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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:
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:
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. . . .
. . . 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).
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]
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.
Bong Hits 4 Jesus:
If California did not require doctor recommendations and officially issued identification cards in order for a cannabis use to qualify as medical, this issue would be moot.
8.22.2008 4:08pm
Joe Kowalski (mail):
Really, as a matter of policy, the enforcement of the federal laws against people that are lawfully using per the state laws is a waste of tax dollars. Don't the feds have terrorists and real druggies to catch?
8.22.2008 4:15pm
Dilan Esper (mail) (www):
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.
8.22.2008 4:26pm
PersonFromPorlock:
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?
8.22.2008 4:28pm
rbj:
PersonFromPorlock. 14th Amendment, granting the same rights to all.

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.
8.22.2008 4:35pm
JB:
rbj,
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?
8.22.2008 4:39pm
MartyA:
The California "medical" marijuana argument was a subterfuge to legalize weed sales in Los Angeles and San Francisco. In California, doctors' certificates (real or forged) prescribing marijuana for medical purposes are as easy to get as work/SSN documents are for illegal aliens.
8.22.2008 4:44pm
Roger Schlafly (www):
Really, as a matter of policy, the enforcement of the federal laws against people that are lawfully using per the state laws is a waste of tax dollars.
The feds do not prosecute marijuana users. Only dealers.
8.22.2008 4:45pm
rbj:
jb, Yup. Crossing state lines brings the feds in, (for transporting something across state lines) even if both CA &NV have it legalized (which I think they do). In that vein, I think that was the reasoning behind the old Mann Act (though the Lawrence decision might may that law unconstitutional today)

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.
8.22.2008 4:46pm
U.Va. 3L:
And, at best, the Supreme Court has preferred symbolic rulings favoring federalism over anything more radical in its implications.

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?
8.22.2008 4:49pm
Fub:
PersonFromPorlock wrote at 8.22.2008 3:28pm:
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?
One difference is that state Jim Crow laws conflict with federal constitutional rights, while the CA statutes conflict only with federal statutes.
8.22.2008 4:50pm
Malvolio:
If this argument fails, as I think it will, I wonder if the Feds will take the hint and start interfering with other state laws by pressuring officials involved with implementing them. Say they forbid sales by FFL dealers to any local law-enforcement officer whose jurisdiction has immigrant-sanctuary laws. That would be equally Constitutional.

Roger Schlafly writes:
The feds do not prosecute marijuana users. Only dealers.
For sale, no reasonable offer refused.
8.22.2008 4:56pm
jvarisco (mail) (www):
Can't the hippies give up already? If you want drugs to be legal, try to convince the majority of voters. Wait, they already tried that and failed miserably.
8.22.2008 5:13pm
Jon Roland (mail) (www):
Tenth Amendment arguments fail when they collide with the precedents broadly interpreting the Necessary and Proper Clause and the 14th Amendment Implementation Clause. One can't win an argument that a power hasn't been delegated with courts that hold that "necessary and proper" means anything that might be thought convenient to achieve any purpose Congress might have, and not just for "carrying into execution" the express powers, which was only meant to authorize making a limited kind of effort, not to do whatever it takes to get a result.

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.
8.22.2008 5:19pm
EH (mail):
MartyA:
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?
8.22.2008 5:22pm
wooga:

And, at best, the Supreme Court has preferred symbolic rulings favoring federalism over anything more radical in its implications.

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?


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?
8.22.2008 5:27pm
ReaderY:
I disagreed with Raich v. Ashcroft, but I don't think this particular argument is valid. One could equally well argue that Federal civil rights laws interfered with Missipi's State Soveriegnty organization and the state's ability to enforce its trespassing and similar laws because federal agents selectively targetted restaurant owners who came to the state for aid in getting colored people off their premises, thus effectively interfering with the state's ability to enforce its policies. With business owners intimidated from cooperating, state policies were effectively countermanded. (I'm specifically not referring to de jure segregation, I'm referring to state policies of cooperating with private landowners not considered illegal under the constitution and interfered with only by federal statutory law and enforcement efforts.)

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.
8.22.2008 6:06pm
mad the swine (mail):
What ReaderY said.

"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.
8.22.2008 6:20pm
Malvolio:
Can't the hippies give up already? If you want drugs to be legal, try to convince the majority of voters.
Yeah! And ditto for abortion! And pornography! And the Miranda warning! And slavery!

