Sussing Out The Federal Crackdown on California Medical Marijuana Dispensaries


The Obama administration is once again cracking down on medical marijuana dispensaries in California despite the fact the the benefits of medical marijuana are indisputable, they are well within California law and support for medical marijuana legalization — as well as legalization of marijuana for person use is growing exponentially across the U.S.

Federal prosecutors have sent letters to landlords and owners of dispensaries across California warning them to halt sales of marijuana within 45 days or face property seizures and other legal backlash, though some raids have already commenced.

The Justice Department asserts, as it did during the Bush administration and earlier in the Obama administration that federal drug laws trump state drug laws. While may be true in some cases, the assertion is constitutionally dubious in the case of marijuana that’s grown, sold and used within the state of California.

This is because of a qualifier clause known as the Supremacy Clause in the Constitution that states only laws made “in pursuance” (that is, the following or carrying out) of the Constitution take precedence over state laws. A federal law that is not made “in pursuance” of the Constitution is unconstitutional.

The Supremacy Clause states: “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.”

Meanwhile, some anti-medical marijuana supporters argue that the federal government has unlimited power in this area, but that assertion doesn’t pass muster because the entire Constitution is an exercise in prohibiting federal government from exercising unlimited power.

All of this makes the Justice Department crackdown all the more puzzling.

It’s not like the feds don’t have anything better to do with their time and money, and as priorities go shutting down a bunch of dispensaries that provide a modicum of relief for cancer, HIV/AIDS and glaucoma sufferers should be very low on the list.

“How can the Obama administration say that it’s fine for sick people to use this proven medicine, and yet tell them they can’t have any legal place to get it?” asked Rob Kampia, executive director of the Marijuana Policy Project. “Medical marijuana isn’t going away. Over 70 percent of Americans support making medical marijuana legal, and 16 states allow it.”

Oh, and by the way, Mr. President, more people support the legalization of marijuana than support you.

Los Angeles Times photograph

         

19 Comments

  1. “Oh, and by the way, Mr. President, more people support the legalization of marijuana than support you.” Good point. I have no idea why he would support this behavior. Hasn’t he done enough for the far right? It isn’t like they are going to vote for him.

  2. “or Laws of any State to the Contrary notwithstanding”

    Don’t we have a state law to the contrary?

  3. It may be within California law, but not Federal law. The President must enforce the law. The President cannot change the law to suit himself. We are a nation of laws…remember? Maybe if they put more “prescription like” labels on the jars people might believe the medical angle a bit more. These look like head shop labels.
    So….have the “going out of business sale” adds hit the papers yet?

  4. This is another nail in the coffin for the Obama administration.

    Out of all the crazy shit going on in the White house, this is the only thing I actually had to write “an angry letter to the President” about.

    It’s time for the Federal government to stop beating a dead horse, and let it go. Focus on drugs crossing the border, and leave the Sovereign States alone. People can decide for themselves on this issue.

  5. Allen:

    Yes, the prez is obligated to enforce the law and while implicit in that is that the law is to be enforced with due diligence, the reality is far different.

    Given the overwhelming support for medical marijuana in California, it is unlikely that there would be squawking if there was not a crackdown on dispensaries. They’re there because the voters wanted them. Which makes the decision to crack down weird, as well as dumb politically as Stray Mongrel notes.

  6. Well Shaun, the law is the law. There are more people in this country than just Californians. The population of California cannot dictate Federal Law to the rest of the nation. It would be unfair to crack down on those in other states but not in California.

    You have no argument.

  7. Mongrel-

    Only if Herman Cain gets the GOP nomination. Otherwise the GOP has not a snowball’s chance in Barstow.

  8. Allen:

    Californians are not dictating federal law to other states. They legalized medical marijuana and the clinics to dispense it as a result of a statewide referendum. This did not compel other states to legalize and 34 states have not.

    The Just-Ice Department is using Gonzalez vs. Raich as legal cover. This is the 2005 Supreme Court decision whereas six of the nine justices ruled that under the Commerce Clause of the Constitution, Congress may criminalize the production and use of home-grown marijuana even where states approve its use for medicinal purposes.

    Clarence Thomas, in dissenting, hit the nail on the head when he wrote that “Respondent’s local cultivation and consumption of marijuana is not “Commerce . . . among the several States.” He then for good measure added that “If the majority [of his fellow justices] is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’ ”

    The law is indeed law, but show me a president who has not enforced the law with an eye toward practicality and political expedience. There has been no such president.

  9. Mongrel-

    Yes it does. Federal Law is Federal law, period, end of story.

    The Prerogative of a President to allocate resources toward enforcement priorities will remain the President’s prerogative. If you don’t like the President’s allocations then maybe you can convince your tightwad party to assist with funding in the name of politically equitable law enforcement. Otherwise win an election. Besides, it was Bush that started the crackdowns during his term, so it would appear that you all alone in your party regarding the issue.

    Cause the downfall of President Obama? No way in hell.

