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California Prop 19 vs. Arizona’s Immigration Law

If the federal government does not preempt the Golden State's attempt to legalize marijuana, it would make their attack on Arizona's immigration law look like a matter of political whimsy.

by
Dan Miller

Bio

July 15, 2010 - 12:00 am
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California Proposition 19 would make the sale and use of marijuana for many purposes, beyond medical use, lawful and taxable in California:

Proposition 19, also known as the Regulate, Control and Tax Cannabis Act of 2010, is a California ballot proposition which will be on the November 2, 2010, California statewide ballot. It legalizes various marijuana-related activities, allows local governments to regulate these activities, permits local governments to impose and collect marijuana-related fees and taxes, and authorizes various criminal and civil penalties. In March 2010 it qualified to be on the November statewide ballot.

Under the proposition:

Persons over the age of 21 may possess up to one ounce of marijuana for personal consumption.

May use marijuana in a non-public place such as a residence or a public establishment licensed for on site marijuana consumption.

May grow marijuana at a private residence in a space of up to 25 square feet for personal use.

The official California report on Proposition 19 observes:

Marijuana is illegal under federal laws. If marijuana becomes legal in California under state law, it will still be federally illegal. The U.S. Supreme [Court] has previously ruled that federal agents can arrest medical marijuana users and growers even though Proposition 215 [enacted in 1996] makes that behavior legal in California.

Despite the announcement by Attorney General Holder last year that the federal government would avoid going after the legitimate medical use of marijuana, there has been no similar ex cathedra declaration by Attorney General Holder that non-medical use of marijuana (as Proposition 19 would authorize) is OK. In any event, the federal laws, enforced or not — rather like federal immigration laws — remain on the books. There are legitimate uses for prosecutorial discretion, but refusal to enforce federal laws because the attorney general and the president don’t like them and lack the necessary votes to change them are not among them.

The Holder Justice Department recently sued Arizona arguing that its new immigration law is unconstitutional on the theory of implied, as distinguished from express, federal preemption. Implied and express preemption are different, and the doctrine of implied preemption is far more tenuous than that of express preemption.

The doctrine of express preemption is dealt with quite well here, where is it noted that:

Under Article VI of the Constitution, valid federal statutes are, in the words of the Supremacy Clause, “the supreme law of the land.” That means that state laws are unenforceable to the extent that they conflict with valid federal laws. In such circumstances, lawyers say that the federal law “preempts” state law.

Here is a straightforward example of preemption: Federal copyright law gives composers and performers various exclusive rights to the publication and reproduction of their creative works. Suppose that some state, nonetheless, chose to legalize file-sharing, by passing a law giving all persons in the state the legal right to make electronic copies of downloaded songs for non-commercial purposes, without paying the copyright-holders. That state law would clearly be preempted, because it directly conflicts with the federal copyright law.

The sale and use of marijuana is cited as a classic example:

Under the Supreme Court’s 2005 ruling in Gonzales v. Raich, the federal marijuana prohibition is a valid exercise of congressional power to regulate interstate commerce; it thus trumps state laws legalizing medical marijuana.

The Arizona case relied on the doctrine of implied preemption because there was no significant basis for a claim of express preemption. According to the preemption primer linked above:

With a minor exception that the government’s brief relegates to a footnote, the Justice Department does not contend that the federal immigration laws expressly preempt Arizona’s S.B. 1070. Instead, the Justice Department argues that this is a case of implied preemption. Courts find implied preemption when a state law bumps up against federal policy, even if it does not directly contradict federal law (as in the copyright example) or run counter to an express preemption clause (as in the cigarette example).

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