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Feds Will Not Honor California Voter’s Decision On Marijuana Legalization

Attorney General Eric Holder announced today that even if California voters approve Proposition 19, would legalize marijuana in the state, the Federal Government still intends to prosecute California citizens for consuming a product that is legal within their state’s borders:

SAN FRANCISCO (AP) — Attorney General Eric Holder says the federal government will enforce its marijuana laws in California even if voters next month make the state the first in the nation to legalize the drug.

The Justice Department strongly opposes California’s Proposition 19 and remains firmly committed to enforcing the federal Controlled Substances Act in all states, Holder wrote in a letter to former chiefs of the U.S. Drug Enforcement Administration. The Associated Press obtained a copy of the letter, dated Wednesday.

“We will vigorously enforce the CSA against those individuals and organizations that possess, manufacture or distribute marijuana for recreational use, even if such activities are permitted under state law,” Holder wrote.

The attorney general also said that legalizing recreational marijuana in California would be a “significant impediment” to the government’s joint efforts with state and local law enforcement to target drug traffickers, who often distribute marijuana alongside cocaine and other drugs.

He said the ballot measure’s passage would “significantly undermine” efforts to keep California communities safe.

This isn’t a surprise, of course.

The Federal Government took the same position in 1996 when California voters approved Proposition 215, which legalized marijuana for medicinal use. Despite the clearly expressed will of the California people, and despite the fact that in these particular cases the use of marijuana was being authorized by physicians, the Federal Government continued to prosecute Californians under Federal drug laws that are, typically, much harsher than state drug laws. The Supreme Court ruled in Gonzalez v. Raich that the Federal Government was authorized to do this, even in a situation where the marijuana was grown, prescribed, sold, and consumed, entirely within the confines of the State of California. The Obama Administration has placed a hold a prosecutions of medical marijuana users in California, but there’s no reason that they couldn’t resume at any moment.

All of this raises a question.

If the voters of California want marijuana to be legal within their borders, why should the Federal Government be able to say otherwise? As a practical matter, of course, there is a difference between the California Criminal Code and Title 18 of the United States Code, but that only tells us what is, not what should be. Where in the Constitution, for example, is the Federal Government even authorized to make laws dealing with possession of any substance within the borders of a state where that substance is legal? This strikes me as a perfect example of both the perversion of the Commerce Clause that Dodd  wrote about last week, and the need for the reinvigoration of the Tenth Amendment.  Drug laws should be, for the most part, a purview of state rather than Federal law, and if the people of California want to make marijuana, or any other substance, legal, I don’t see why Eric Holder should be able to tell them otherwise.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Brummagem Joe says:

    While emotionally i’m on the side of states rights over this, intellectually it’s a no brainer that the govt is going to assert the primacy of Federal criminal law. As a practical matter I suspect they are not going to do much to enforce it.

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  2. Joe,

    You probably will call me a nihilist again, but what provision in the Constitution authorizes the government to forbid me from choosing to smoke marijuana if I want to?

    Like or Dislike: Thumb up 1 Thumb down 0

  3. mantis says:

    Joe,

    Which provision in the Constitution authorizes the government to forbid me from impersonating a federal agent if I want to?

    Like or Dislike: Thumb up 0 Thumb down 0

  4. Brummagem Joe says:

    Doug Mataconis says:
    Friday, October 15, 2010 at 17:20

    Actually Doug (and RINO MORON*) I’d say these were fairly perfect definitions of a nihilist response. Of course there are no clauses within the constitution that explicity deny you the right to smoke pot, rob banks, run drug and prostitution rings, establish terrorist cells, and any other faintly silly examples of criminal behavior you contemplate. However, I could be wrong so I’ll let the acuity of your observations speak for themselves.

    *EDITOR’S NOTE: This refers to a comment by a poster who has since been banned and had his annoying posts deleted.

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  5. mantis says:

    You probably will call me a nihilist again, but what provision in the Constitution authorizes the government to forbid me from praying in a pulic school during school hours?

