Illegal Is Still Illegal
The United states Supreme Court ruled in a 6-3 decision today that state laws don't protect users of marijuana from the federal ban on the drug. I applaud the decisions for two specific reasons. First, under the Controlled Substances Act (Title 21, Chapter 13, Section 841) it is illegal to: for any person knowingly or intentionally—
1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
The second reason is a very simple one. Because the federal government has taken point on governing the states in regard to illegal substances, i.e. drugs, then State law may not trump federal law. But I disagree with the government’s contention that this falls under the Interstate Commerce Clause. Those that engage in the use and growth of marijuana under the California Compassionate Use Act are doing so for their own benefit. That "product" is not being distributed outside of the state, and in all likelihood isn’t being distributed within the state either.
The AMA (yes, I started my day off with a butt-load of research) has deemed that without further testing as to the effects of marijuana on human patients in regard to diseases like HIV/AIDS and cancer that they cannot fully determine it’s benefits, if any. They do recommend further testing, but they discourage physicians that are providing prescriptions for it, or are recommending that avenue to their patients.
Justice John Paul Stevens, writing the 6-3 decision, said that Congress could change the law to allow medical use of marijuana. And I agree with this point. Congress made marijuana illegal, it falls to them to correct the problem. It not only did so through federal law, but allowed the creation of the Drug Enforcement Agency in policing said drug laws. This is a Congressional issue that needs to be attended to, not a State issue.
States, despite their rights under the 10th Amendment to be able to make laws to govern their citizens, can’t trump federal law. Granted, the proper interpretation of the 10th Amendment is that the power of the states to do that is provided as long as they do not invade on the jurisdiction of the federal government as enumerated in the Constitution. The States should have the power to regulate their citizens on issues such as drugs and education, but because the federal government got to the issues first, the States’ hands are tied.
And whereas a few on the Court have pushed more towards the observance of States’ rights (Scalia, Thomas, O’Connor—today—and Rehnquist) this is not such an issue. The argument of States’ rights should not even enter into this equation, and neither should Interstate Commerce. Neither are relevant. What is relevant, and is in fact the underlying point of this case is that for over forty years, marijuana has been illegal in this country. It was made so by the federal government. A State can’t just simply step in and make a law contrary to the federal government. It is only obvious that the law will be struck down.
Interstate Commerce enters this case when one looks at it’s full precedent: Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. ( HOUSTON, EAST & WEST TEXAS RAILWAY COMPANY and Houston & Shreveport Railroad Company v. UNITED STATES, the Interstate Commerce Commission; and TEXAS & PACIFIC RAILWAY COMPANY v. UNITED STATES, the Interstate Commerce Commission. Argued in 1913, decided in 1914) Those that use marijuana for medicinal purposes—going against federal law—are violating this part of the USSC decision which gives Congress the power to regulate even intrastate activities. If they purchase it, grow it, or smoke it, it’s an activity in that state that is illegal under federal law.
In this case, the federal government has the "right of way". In a dissent, Justice Sandra Day O'Connor said that states should be allowed to set their own rules. And I respect this dissent, though it is incorrect. First off, States can set their own laws (going back to the 10th Amendment, again) but is it lawful for a state to set it’s laws contrary to that of the government? What if by some strange twist of fate, someday the voters outlaw firearms? Does federal law supersede that? The Constitution is, in fact, fundamental law, and it is the highest law amongst the federal laws, rules, and regulations. At least it should be, and at times it isn’t. But yes, the federal law should trump that mandate by the voters of a state. Not only because of the law that states you may own a firearm, but because of the 2nd Amendment which states that it’s a right.
"The states' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens," said O'Connor, who was joined in her dissent by two other states' rights advocates: Chief Justice William H. Rehnquist and Justice Clarence Thomas. And I really hate to dissent from them, but the majority is correct in this case. The federal government has the right to stop such a procedure. They have made it illegal, and that is that.
Stevens said there are other legal options for patients, "but perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these (California women) may one day be heard in the halls of Congress." Justice Stevens is correct, and it is a mantra that I have learned repeatedly for a very long time. The States do have their rights, but not when it comes to contravening federal law. This is a matter for the voters to lobby their representatives in Congress to amend the law, or to make a new one that is similar in nature to the California law, or the laws of eight other states that have similar measures approved by the people.