    P.S.-States Rights was decided in 1865, so don’t even go there. The states lost.

    http://www.youtube.com/watch?v.....re=related

  10. Hard to believe Clarence Thomas would actually get something right, but he has in this case. This crackdown is wrong, wrong, wrong. So much for the power of the voters. Same deal here in MI, where legalalizing marijuana for medical use was usherered in by voters to the tune of 62%. Apparently that meant nothing to the powers that be, since almost all the dispensaries were intimidated into shutting down by the end of last summer. Btw, I heard Vicente Fox on the BBC last night saying he believes Mexico needs to legalize marijuana, and maybe other drugs in order to defeat the cartels that are destroying the country. Here’s one report of the story:

    http://www.infozine.com/news/s.....sid/49429/

    Think about it, Mexico is smack between the biggest suppliers and the biggest consumers. Legalization might be the only reasonable solution.

  11. JSpencer:

    It will be only a matter of time before Mexico legalizes. The U.S., per usual, is well behind the curve on the federal level compared to EU and other countries.

  12. Allen wrote:

    Well Shaun, the law is the law. There are more people in this country than just Californians. The population of California cannot dictate Federal Law to the rest of the nation. It would be unfair to crack down on those in other states but not in California.

    You have no argument.

    Sorry, Allen, but the U.S. Constitution overrides federal law. Any federal law that is inconsistent with the U.S. Constiution is-by it’s very definition–unconstitutional.

    The fact that there are more people in this country than in California is completely beside the point. There are more people in this country than in New York City where Occupy Wall Street supporters are protesting. Does that give the federal government the power to prosecute these protesters, thereby violating their Constitutional rights?

    All federal drugs laws (including those criminalizing cannabis) are unconstitutional. Anyone who disgrees with this assertion would have to explain why is it that the U.S. Congress was required to pass a Constitutional amendment before outlawing alcohol. Why would Congress need to pass an amendment to ban alcohol if the banning of alcohol was already a legitimate power of the federal government?

  13. I find couple of points strange:

    1. What state do people think the constitution was talking about in “or Laws of any State to the Contrary notwithstanding”? The state department? The head of state for Mexico? Clearly, the phrase wouldn’t have been placed there unless it had meaning, and “any State” is equated to “the Constitution” with the “or”. So is the constitution itself below federal law, or are state laws above federal law?

    2. Why are many of the same people who want the commerce clause expanded to force individuals to buy health insurance now thinking that it would, at the same time, not apply to a personal purchase. You may want the Constitution to be selectively enforced per your preference, but ultimately, you either push for narrow, or broad interpretation, and deal with the result.

  14. ProfElwood wrote:

    Why are many of the same people who want the commerce clause expanded to force individuals to buy health insurance now thinking that it would, at the same time, not apply to a personal purchase. You may want the Constitution to be selectively enforced per your preference, but ultimately, you either push for narrow, or broad interpretation, and deal with the result.

    I was actually thinking the same thing.

    The Constitutional argument that Clarence Thomas made to invalidate the use of the Commerce Clause as justification for federal drug laws could easily be used to invalidate hundreds of other federal laws.

    The seldom said truth about the U.S. Constitution is that very few Americans actually support the document. It is patently obvious that most Americans support the U.S. Constitution when it is politically convenient for them to do so and disregard the U.S. Constitution when application of the document is politically inconvenient.

    I actually don’t have a big problem with those people who genuinely believe that the U.S. Constitutional is so flawed that we should no longer be bound by the document. It’s those who decry Constitutional abuses when the “other side” is in power but have no problem with Constitutional abuses when “their own side” is in power that I have a difficult time taking seriously.

  15. In Gonzales v. Raich, Clarence Thomas wrote:

    Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers.

    Clarence Thomas offers about as clear and concise an argument against using the Commerce Clause as justification for federal marijuana laws as one could ask for. The Commerce Clause states:

    [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

    .I really don’t see how any intelligent or intellectually honest person could argue that growing cannabis in one’s back yard or smoking cannabis in one’s own home constitutes:

    1) commerce with foreign nations,
    2) commerce among the several states, or
    3) commerce with the Indian tribes.

  16. I don’t think we need to toss the Constitution, but it does require serious amending.

    What we don’t need is more Constitution worship. Some corners have turned it into a religious document.

    Side note… I really don’t like Clarence Thomas, but he is dead on correct.

  17. @ShannonLeee
    If by “worship” you mean that some people think it should mean something, and mean it consistently, then count me in with the faithful.

    I’m surprised at how many people want to shred, spit on, and stretch the document enough to let their Mack-truck-sized pet legislation through, then later pick up the soggy pieces, tape them back together and hold it like a shield when the next guy’s truck comes along.

  18. As a native Californian, born and raised here, I have alot of anger about this particular subject.

    These people are not criminals, they are just regular folks. They don’t deserve to get harassed like this.

    Arguing about “enforcing the law” is the wrong angle. We all know the law is unfair, and was built around bologna claims and a silly movie called “Reefer Madness”.

    Instead of harassing folks out here, Obama should use his resources toward getting the law changed at a Federal level.

    He’d earn more friends that way, instead of alienating them.

  19. Just another example of republican hypocrisy is the 180° difference between their position that:

    • ‘states rights’ trumps federal authority during the debate on the healthcare issue… and the abortion issue… and… and… and…
    • BUT people have to acknowledge the federal governments unquestionable authority over states when it comes to marijuana laws?

    Nick’s position has remained consistent (hats off to Nick) and (but?) even though ‘Elwood’ is the only one, in this thread, advocating the republican position I’ve seen it elsewhere and it seems to be the rights talking point on the marijuana issue.

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