    Actually, this is a bad example. You’re free to pray all you want in a public school. What you can’t do is force, or coerce, the students to pray.

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  6. Brummagem Joe says:

    ” but what provision in the Constitution authorizes the government to forbid me from slapping Doug in the face for hating Sara Palin (for absolutely NO reason)… if I want to?”

    Sorry you’re a parodist. However, Doug dear heart, a JD no less, isn’t.

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  7. Joe,

    The fact that you think it’s a silly question tells me everything I need to know about you

    Like or Dislike: Thumb up 0 Thumb down 0

  8. mantis says:

    Maybe, but I bet this site dedicates 23 threads on why people who pray in school are idiots.

    Seems pretty unlikely to me.

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  9. mantis says:

    What if it were Sara Palin’s kids who were praying in school??

    hhhhhhhmmmmmmmmmm

    I don’t know, what if?

    You’re an odd duck.

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  10. Steve Plunk says:

    Personally I’d like to see it pass even thoughI have qualms about passing it my own state. States can indeed be those places where experiments can occur and legalization of marijuana is something that should be experimented with rather than passed everywhere. The country could learn from what California experiences over the next few years and judge if it’s right for them. This could also be the type thing, along with the health care lawsuit, to put some sense of limitation back in the commerce clause.

    If we’re going to push state’s rights we have to understand it will apply to all sorts of contentious issues. Regardless I still see it as the right way to go.

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  11. Brummagem Joe says:

    ‘The fact that you think it’s a silly question tells me everything I need to know about you”

    No problem Doug. I know it’s crazy of me to believe in the primacy of federal law.

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  12. Steve Plunk says:

    But RINO, hasn’t that experiment been tried and the states chosen not to legalize? I know of no state pushing to legalize cocaine.

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  13. Brummagem Joe says:

    “States can indeed be those places where experiments can occur and legalization of cocaine is something that should be experimented with rather than passed everywhere.”

    Euthanasia ok? Restriction of voting rights? No problemo.

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  14. Joe,

    The supremacy of Federal Law requires that the law in question be pursuant to one of those powers granted by Article I, Section 8 of the Constitution, or one of the amendments (which answers your silly rejoinder about voting rights, of course)

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  15. Zelsdorf Ragshaft III says:

    Good place to invest your money. Grow and sell pot. Gain a fortune. Have federal agents arrive at your location. Confiscate all property gained through illegal activities. I live in CA and cannot wait until they make what people have been doing here for decades legal. It will be a job creator. The FBI and DEA will be hiring new agents. Doug if you think federal law concerning Pot is extra constitutional, take them to court. I can think of any number of reasons why it is constitutional. It is placed right next to the passage which deals with a womans right to an abortion and gay rights to marry.

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  16. Brummagem Joe says:

    Doug Mataconis says:
    Friday, October 15, 2010 at 18:13
    Joe,

    “The supremacy of Federal Law requires that the law in question be pursuant to one of those powers granted by Article I, Section 8 of the Constitution, or one of the amendments”

    I think Mr Holder would argue that his position on pot satisfies this description. But what do him and DOJ know?

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  17. Joe,

    You still haven’t answered the question other than saying “Eric Holder thinks it’s so.”

    Well, I guess that tells me what you think about the Constitution because I already know what Holder’s DoJ — which has defended warrantless wiretaps and the President’s right to order the murder of an American citizens without due process — thinks about that document.

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  18. Brummagem Joe says:

    (which answers your silly rejoinder about voting rights, of course)

    Yeah that was a slip but then I’m not a lawyer. I’m not so sure about putting grandma to sleep though. The passage of state laws allowing this would probably be ok in your legal universe wouldn’t it? Or of course some states having very liberal abortion laws and others making it a capital offense. Yeah sounds like a perfect recipe for legal order but then nihilist don’t usually want order, they want chaos.

