California Prop 19 vs. Arizona’s Immigration Law
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).
What about California’s Criminal Code?
http://law.justia.com/california/codes/pen/833-851.90.html
834b. (a) Every law enforcement agency in California shall fully cooperate with the United States Immigration and Naturalization Service regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration laws.
(b) With respect to any such person who is arrested, and suspected of being present in the United States in violation of federal immigration laws, every law enforcement agency shall do the following:
(1) Attempt to verify the legal status of such person as a citizen of the United States, an alien lawfully admitted as a permanent resident, an alien lawfully admitted for a temporary period of time or as an alien who is present in the United States in violation of immigration laws. The verification process may include, but shall not be limited to, questioning the person regarding his or her date and place of birth, and entry into the United States, and demanding documentation to indicate his or her legal status.
(2) Notify the person of his or her apparent status as an alien who is present in the United States in violation of federal immigration laws and inform him or her that, apart from any criminal justice proceedings, he or she must either obtain legal status or leave the United States.
(3) Notify the Attorney General of California and the United States Immigration and Naturalization Service of the apparent illegal status and provide any additional information that may be requested by any other public entity.
(c) Any legislative, administrative, or other action by a city, county, or other legally authorized local governmental entity with jurisdictional boundaries, or by a law enforcement agency, to prevent or limit the cooperation required by subdivision (a) is expressly prohibited.
Section 834b of the California Penal Code was held to have been preempted by the Constitution, and there unconstitutional, by a federal court in 1995, almost as soon as it was enacted. A state appellate court reached the same conclusion last year. It my be “on the books,” but it’s unenforceable.
Election Year Medicaid Medicare Inducement issues left open for November not openly discussed. Politics have gone from heated to Man on fire thoughts.Also the Judicial dilemmas, since all are offically allowed to bear arms again, the big city Mayors are concerned about how the poor will be able to rearm themselves and are looking for some type of financial relief from Federal State Medicaid programs to maintain status quo.The higher courts face tough issues this term since making honest fraud legal, there agenda now turns toward making honest kickbacks and honest bribes equally as legal. This topic remains high as a shared issue by the medicaid medicare enrollment providers since they are looking to expand inducements past the complicated pregnancy stage.The DOJ has serious concerns that if legalized marijuana in California for medical reasons could be used as a inducement or inticement to help secure new enrollments for the Federal State Medicare Medicaid programs.The State of California is concerned that if the Feds step up their effort in killing off the marijuana crops it could cause higher tax problems that effect Medicaid currently under consideration by the State marijuana tax control board.Limo drivers cancel their planned DC rally and leave for California to protect this years crop. Wow, don’t think I would like to be in Politics for this years elections. Govenor Schwarzenegger indicated that if the Tea Partys membership keeps holding their rallies at our Marijuana burning fields they will have to be taxed for their free use of inhalants, prior to having them bused back to Arizona.
You can’t sue Cali; it’s a blue state! Go back to messin’ with da Gulf, homies.
From Lincoln to Reagan to GWB, Republicans have always been a BLUE state and Democrats have been a RED state. Check your past newspapers. Until Tim Russert changed it around and it became the norm, It was always that way.
well you can’t have shadow-marxists being represented by the color “red”. sheeple might, (might mind you) make a connection with soviet marxism and that they were called “reds” and realize that those “representatives of the masses” were really just transplanted communists.
Tax and effectively regulate (C 1984 me)…The “war on drugs” “proves” to the terrorist they will win…”the war on terror”(stupid as the name is)
“Terrorist piggyback the self sustaining drug routes” (C 1984 me)
I guess the “States” and writers (aka: “journalist”: a term that should be reserved only for those “skilled in the art” of the subject matter they cover and “can think for themselves”: virtually non-existent in the USA) never heard of a “constitutional convention”.
Just legalize the stuff. Tobacco is far more deadly anyway.
Not the point.