If the legislature won't do, it shouldn't be done. Constitution? We don't need no stinkin' Constitution!
8.22.2008 6:22pm
mad the swine (mail):
Another example: the government of Utah was once run by Mormons who tolerated, and even encouraged, polygamy in defiance of Federal law. Would anyone today argue that the federal government had no right to arrest and punish bigamy in Utah?
8.22.2008 6:22pm
Federal Dog:
"Can't the hippies give up already? If you want drugs to be legal, try to convince the majority of voters."


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.
8.22.2008 6:45pm
Lior:
@mad the swine:
Would anyone today argue that the federal government had no right to arrest and punish bigamy in Utah?


Was there ever a time where bigamy was a Federal offence?
8.22.2008 6:53pm
Christian K:
@jvarisco

Can't the hippies give up already? If you want drugs to be legal, try to convince the majority of voters. Wait, they already tried that and failed miserably.


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. :)
8.22.2008 7:14pm
Oren:

Was there ever a time where bigamy was a Federal offence?

Not as such, but Congress conditioned Utah's acceptance into the union on anti-polygamy provisions in their state constitution.
8.22.2008 7:16pm
Oren:
jvarisco, check the California laws on marijuana. They make possession of less than 1oz (!) a civil, not criminal offense with a $500 fine. No ballot initiative needed there.
8.22.2008 7:19pm
Dilan Esper (mail) (www):
The California "medical" marijuana argument was a subterfuge to legalize weed sales in Los Angeles and San Francisco. In California, doctors' certificates (real or forged) prescribing marijuana for medical purposes are as easy to get as work/SSN documents are for illegal aliens.

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.
8.22.2008 8:35pm
live+let_live:
U.Va. 3L has it exactly right.

---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.
8.22.2008 9:26pm
live+let_live:
Oops! Too many tropical cocktails tonight. 'decisions' not 'discissions'
8.22.2008 9:32pm
Tatil:

Can't the hippies give up already? If you want drugs to be legal, try to convince the majority of voters. Wait, they already tried that and failed miserably.

Umm, that link refers to Colorado. Not the same state really... :) Hippies along with millions of others in California got convinced.
8.22.2008 9:43pm
Elliot123 (mail):
Never forget we have a drug enforcement industry that employs thousands. It is in the personal self interest of these people to oppose legal drugs.
8.22.2008 10:02pm
Pete Guither (mail) (www):
It appears to me that what some of the commenters are missing when comparing this case to other federal-state conflicts is that, in this case, the claim is that the feds are not simply enforcing federal law (that would be uncontroversial given supremacy), but instead are pursuing an intentional campaign to undermine the state. For example, they are targeting arrests toward those who are cooperating with state law and other acts -- in essence being more interested in disrupting state law than enforcing federal law.
8.22.2008 10:26pm
Brinna:
I am still wondering how the fact that the Federal Government filed for and was awarded a patent (#6,630,507) on the medical uses of cannabis plays out in this whole issue. Since this patent was awarded, not by, but to the US. Dept. of Health and Human Services, based on research done at the NIH, and which states unequivocally that cannabinoids are useful for the prevention and treatment of a wide variety of diseases including stroke, trauma, HIV dementia, auto-immune disorders, Parkinson's and Alzheimer's, doesn't that nullify its classification as a Schedule I substance having no current medical use for treatment in the US?
8.23.2008 3:10am
Michael Edward McNeil (mail) (www):
Dilan Esper said:
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.
8.23.2008 6:27am
M. Simon (mail) (www):
The brain has receptors for various chemicals produced in the brain. Ingested chemicals can also fill those receptors. A doctor can prescribe chemicals to fill a specific receptor. Or you can buy chemicals in the black market to fill those receptors.

I would be interested in knowing what legal theory supports such differentiation. i.e. when did we lose the right to self medicate?
8.23.2008 8:16am
M. Simon (mail) (www):
The body produces chemicals that fill the CB1 receptor. If you have a deficiency a doctor can prescribe medication that will fill the CB1 receptor. If you buy a substance on the street to fill the CB1 receptor you are a criminal.

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.
8.23.2008 8:28am
Oren:

For example, they are targeting arrests toward those who are cooperating with state law and other acts -- in essence being more interested in disrupting state law than enforcing federal law.

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?
8.23.2008 11:12am