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  19. PD Shaw says:

    No offense, but I would care more about California’s concerns if it weren’t one of the states most frequently involved in nationalizing it’s own state preferences.

    Though I personally am an advocate of a strong national government, . . . so maybe on second thought I’m not really sympathetic to California’s concern at all.

    Policy wise, small amounts of pot don’t seem like a national concern.

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  20. Brummagem Joe says:

    “Policy wise, small amounts of pot don’t seem like a national concern.”

    It isn’t a national concern which is why as Doug concedes it’s not going to be enforced particularly rigorous. It’s about the legal relationship between Federal and state govt in what is in federal terms a criminal matter.

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  21. ratufa says:

    Doug,

    If you want a legal reason from a social-order conservative (as opposed to libertarian conservative) point of view as to why the Federal Government can enforce marijuana laws in California, one example would be Scalia’s Gonzales v. Raich concurrence:

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-1454#concurrence1

    Mark Kleiman once suggested that the entire Federal law on marijuana should basically consist of 1) States can make their own laws concerning marijuana and 2) It’s a Federal offense to import marijuana into a state in violation of that state’s laws. Something like that sounds pretty reasonable to me. But, few politicians, including, I suspect, very few of the so-called “small government” and “states rights” Tea Party candidates, would support such a law.

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  22. john personna says:

    Good place to invest your money. Grow and sell pot. Gain a fortune.

    If Burpee seeds doesn’t have a line on supply, they should.

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  23. john personna says:

    No offense, but I would care more about California’s concerns if it weren’t one of the states most frequently involved in nationalizing it’s own state preferences.

    California only does that through market power 😉

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  24. PD Shaw says:

    I strongly suspect Doug is familiar with Gonzales, nay there be few nights where he doesn’t awaken in a cold sweat screaming Scalia!!!!!

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  25. Brummagem Joe says:

    “California only does that through market power ;-)”

    A bit like Texas was trying to do with educational textbooks?

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  26. john personna says:

    “A bit like Texas was trying to do with educational textbooks?”

    It’s the same dynamic. They can try, and people within and without the state can push back.

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  27. The real question is where the California law enforcement establishment is on Prop 19. If they refuse to assist the feds collect intelligence or evidence on marijuana distribution, it’s going to be hard for the federal government to do anything about it. They simply don’t have the resources to enforce the federal law without assistement from state and local police and prosecutors.

    Sadly, it’s far more likely that the state and local law enforcement will ignore prop 19 and continue doing everything they do now with the one exception of turning all the information to the feds for the final prosecution.

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  28. Brummagem Joe says:

    ‘it’s going to be hard for the federal government to do anything about it.”

    The Feds aren’t interested in doing anything about it. This is about establishing a legal principle. Yesterday Doug was waxing lyrical about why the Govt needed to appeal the decision on DADT to preserve a principle. That’s what they will be doing with Prop 19.

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  29. G.A.Phillips says:

    If we legalize pot, they will lose a lot of the illegal alien vote, I know millions of white and black Americans that will tend them gardens, for minimum wage. Man that really messes up union pay and votes.

    You have to remember how smart Obama and his law dawg are, why else would a crazy A$$ liberal 20%er oppose legal weed?

    Maybe there is a study on how THC deludes the effects of the coolaid?

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  30. mantis says:

    Maybe there is a study on how THC deludes the effects of the coolaid?

    No, but we can be pretty sure the effects of huffing paint have not been “deluded” in your case, but you sure are!

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  31. RGardner says:

    I believe the best analogous situation is prostitution, legal in with government control in the State of Nevada, the Commonwealth of Puerto Rico, and the Territory of Guam. Why not pot?

    Professional courtesy aside, imagine some DEA agents being arrested in CA for false arrest (or some such). Could get interesting.

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  32. Zelsdorf Ragshaft III says:

    Mantis, you are a piece of work. Everytime you comment the smell of dog feces seems to accompany your opinion. A crack head like yourself should look into this phenomenon. Is that how you lost your mind? Huffing paint?