How about this then? Marijuana grown and sold within the state of California does not qualify as “interstate commerce”, therefore the federal government has no jurisdiction, short of amending the Constitution. Very much like Montana, which is asserting its 2nd and 10th Amendment rights with regards to the sale of firearms within the state.
“Not the point.”
No, but a more important point. The production and distribution of marijuana must be taken out of the hands of the ruthless criminals that are destroying Mexico and are a threat to us. (The ‘war on drugs’ was started in the Progressive Era. We didn’t have these laws in the first 130 years of our nation’s history.) Indeed, the laws and policies that the government takes up to wage its war on drugs increasingly threaten our liberty and security (i.e. asset forfeiture laws -where even when they don’t convict you often can’t get your property back, no-knock raids, etc.).
We need to repeal these drug laws for the same reason we repealed the Prohibition Amendment. If you think that’s crazy, ask yourself how was America able to prosper and grow all through the 19th century when opiates, cocaine, cannabis, etc. were all legal.
The prob is we are talking about california and prop 19. The cartels have the entire usa and beyond market. So really how would california legalizing effect that market. It will have zero effect on the cartels.. i repeat zero. Federal legalization may or may not have an effect on cartels. Currently and there is no federal legalization on the table.
If people would just stop and think about it, then California usually starts alot of things that eventually spread throughout the United States. Maybe if all the states made it legal then the cartel would be loseing alot of money. The states could make the money from taxing and controlling the sale of canabis.
Right. So their logic is is that if they leagalize weed and “Tax, control and regulate” it, that somehow the criminals already breaking the current laws and selling the weed and making a lot of money off of the weed will somehow feel compelled to comply with the state’s idea to control, tax and regulate weed? WHats in it for the criminal? Why would he ever give up his successful underground business of selling weed illegally and keeping all the profits to himself. Why would he subject himself to bueracracy when he doesn’t have to?
California is just stupidly liberal. They can’t get it through their thick skulls to cut spending drastically and get rid of the social services and green projects. All they can do is raise taxes and suck money out from whereever they can, even if that means legalizing weed in direct violation of federal law in order to tax more. Dumbasses!
You may be correct. So,as noted in the article,
Where better to try the experiment?
Pot is stupidly cheap. It’s very easy to grow. The price of illegal pot revolves more around the growers/dealers having to avoid prosecution than anything else.
So, dealers may have no compulsion to go legal, but their expensive illegal pot is going to have a real hard time competing with cheap legal pot.
Worse, how do you compete when Wal-mart is selling plants so you can grow your own?
Hail Azathoth!
Non Serviam. Our drug laws are the gasoline for the fire of our border issue. Our drug laws cost us….well, how much does is cost to keep millions of people in the legal system?
Arizona is just defending itself. We are at a point where we are creating laws to fix broken laws. IMAO, get rid of the drug laws and the welfare state and we’d not even need a border.
The reason “legalize, tax, regulate” will work for weed is this — maryjane is very easy to grow very inexpensively. It is, in fact, a weed! So a legal industry, even regulated and taxed, would make weed available to the consumer at one tenth the current street price — with better quality control. Criminal organizations would simply not be able to compete economically and would go out of business — for this one drug. It is for this reason that you don’t see thriving criminal enterprises selling illegal booze and cigarettes.
My thoughts are that decriminalization of marijuana will allow all users to grow it on their own without fear of prosecution, reducing demand and effectively killing the black market for it. I guarantee most potheads out there would love the idea of cultivating their own weed instead of buying it at inflated prices from their dealer or legal dispensary.
You’ve got it all wrong if you really think the pushers are not concerned about making money on weed. If weed is legal then people would not have to buy it illegaly. They could purchase it after a while at their neighborhood liquer store for a fourth of the price they would have to pay from the pushers. Drug pushers would not want CA-19 to pass because they would lose alot of their business.
