California’s Weedy Issue

California’s Weedy Issue

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on November 3, 2010. By the time you read this column, we will know the outcome of the vote in California on Proposition 19, which would allow adults age 21 and older to possess and grow small amounts of marijuana for personal use. It also would allow municipalities to regulate and tax commercial sales of marijuana. Since 1996, California residents have been able to use marijuana for medical purposes. Prop 19 would enhance California’s acceptance of the drug. Supporters, including the ACLU, cite the failure of the current ban to stop the use of and trade in marijuana. People who do not grow marijuana must buy it, an act that fosters violence among the producers and distributors of the drug. California appears to target minorities disproportionally in its enforcement of the ban. According to a Drug Policy Alliance report, between 2006 and 2008 blacks were 4 to 12 times more likely to be arrested than whites in 25 California cities. A recent poll found that 47 percent of Californians had smoked marijuana at least once. Continuing the criminalization of the recreational use of marijuana makes nearly a majority of Californians lawbreakers. The Cato Institute estimates legalization of its use nationwide would save governments $8.7 billion a year in law-enforcement costs and generate another $8.7 billion a year in taxes. Such policy arguments do not persuade U.S. Attorney General Eric Holder, who last month wrote that the Department of Justice would aggressively prosecute federal drug laws in California, even if voters approved the Prop 19. Federal law, in particular the Controlled Substances Act, makes the possession of marijuana for any purpose a crime; however, the Department of Justice generally has not enforced it against those who obtain and use marijuana for medical purposes, in California or the other 14 states that authorize such use. Why did Holder single out California if Prop 19 passes? He did not say, other than to warn that the “legislation will greatly complicate federal drug enforcement efforts.” Some Prop 19 opponents go further, arguing the measure is unconstitutional. Prop 19 makes legal what the CSA makes illegal. In the event of a conflict, federal law preempts state law under the Supremacy Clause, Article VI of the Constitution. For the Supremacy Clause to be triggered, the administration of a state law must conflict with the administration of a federal law, or Congress must intend to regulate a subject matter to the exclusion of state regulation. Upon closer examination, there is no direct conflict in the administration of Prop 19 and CSA. It would exempt from state prosecution recreational users and growers, and does not seek to limit the federal prosecution of the same users and growers under the CSA. Congress has not manifested an intent to occupy the field of drug enforcement. When the CSA was adopted, Congress disclaimed any such intent “unless there is a positive conflict between (a provision of the CSA) and that state law so that the two cannot consistently stand together.” 21 U.S.C. §903. Prop 19’s provisions and the CSA can stand together, just as many other state laws prohibiting, or not prohibiting, the manufacture or possession of drugs do not interfere with enforcement of the CSA. The disclaimer reinforces the assumption against preemption. Our federalist system of government “promotes innovation.” “A single courageous state may, if its citizens choose, serve as a laboratory; and try novel, social, and economic experiments without risk to the rest of the country.” Gonzalez v. Raich, 545 U.S. 1, 42 (2005) (O’Connor, J., dissenting). Prop 19 opponents respond that legalization of marijuana creates a risk to the rest of the country. Marijuana is a gateway drug to harder drugs, they say, which ravage society. Making marijuana more available will deepen the ravage. Whatever the merits of the response, it is a policy argument being addressed by the voters of California. It is not a reason for a court to hold that the CSA preempts Prop 19. If California voters reject it, look for the idea behind the Prop 19 — the legalization of the recreational use of marijuana — to pop up elsewhere. The idea would make for a grand experiment by a state, which is just what the Founding Fathers had in mind when they created our federalist system. &nsp;