#381 Pot Power Play

Date: Sun, 17 Aug 2008
Subject: #381 Pot Power Play


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DrugSense FOCUS Alert #381 – Sunday, 17 August 2008

Today the Los Angeles Times printed an OPED by Kenji Yoshino,
Professor of Constitutional Law at New York University School of Law.
Note that Professor Yoshino demolishes the “federal law supersedes
state law” myth that is so often stated in the media as fact.

The Los Angeles Times is Southern California’s Sunday newspaper – with
a circulation of 1.1 million copies and 3.3 million readers.

The Los Angeles Times advises that published letters typically run 150
words or less and may be edited.

You may use the newspaper’s webform at http://drugsense.org/url/bc7El3Yo
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Pubdate: Sun, 17 Aug 2008
Source: Los Angeles Times (CA)
Copyright: 2008 Los Angeles Times
Author: Kenji Yoshino


Should State or Federal Law Prevail on Medical Marijuana?

Just because a majority of Californians voted to make marijuana
available for medical purposes does not mean it is legal. Charles
Lynch, the owner of a Morro Bay medical marijuana dispensary, learned
this lesson the hard way on Aug. 5 when he was convicted of violating
the federal Controlled Substances Act. His lawyers defended him in
part by saying his business had the blessing of elected officials in
Morro County. But the jury convicted him under federal drug laws; in
October, he will be sentenced to a period of five to 85 years in
prison, though he has vowed to appeal.

Federal and state laws with respect to medical marijuana have been in
tension for years. Under the federal Controlled Substances Act of
1970, the distribution or possession of marijuana is a crime, with no
exceptions for medical use. Under California’s Compassionate Use Act
of 1996, however, individuals who meet certain criteria may distribute
or use marijuana for medical purposes without running afoul of state
law. In 2003, the Legislature further bolstered the medical marijuana
movement with a law requiring counties to provide patients with an
identification card that protects them from state prosecution.

This places dispensers of medical marijuana, such as Lynch, in an
untenable position. From the perspective of the federal government,
they are no different from common drug dealers, susceptible to Drug
Enforcement Administration busts and substantial prison sentences.
From the perspective of the state government, they are running
legitimate businesses that pay taxes and otherwise comply with
California law.

The courts have yet to resolve this controversy. Under the supremacy
clause of the U.S. Constitution, federal law supersedes state law when
the two conflict. But it is not as obvious as it might seem that they
do. Language in the federal Controlled Substances Act specifies that
it only preempts state laws that create a “positive conflict” with it.
A court could find that because California law does not expressly
prevent the federal government from enforcing its own drug law, the
two sets of laws are consistent.

Indeed, on July 31, the state’s 4th District Court of Appeal took a
step in that direction. It held that the Controlled Substances Act
does not preempt California’s requirement that counties give medical
marijuana users identification cards. The court expressly declined to
go any further, but proponents of medical marijuana rightly viewed the
ruling to be a significant win. If the decision withstands appeals, it
will ensure that federal law will not completely wash out the state

But it seems unlikely that courtrooms are where this legal dissonance
will be resolved. This is especially true since 2005, when the U.S.
Supreme Court heard a federal constitutional challenge to the
Controlled Substances Act. In that case, Californians sought to
protect the use of medical marijuana by stating that it is a purely
intrastate matter, and thus beyond Congress’ reach. The high court
rejected that argument, ruling that, as a whole, the drug law was a
proper exercise of Congress’ power to regulate interstate commerce.

After that decision, the legislative and executive branches of
government are best equipped to make federal and state law consistent.
The remaining question is which side — federal or state — should
give way in this standoff.

In this instance, the federal government should cede. Under our
federal system, the states are supposed to serve as laboratories of
experimentation (to paraphrase Supreme Court Justice Louis Brandeis)
that permit a variety of policy approaches that suit local mores.
Moreover, the areas implicated by medical marijuana — crime and
health — have traditionally been areas of state sovereignty. This
perhaps explains why — flying in the face of the Controlled
Substances Act — 13 states have passed some form of medical marijuana

Under the Controlled Substances Act, marijuana is grouped with heroin
and mescaline in the set of drugs subject to the most stringent
regulation. Congress or the U.S. attorney general has the power to
reclassify marijuana so it can be dispensed by a physician.
Alternatively, the U.S. Department of Justice could use its discretion
and stop prosecuting medical dispensation and use in states that have
legalized it. California’s Legislature has supported both
alternatives, and Barack Obama, the presumptive Democratic
presidential nominee, has expressed support for the latter. John
McCain was equivocal early in the Republican primaries, but the
candidate has since said he would not end the federal raids on medical
marijuana dispensaries.

State medical marijuana laws should not be seen as an attempt to flout
the authority of the federal government. These laws are a proper
exercise of a state prerogative to which the federal government should


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