Right. So their logic is is that if they leagalize weed and “Tax, control and regulate” it, that somehow the criminals already breaking the current laws and selling the weed and making a lot of money off of the weed will somehow feel compelled to comply with the state’s idea to control, tax and regulate weed? WHats in it for the criminal? Why would he ever give up his successful underground business of selling weed illegally and keeping all the profits to himself. Why would he subject himself to bueracracy when he doesn’t have to?
California is just stupidly liberal. They can’t get it through their thick skulls to cut spending drastically and get rid of the social services and green projects. All they can do is raise taxes and suck money out from whereever they can, even if that means legalizing weed in direct violation of federal law in order to tax more.
The taxes raised from thousands of jobs in hundreds of industries would dwarf the taxes raised by medical marijuana. Hemp was was farmed by both Washington and Jefferson, the Constitution and Declaration of Independence were drafted on hemp, as were the Guttenberg bibles and Ben Franklin’s newspapers. If the government is serious about cleaning the air and saving the forests they should encourage the use of hemp, it makes a better paper than wood, a fuel that burns clean, a very nutritious food, better clothing than cotton, can build a house from hemp that is sturdier than from wood for one third the cost of wood.
One or two months ago the Economist had a short well written article about living in a country with too many laws. I wish I could remember it verbatim but it went something like this:
When laws go mostly unenforced, on those occasions when they are enforced, the enforcement is arbitrary and subject to graft and corruption. Thus, the respect for law diminishes for both the civilian and the police officer involved. When the rules of a society are no longer uniformly applied, the glue holding together that particular society begins to disintegrate. —-
They went on and talked about crony capitalism, political cliques and selective enforcement as a social phenomena…
What I remember is this: This corruption will accelerate social unrest and anti-authoritarian behavior. This becomes a precursor to revolution. This is as un-stablizing as any financial disruption, indeed, these are two of the three legs of the stool upon which revolutions begin. The third leg is the collapse of infrastructure.
Economist, if quoted correctly, was close but no cigar.
The USA is a country, like Czar Russia, that has (or is getting close to) defined a set of laws that…effectively “mean” everyone is a criminal and the government can “legally” “get” anyone they want…
Connor;
So their logic is is that if they leagalize weed and “Tax, control and regulate” it, that somehow the criminals already breaking the current laws and selling the weed and making a lot of money off of the weed will somehow feel compelled to comply with the state’s idea to control, tax and regulate weed?
They most certainly did after alcohol Prohibition was repealed.
“834b. (a) Every law enforcement agency in California shall fully cooperate with the United States Immigration and Naturalization Service regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration laws.”
Right. And there we are with San Francisco (a “Sanctuary City”) being in violation of their own state laws, as well as Federal laws.
It took a Constitutional Amendment to give the Feds power to prohibit
the use of alcohol, and another to repeal that power. Where did the Feds
get the power to prohibit the use of Marijuana, or any other drug ?
Ask Scalia, he wrote a concurrent opinion.
Support in California for Proposition 19 seems to be increasing.
Yes, people are finally realizing that makeing it legal and taxing it will put money into the states budget. The only problem is keeping it out of the polititions pockets, and the special interest groups will have their hands out also. The state needs to earmark it for bringing down the deficit only.
Forget about the law, I want to see the the clueless slug who thinks he or she is going to open shop and cut into the local drug gangs profits and not suffer the consequences. These people kill cops in defense of their territory and profit, and some love child wants to take them on, yea right. And lets not forget Oakland police cannot afford to police any longer, and now will operate more like a private security firm. Brilliant!
You are silly and clearly do not understand how the drug gangs work. They only have power because the substance is illegal. First, there are plenty of nice places in Otown. Second, people can just go to Berkley. I do not think anyone is planing on moving into a crack neighborhood to open up a cannibals store.
Actually, Rock may be right. Big market retailers (Wal Mart, or your local supermarket) are not going to stock marijuanna plants, regardless of whether Prop 19 is passed. Why? For the reason stated in this article — it is still technically illegal under federal law and no large corporation is going to want to ignore the potential criminial liability (really, does some CEO in Little Rock want to risk a 5000 year prison sentence for “conspiring to sell” 5 tons of plants in the Home & Garden section?)
