic plan of targeted enforcement that has had the intended effect of “rendering California’s medical marijuana laws impossible to implement and thereby forcing California and its political subdivisions to recriminalize medial marijuana.” Specifically, Plaintiffs allege that Defendants have: (1) threatened to punish California physicians who recommend marijuana; (2) threatened government officials who issue medical marijuana identification cards; (3) interfered with municipal zoning plans; and (4) targeted for arrest and prosecution those providers of medical marijuana who cooperate most closely with municipalities. Plaintiffs assert that these actions violate the Tenth Amendment by making it impossible for the state to distinguish between authorized and recreational users of marijuana, a distinction that is necessary for the proper enforcement of California law. [citations to amended complaint omitted]To my knowledge this particular Tenth Amendment theory has not been previously adjudicated, and it is distinct from the federal government simply enforcing its own laws, while leaving the states to enforce theirs. Here is how the trial judge evaluates this claim:
In his concurring opinion in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), Chief Judge Kozinski opined that Defendants’ manner of enforcing the CSA had commandeered California’s legislative process, at least as to the legal rights and obligations of physicians:At this point ANY constitutional victory on behalf of federalism OR medical cannabis--even one as small as surviving a motion to dismiss--is a BIG victory. Should this claim of deliberate obstruction of state law making and enforcement survive, some of the more conservative Justices may find it more appealing than a Commerce Clause challenge, precisely because it's practical impact would be confined. And, at best, the Supreme Court has preferred symbolic rulings favoring federalism over anything more radical in its implications. This sort of theory may just be narrow and symbolic enough to be accepted.The state relies on the recommendation of a state-licensed physician to define the line between legal and illegal marijuana use. The federal government’s policy deliberately undermines the state by incapacitating the mechanism the state has chosen for separating what is legal from what is illegal under state law. Normally, of course, this would not be a problem, because where state and federal law collide, federal law wins. . . .While this authority is not controlling, it is the only authority that addresses the precise issue at hand, and it suggests that at least at the pleading stage Plaintiffs’ claim may be cognizable. If Plaintiffs can prove that Defendants are enforcing the CSA in the manner alleged, a question as to which the Court expresses no opinion, they may be able to show that Defendants deliberately are seeking to frustrate the state’s ability to determine whether an individual’s use of marijuana is permissible under California law. A working system of recommendations, identification cards and medicinal providers is essential to the administration of California’s medical marijuana law. The effect of a concerted effort to disrupt that system at least arguably would be to require state officials to enforce the terms of the CSA. Because the Court must assume that Plaintiffs’ allegations are true and resolve any doubt in Plaintiffs’ favor for the purposes of the instant motion, and because Plaintiffs have alleged their claim with considerably greater factual specificity than they did in their First Amended Complaint, the motion to dismiss will be denied as to Plaintiffs’ third claim. [emphasis added]
. . . Applied to our situation, this means that, much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so. Yet the effect of the federal government’s policy is precisely that: By precluding doctors, on pain of losing their DEA registration, from making a recommendation that would legalize the patients’ conduct under state law, the federal policy makes it impossible for the state to exempt the use of medical marijuana from the operation of its drug laws. In effect, the federal government is forcing the state to keep medical marijuana illegal. But preventing the state from repealing an existing law is no different from forcing it to pass a new one; in either case the state is being forced to regulate conduct that it prefers unregulated. Id. at 645-46 (Kozinski, concurring).
Here, there's no interstate commerce so really there's no hook for the feds to get involved. I'm with Justice Thomas on this.
Interesting thought: California medical marijuana patient feels well enough to travel, takes a trip to Las Vegas. Takes his marijuana along (just like a diabetic would take his insulin, to pick a mainstream example) to continue treatment as recommended.
Now it's interstate, but hardly unreasonable on anyone's part. Do the feds have a hook?
Personally I wish the whole country would have a sensible drug policy.
Of course some would use the reasoning that if it makes you healthy enough to travel between the states, that alone would be interstate commerce -- een if you didn't travel.
Bingo. This argument might prevail in court, but wouldn't Congress just re-write the law to condition federal police grants on writing state marijuana laws a certain way?
Roger Schlafly writes:For sale, no reasonable offer refused.
James Madison:
"Now, may not laws be considered necessary and proper by Congress, for it is for them to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary nor proper; as well as improper laws could be enacted by the State Legislatures, for fulfilling the more extended objects of those Governments.
...
The General Government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the Legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the State Governments had in view? If there was reason for restraining the State Governments from exercising this power, there is like reason for restraining the Federal Government."
Debates on the Bill of Rights, House of Representatives,
8 June , 21 July , 13 , 18-19 Aug. 1789; Annals 1:424-50, 661-65, 707-17, 757-59, 766.
The California "medical" marijuana argument was a subterfuge to legalize weed sales in Los Angeles and San Francisco.