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  33. G.A.Phillips says:

    ***A crack head like yourself should look into this phenomenon. Is that how you lost your mind?***

    lol, Zell’s I was a crack head for over ten years but it never seemed

    ” to frustrate the hopes or plans of”

    myself not to be an indoctrinated liberal like Mantis anymore, but then again I never huffed paint or sniffed Obama’s shorts and was able to put down the coolaid the first time I tried:)

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  34. sam says:

    “I strongly suspect Doug is familiar with Gonzales, nay there be few nights where he doesn’t awaken in a cold sweat screaming Scalia!!!!”

    Heh.

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  35. Duracomm says:

    You have to vote for democrats because they are better than the republicans when it comes to the drug war and civil liberties.

    Wait, what???

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  36. Tano says:

    “Mark Kleiman once suggested that the entire Federal law on marijuana should basically consist of 1) States can make their own laws concerning marijuana and 2) It’s a Federal offense to import marijuana into a state in violation of that state’s laws.”

    Why do you see a need for a law regarding marijuana on the Federal level at all?

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  37. […] Feds Will Not Honor California Voter’s Decision On Marijuana Legalization (outsidethebeltway.com) […]

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  38. mantis says:

    Everytime you comment the smell of dog feces seems to accompany your opinion.

    Scents don’t transmit over the internet. Olfactory hallucinations are often the sign of a mental disorder or brain injury. You should ask the nurse to up your meds.

    lol, Zell’s I was a crack head for over ten years

    This explains so much.

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  39. ratufa says:

    “Why do you see a need for a law regarding marijuana on the Federal level at all?”

    To make it clear that a state has full control over the import of marijuana into that state. See Granholm v. Heald for an example of the sort of legal controversy that can happen if you don’t make that clear:

    http://en.wikipedia.org/wiki/Granholm_v._Heald

    I’m not defending the exact wording of any such Federal law, just the idea that a state should have the full authority to decide how marijuana is regulated and how it is sold to residents of the state, which means clarifying what a state is allowed to do wrt interstate commerce in this area.

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  40. G.A.Phillips says:

    ***This explains so much.***lol, nice come back……

    lol I thought a Uber Pooper liberal like you would have more sympathy for a victim like me, you know, a drug addict who started with the gateway drug WEED!!!!!!!

    I make jokes about your indoctrination, and you attack me with the truth I tell you about my medical disorder…..

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  41. Russ says:

    I believe any states inability to ensure that any pot grown and sold in their state to be solely used in their state allows the federal govt to act to prevent the transfer of the pot to another state.

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  42. matt says:

    haha gateway drug haha

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  43. Mike from DC says:

    Obviously I’m late to the party, but I think the question really is “what moron wrote this article?”

    The Federal Criminal Code is very different from a state’s criminal code. The California Proposition only affects California law, not Federal law. So, the idea that because California decriminalizes/legalizes pot, that the feds are under any obligation to not enforce federal law is sheer idiocy.

    Of course, if the feds want to enforce federal criminal penalties and spend the money to pick up the slack from the lack of state enforcement, that’s fine, but eventually someone is going to ask why the hell is the federal government spending so much money on enforcing this law when there are better priorities.

    The other question is whether it’s appropriate for the federal law to apply to using pot at all depends on the facts. If Doug smoked pot grown and distributed by Doug Mataconis Enterprises, a multinational conglomerate involved in such industries as balitinazation, breast milk flavored LSD, those twirly things on strippers breasts and weed distribution, then you might have an argument because it involves inter-state commerce. If Doug smoked pot grown by Mataconis Farms, a small co-op using solely seed acquired from local plants, fertilizer generated from, erm, local animals, then, arguably, the constitution shouldn’t apply as that wouldn’t impact interstate trade.

    Of course, distinguishing between locally grown pot and pot trucked in from other states might be a tad difficult, but that would be why federal law might apply.

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