Now, unless Prop 19 calls for the government to sell the stuff directly (which is really the best solution) your pot is going to come from the same gangs currently selling it, or Joe and Jane hippy. And you’re telling me that the gangs won’t get involved to protect “their” turf? Why not?
By the way, take a look at this story:
http://www.signonsandiego.com/news/2010/jun/30/police-probe-3rd-la-marijuana-clinic-shooting/
There have already been several shootings at “clinics” in Southern California in the last month. Motive is not clear in all cases, but I would hardly be shocked if competition was not a potential factor.
I don’t think the idiot pushers and gangs are going to go and shoot up every liquor store, drug store, or mom and pop pot store for selling legal weed in the State of California to protect their profit. They will continue to sell crack and other drugs that hopefully will not become legal. If they do, then they need to be treated as terrorists and treated the same way we treat terroists in Afganistan.
They don’t have to shoot up every liquor store, or clinic or dispencery or what have you. They just have to shoot up enough to convince the rest of them that the risk isn’t worth it. Deterrence. It doesn’t just work on criminals you know,
Learn more about the campaign to legalize, control, and tax cannabis in California at http://www.taxcannabis.org. And become a fan of the campaign on Facebook at http://www.facebook.com/taxcannabis. Thanks!
I remember war on tobacco and second hand smoke, a heathcare risk, why not the same mentalty and objection towards Grass.
A key difference is that nobody tried to ban smoking in private, and this initiative is not suggesting allowing smoking pot in public.
However, the nature of smokers, whether of tobacco, marijuana or banana peels, is such that once the thin edge of the wedge is inserted, inevitably there will be some who will smoke it wherever the hell they want to and anybody who doesn’t like it can go somewhere else. Pretty soon it will be a free-for-all. Not only will the state not be able to control it, it won’t be able to tax it, either.
Just another plateau in the slide to third-world chaos.
@ Brian>> You are truly clueless, 15 years as a deputy is a major South Florida County, I know no one competes with their profit margin. And they are not about to willing let any encroachment on their trade, legal or otherwise. It is only sold legally if someone is willing to take the risk involved, and no one can cover their 6 24/7.
Tax and regulate – like the states did with alcohol, giving monopoly status to the same guys who were running illegal hooch. And then keeping competitors out through licensing, assigning of territories and by prosecuting any operators with the temerity to set up “illegal” manufactories and rival distribution systems.
Screw government. I’d rather deal with honest criminals.
The truth speaks for itself. There are already ton of medical pot stores all over the bay area. There are not horrible gang related violent acts against these places. Why would it change? The government designated selling places already works you have no clue. What unit did you work for? The free market will work itself out.
It all makes perfect sense. George Orwell’s newspeak is alive and well. what works is bad and must be stopped, and what’s bad for society is good and must be encouraged.
Soon after Sir Winston Churchill the end of the European part of World War II lost his position as prime minister, Churchill was in House of Commons members’ lavatory at a urinal. His successor went to an adjacent urinal to relieve himself. Churchill zipped up, moved to the most distant urinal and continued what he had been doing. His successor said, “Winston, I know we have political differences but there is no need to take personal offense.” Churchill responded that he didn’t take personal offense at all, but knew that under the new government anything seen running smoothly was likely to be nationalized.
Perhaps if Proposition 19 is passed and works, the resultant industry will be nationalized.
Donations to support Arizona’s defense against the DOJ immigration suit have reached more than $1.2 million, with donations from over 25,000 people.That amounts to an average of about $48 each.
If Proposition 19 passes and California is sued by the DOJ, there might be even more than that for California’s defense.
You clearly do not understand how our legal system works. It would be California suing the Feds. The feds have nothing to sue California over. I am not surprised you do not understand as this author is equally clueless. California may chose not to punish something, while Arizona is choosing to punish something the Fed claims to have sole jurisdiction over. The feds do not claim to have sole jurisdiction over a states drug laws. Each state has their own drug laws. The fed is claiming sole jurisdiction over immigration laws.