I can convince my lawmakers to extend bar hours because it’s not mandated under federal law. I can lobby the State House and Senate to raise the driving age and the drinking age. I can’t lobby them to raise the voting age. That’s federally mandated under the Constitution. (26th Amendment) As long as the federal government has no jurisdiction now, the States jurisdiction is defined. In other words, until some lame-brained judge decides that under the ICC the government has the right to dictate the driving age to a state, the state still has that jurisdiction. Until the federal government gives up on a law (such as the now-expired Brady Bill), the states may not regulate that issue. Because the Brady Bill has expired, any state wishing to enact such a bill may do so. It is, in a way, a form of checks and balances.
The federal government has the ability to check a state’s actions. This is one of those ways; by having a law on the books forbidding an act. The State, likewise, may do so back to the federal government, as Arizona did last November with the passage of Prop. 200, and as many states did last year with the passage of the protection of marriage laws and amendments. This case revolves around so many different cited laws and cases and the problem for the petitioners is that the federal government already has a law—in fact, several laws—in place that regulate and make illegal the possession, use, distribution, or sale of marijuana. The State jurisprudence can’t trump that law.
Justice Stevens is correct: To truly change this law, the people will have to convince Congress to amend the laws on the books. This cannot be a matter decided by the States.
Publius II
The United states Supreme Court ruled in a 6-3 decision today that state laws don't protect users of marijuana from the federal ban on the drug. I applaud the decisions for two specific reasons. First, under the Controlled Substances Act (Title 21, Chapter 13, Section 841) it is illegal to: for any person knowingly or intentionally—
1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
The second reason is a very simple one. Because the federal government has taken point on governing the states in regard to illegal substances, i.e. drugs, then State law may not trump federal law. But I disagree with the government’s contention that this falls under the Interstate Commerce Clause. Those that engage in the use and growth of marijuana under the California Compassionate Use Act are doing so for their own benefit. That "product" is not being distributed outside of the state, and in all likelihood isn’t being distributed within the state either.
The AMA (yes, I started my day off with a butt-load of research) has deemed that without further testing as to the effects of marijuana on human patients in regard to diseases like HIV/AIDS and cancer that they cannot fully determine it’s benefits, if any. They do recommend further testing, but they discourage physicians that are providing prescriptions for it, or are recommending that avenue to their patients.
Justice John Paul Stevens, writing the 6-3 decision, said that Congress could change the law to allow medical use of marijuana. And I agree with this point. Congress made marijuana illegal, it falls to them to correct the problem. It not only did so through federal law, but allowed the creation of the Drug Enforcement Agency in policing said drug laws. This is a Congressional issue that needs to be attended to, not a State issue.
States, despite their rights under the 10th Amendment to be able to make laws to govern their citizens, can’t trump federal law. Granted, the proper interpretation of the 10th Amendment is that the power of the states to do that is provided as long as they do not invade on the jurisdiction of the federal government as enumerated in the Constitution. The States should have the power to regulate their citizens on issues such as drugs and education, but because the federal government got to the issues first, the States’ hands are tied.
And whereas a few on the Court have pushed more towards the observance of States’ rights (Scalia, Thomas, O’Connor—today—and Rehnquist) this is not such an issue. The argument of States’ rights should not even enter into this equation, and neither should Interstate Commerce. Neither are relevant. What is relevant, and is in fact the underlying point of this case is that for over forty years, marijuana has been illegal in this country. It was made so by the federal government. A State can’t just simply step in and make a law contrary to the federal government. It is only obvious that the law will be struck down.
Interstate Commerce enters this case when one looks at it’s full precedent: Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. ( HOUSTON, EAST & WEST TEXAS RAILWAY COMPANY and Houston & Shreveport Railroad Company v. UNITED STATES, the Interstate Commerce Commission; and TEXAS & PACIFIC RAILWAY COMPANY v. UNITED STATES, the Interstate Commerce Commission. Argued in 1913, decided in 1914) Those that use marijuana for medicinal purposes—going against federal law—are violating this part of the USSC decision which gives Congress the power to regulate even intrastate activities. If they purchase it, grow it, or smoke it, it’s an activity in that state that is illegal under federal law.
