Stanford Article on Why States need to Legalize, before The Federal

The Obama administration's public hesitation towards marijuana legalization is not only understandable but, considering the impact of the current economic legislation and programs the administration is endorsing, the most pragmatic and efficient route for the moment. Legalization and decriminalization advocates should focus efforts on state-wide legalization, not nation-wide. If states are challenged in lawsuits, than the Supreme Court will be forced to rule on whether legislation criminalizing marijuana should be struck down. This is preferable to the executive putting forward a proposal to legalize marijuana from the top down. When Obama tells the country that marijuana legalization is not the path he chooses for America, he means to say that the path must first be drawn by us.

Click to expand...

Herborizer said:

Read the whole thing here: http://progressive.stanford.edu/cgi-bin/article.php?article_id=339

Click to expand...

Herborizer said:

Bump

Click to expand...

trichrider said:

too bad it takes so much intestinal fortitude to believe any of this administrations rhetoric. I am about tolerence, but his continuing a war without reason (except for monetary) has jaded my perception.
President has power to create new posts, don't he have the power to dissolve same?

Click to expand...

mean mr.mustard said:

I would like to see the path drawn more than five feet wide.

Click to expand...

vta said:

<b><font size="4"><br />
Prop 19 and Constitutional Law for Dummies (and DEA Administrators)</font></b><br />
<br />
by Dan Riffle<br />
October 13, 2010<br />
<br />
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.<br />
<br />
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.<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
(Thanks to Karen O’Keefe, MPP’s director of state policies, for her assistance.)

Click to expand...

zen_trikester said:

Who knows what he is thinking, but this certainly is logical. I don't think there is any way he can outwardly endorse legalization. Same thing with Arnie... he is in a similar boat.

Jed

Click to expand...