This is a familiar trope among prohibitionists but I've never seen any evidence that the assertion is true. Cite?
But perhaps that might present SCOTUS with an opportunity to revisit South Dakota v. Dole (just in time to fit with the push to lower the drinking age!). Will Scalia finally atone for his 10th Amendment sins?
I don't think this argument is any more valid than Mississipi's would have been. When federal and state policies differ in a way where the feds make illegal an activity that the state wants to foster and encourage, the feds can't interfere with state officials and tell them what to do, but they have every right to hassle and punish people the state wishes to cooperate with. Our history is full cases where this has occurred, and the civil rights examples simply happen to be particularly notable and memorable ones.
Obviously, if one wants to extend the 10th amendment to say that medical care is a tradional state activity and Congress can't interfere with unenumerated traditional state powers in the area, this would a different argument (although not one likely to fly.) But the argument that routine enforcement of federal law violates the 10th Amendment whenever states would rather do something different turns federal supremacy on its head in a way that even I, who'se been arguing a fairly aggressive states-rights stance here over the years, would find puzzling. In my view, the only question is whether the Feds have the power to enact the law involved. If they do, they certainly have the power to enforce it, and the fact that the state wishes to regulate or foster activity the feds want to forbid, ands to honor the peple the feds want to punish, simply is of no moment.
"I'm probably missing something here, but how does this 'violation of federalism' differ from federal civil rights laws interfering with states' enforcement of Jim Crow laws?"
Exactly right, Porlock. It doesn't. Or, to put it another way: 'federalism' does not mean that states get to override federal law, when that law is Constitutional. We have, in California, a situation where there is a federal law but not a state law against certain (dangerous and addictive) drugs. If a counterfeiter, for instance, or an income tax evader, tried to avoid *federal* prosecution because counterfeiting or evading the national income tax isn't a *state* crime, he'd be laughed out of court (and into a prison cell). 'Federalism' is being used as a stalking horse by people who believe that liberty means license to justify wanton defiance of federal law.
If the legislature won't do, it shouldn't be done. Constitution? We don't need no stinkin' Constitution!
Actually, the "hippies" convinced people in California to vote for legalization. That's the federalism issue raised by persecution of people who have complied with resulting laws.
Was there ever a time where bigamy was a Federal offence?
Ahem....
"Proposition 215, also known as the Compassionate Use Act of 1996, was a proposition in the state of California on the November 5, 1996 ballot. It passed with 5,382,915 (55.6%) votes in favor and 4,301,960 (44.4%) against."
http://en.wikipedia.org/wiki/Proposition_215
[sigh] I love my state. :)
Not as such, but Congress conditioned Utah's acceptance into the union on anti-polygamy provisions in their state constitution.
No doubt that it is really easy to get a medical recommendation and that lots of people are using the law as an excuse to simply get high.
But that's not the same as saying that it was a subterfuge. It was also true that there were plenty of cancer and glaucoma patients who have been victimized because the medication of their choice has been outlawed by the federal government, apparently on the theory that it is immoral to take a medication that ALSO gives you a pleasurable feeling.
And the reason they wrote the recommendation rules so loosely was BECAUSE of federal interference; if you required actual prescriptions, the US government might try to pull California doctors' licenses to prescribe narcotics, which could put them out of business. So if people want to tighten up California's laws to apply only to actual medical uses, the first step would be to pass a law PROHIBITING federal interference with the lawful possession of medical marijuana under state law, and immunizing doctors who write actual prescriptions for marijuana. Then it would become much easier to enforce a prescription requirement.
---U.Va. 3L: "This argument might prevail in court, but wouldn't Congress just re-write the law"
Never get in the way of a giant ball of money rolling downhill.
There is so much money involved and so many government employees earning a paycheck thanks to the the drug war, that it can never end.
If necessary, any inconvenient court discissions will be ignored.
Umm, that link refers to Colorado. Not the same state really... :) Hippies along with millions of others in California got convinced.
I have thought for a long time that the next step is for the State of California to grow and distribute medical marijuana itself. If they did that, I would think the state would have an extremely strong New York v. United States / Prinz-type claim that the controlled substances laws have no application because of state sovereignty.
That might work out legally, but given the poor qualitative nature of bureaucratic production (of most anything) is likely to practically fail. Canada tried growing marijuana on government farms a few years back, and the result by all accounts (sorry I don't have a link) was "ditchweed" so poor in quality that nobody could tolerate consuming it.
I would be interested in knowing what legal theory supports such differentiation. i.e. when did we lose the right to self medicate?
What is so hard to understand. Oh BTW what does CB stand for? cannabinoid. Which tell us that most people are manufacturing drugs without a license.
There is only one way out of this: arrest every one at birth and keep them in jail for life.
I don't see the "more or less" distinction here. Enforcing Federal law is the very same act as disrupting state law. Is it just a matter of subjective intent or are you attempting to make an objective distinction?