In this case, the federal government has the "right of way". In a dissent, Justice Sandra Day O'Connor said that states should be allowed to set their own rules. And I respect this dissent, though it is incorrect. First off, States can set their own laws (going back to the 10th Amendment, again) but is it lawful for a state to set it’s laws contrary to that of the government? What if by some strange twist of fate, someday the voters outlaw firearms? Does federal law supersede that? The Constitution is, in fact, fundamental law, and it is the highest law amongst the federal laws, rules, and regulations. At least it should be, and at times it isn’t. But yes, the federal law should trump that mandate by the voters of a state. Not only because of the law that states you may own a firearm, but because of the 2nd Amendment which states that it’s a right.
"The states' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens," said O'Connor, who was joined in her dissent by two other states' rights advocates: Chief Justice William H. Rehnquist and Justice Clarence Thomas. And I really hate to dissent from them, but the majority is correct in this case. The federal government has the right to stop such a procedure. They have made it illegal, and that is that.
Stevens said there are other legal options for patients, "but perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these (California women) may one day be heard in the halls of Congress." Justice Stevens is correct, and it is a mantra that I have learned repeatedly for a very long time. The States do have their rights, but not when it comes to contravening federal law. This is a matter for the voters to lobby their representatives in Congress to amend the law, or to make a new one that is similar in nature to the California law, or the laws of eight other states that have similar measures approved by the people.
I can convince my lawmakers to extend bar hours because it’s not mandated under federal law. I can lobby the State House and Senate to raise the driving age and the drinking age. I can’t lobby them to raise the voting age. That’s federally mandated under the Constitution. (26th Amendment) As long as the federal government has no jurisdiction now, the States jurisdiction is defined. In other words, until some lame-brained judge decides that under the ICC the government has the right to dictate the driving age to a state, the state still has that jurisdiction. Until the federal government gives up on a law (such as the now-expired Brady Bill), the states may not regulate that issue. Because the Brady Bill has expired, any state wishing to enact such a bill may do so. It is, in a way, a form of checks and balances.
The federal government has the ability to check a state’s actions. This is one of those ways; by having a law on the books forbidding an act. The State, likewise, may do so back to the federal government, as Arizona did last November with the passage of Prop. 200, and as many states did last year with the passage of the protection of marriage laws and amendments. This case revolves around so many different cited laws and cases and the problem for the petitioners is that the federal government already has a law—in fact, several laws—in place that regulate and make illegal the possession, use, distribution, or sale of marijuana. The State jurisprudence can’t trump that law.
Justice Stevens is correct: To truly change this law, the people will have to convince Congress to amend the laws on the books. This cannot be a matter decided by the States.
Publius II
posted by Syd And Vaughn | 10:29 AM
3 Comments:
I completely agree.
Good blog. Good explanation and well written. I agree with you. I'm glad to see the decision. The aclu must be having fits. It advocates that all drugs should be legal without restrictions. Rawriter
Raw,
TY very much. Now that I have fully seen and read the decisions--both concurring and dissenting opinions--I'm more convinced of my position than ever.
At it's heart, this case doesn't revolve around the ICC. It revolves around the powers of the federal government. States rights don't even enter into this case because the state of California NEVER had the authority to regulate marijuana in the first place.
The federal government, under FDA regulations, takes precedent in this case. As long as they deem marijuana illegal, then it stays that way. EVERY state in the nation could pass legislation or ballot initiatives to mirror California's, and it still wouldn't change the precedent that has already been set.
Obviously unbeknownst to those that stand for "sparking up a doobie" when you want to--and I include the ACLU in that generalization (Go to their site and read their reaction--the law is still the law, and popular opinion, as a general rule, can't change that.
To change a law, people must do as Scalia has recommended in the past (which is to change the law of the state through the legislative process), or as Stevens cited today (in lobbying Congress to change their law, or make a special provision within the law.)
There is the recourse these people have. It's the only recourse they have.
Thomas
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