I was wrong. After carefully studying the law surrounding California's Proposition 19 the "Regulate, Control and Tax Marijuana Act," I no longer think it is unconstitutional. I, along with many others, suspected that the Act would be void ab initio under Article VI, Section I of the Constitution, which says:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.The so-called supremacy clause means that, when in conflict, federal law wins. If the USA required rabbits to be kept in all-brown boxes and state law required instead that they be kept in all-blue boxes, the blue box law would be illegal and void. It is impossible to keep a rabbit in a box that is both solid blue and solid brown.
When a state law conflicts with a federal law it is for one of four reasons: express, conflict, obstacle, and field preemption.
First, express preemption arises when Congress 'define[s] explicitly the extent to which its enactments pre-empt state law. In other words, when the federal law actually says, in the law, that it overrides a specific state law or two, that is express pre-emption. Game over. Second, conflict preemption will be found when simultaneous compliance with both state and federal directives is impossible. This is when a person cannot obey state law without violating federal law, but the state law has to require a given action. Third, obstacle preemption arises when ' "under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." ' Finally, field preemption, 'Congress' intent to pre-empt all state law in a particular area,' applies 'where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress "left no room" for supplementary state regulation. In other words, a state law in this area is void because the federal law completely covers the subject.
The federal law that Prop 19 is said to conflict with in violation of the supremacy clause is the Controlled Substances Act (CSA) making marijuana possession illegal in any amount. In the CSA itself, 21 U.S.C. sec 903, it says:
"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." (Italics added.)
Congress thus knocked out all types of preemption except conflict preemption, which is the one requiring a 'positive conflict' such that the two laws 'cannot consistently stand together.' At least one fairly important court agrees with me:
Because Congress provided that the CSA preempted only laws positively conflicting with the CSA so that the two sets of laws could not consistently stand together, and omitted any reference to an intent to preempt laws posing an obstacle to the CSA, we interpret title 21 United States Code section 903 as preempting only those state laws that positively conflict with the CSA so that simultaneous compliance with both sets of laws is impossible. San Diego County v San Diego NORML, 165 Cal. App. 4th 798 (1998), cert denied 5-09.That is the critical point: the CSA specifically eliminates the field and obstacle preemption arguments that would otherwise doom Prop 19. Prop 19 certainly infringes on the field of drug regulation and most certainly poses an obstacle to the idea of federal marijuana prohibition.
But the CSA itself takes those two arguments off the table, and there's nothing the Supreme Court or any other court can do to get around that.
Since Prop 19 only exempts marijuana users from state criminal punishment, it's in the clear.
Proposition 215 was the original medical marijuana law from the 90s passed in California. It was attacked on preemption grounds. The court in that case said it did not violate the supremacy clause:
Proposition 215 does not conflict with federal law because on its face it does not purport to make legal any conduct prohibited by federal law; it merely exempts certain conduct by certain persons from the California drug laws.I have read Prop 19 carefully, and nowhere does it "purport to make legal any conduct prohibited by federal law." It carefully repeals and modifies only state laws. Nothing in Prop 19 requires any Californian to violate the CSA or any other federal law.
Some people think the commerce clause will also save Prop 19; I disagree. That argument basically says that the federal government does not have the right to regulate drug possession, cultivation or distribution that goes on entirely within one state because it doesn't affect interstate commerce. Under current commerce clause jurisprudence the argument will fail. For many years, the Supreme Court has been expanding federal regulatory power under the commerce clause, not reining it in. In United States v. Cannabis Cultivators Club, 5 F.Supp.2d 1086 (N.D.Cal. 1998), the court said:
To hold that the Controlled Substances Act is unconstitutional as applied here would mean that in every action in which a plaintiff seeks to prove a defendant violated federal law, an element of every case-in-chief would be that the defendant's specific conduct at issue, based on facts proved at an evidentiary hearing or trial, substantially affected interstate commerce. No case so holds and the Court declines to do so for the first time here
In other words, "if you think we're gonna throw out all federal drug laws for violating the commerce clause, you're fucking crazy!" Not to mention that in Raich v. Ashcroft a woman growing her own marijuana for medical purposes in CA, when no money traded hands nor did the marijuana ever cross state lines, was ruled to have impacted interstate commerce sufficiently to provide legal jurisdiction for the federal government to make that act illegal.
So - what's gonna happen? Prop 19 is going to pass. The Justice Department is going to leave it alone. The DEA will continue to operate in California against large scale traffickers and grow ops on public land. And . . . if I'm right about our President, he will make an announcement that the feds will not concern themselves with Californians possessing pot in compliance with state law. Possession of personal use amounts will not be legal under federal law in California, but the feds won't be enforcing that law, so, same difference.
Then, once everyone else in the US sees that ending prohibition of marijuana possession in Cali was a good idea, other states will join in and then US law will change.