Legalize it, and the average american that uses it can grow it in their garden like tomatoes and totally bypass those same assholes.
I personally don’t care if weed is legalized. It is better than alcohol, in my opinion, from my run-ins between potheads and drinkers.
Citizens would get in the game and drive the bastards out of it, since the lure of high pray-offs will be gone with more supply legally available.
Pull the rug out from under the criminal bastards.
I believe in liberty, and that here in the U.S. we have the right to property, which includes our own bodies, and everything resultant of that body.
We already have DUI laws on the books, if that’s what worries you. That covers all sorts of substances.
Personally, it doesn’t bother me, and a lot of non-violent offenders will be let out of jail for use of a recreational drug. Good, I don’t have to pay for their butts.
I see nothing but benefits for legalization.
Never touched marijuana in my life. However, I will be voting for this. Hell, I may even grow it in my backyard. Why? Because it’s a big “F&$@ You” to Washington, that’s why.
People need to add more knowledge and this entire debate will become even more lopsided towards common sense and sanity… specifically: Cannabinoids are used naturally in the body for many many things. Imbalance to the internal system leads to all sorts of problems (depression, anxiety, rigidness of opinion, not being able to forget stressfull events, motor impariments, and the list goes on and on and on). The endo-cannabinoid system can be corrected through moderate usage of exo-cannibinoids, e.g. cannabis plant products. This debate for me is not only about personal freedom and state’s rights… it is about the overwhelming scientific FACTUAL base that people often times NEED cannabis to be truly normal and productive.
It is NOT ENOUGH to MERELY notice:
1) “hey… we have cannabinoid receptors in our bodies… neat-o!!”, or
2) We have the right to put in my body what we want
3) Pot helps people relax
4) Helps AD/HD individuals focus and chases away dozens of concurrent thoughts… basically making thheir minds work normally…
No… to make it ENOUGH once and for all EVERYONE needs to understand pot is NOT a tranquilizer or appetite aid… it is soooo much more. People need to KNOW about how our natrual endo-cannabinoid system works and what the symptoms are of imbalance. Pot is the ONLY plant that contains exo-cannibinoids. POT is the ONLY natural, safe, effective method to restore balance to a natural system. It should be used in moderation with exercise and diet and I know from personal experience a new wave of effective and peaceful people will be the result.
Yes on 19. Big time.
Whoever wrote this post is clearly not a lawyer; that’s a very poor explanation of preemption. Express preemption is when the federal statutes says exactly what it’s preempting – the CSA does nothing of the sort. Also, you missed the fact that section 903 of the controlled substances act specifically rules out implied preemption.
http://bit.ly/d8AEAD
Election Year Medicaid Medicare Inducement issues left open for November not openly discussed.Politics have gone from heated to man on fire thoughts. Also the Judicial dilemmas, since all are offically allowed to bear arms again, the big city Mayors are concerned about how the poor will be able to rearm themselves, and are looking for some type of financial relief from Federal State Medicaid programs to maintain their status quo.The higher courts face tough issues this term since making honest fraud legal, there agenda now turns toward making honest kickbacks and honest bribes equally as legal. This topic remains high as a shared issue by the medicaid medicare enrollment providers since they are looking to expand inducements past the complicated pregnancy stage.The DOJ has serious concerns that if legalized marijuana in California for medical reasons could be used as a inducement or inticement to help secure new enrollments for the Federal State Medicare Medicaid programs.The State of California is concerned that if the Feds step up their effort in killing off the marijuana crops it could cause higher tax problems that effect Medicaid currently under consideration by the State ‘marijuana tax control board’. Limo drivers cancel their planned Medicaid Cuts DC rally and leave for California to protect this years crop. Wow, don’t think I would like to be in Politics for this years elections. Govenor Schwarzenegger indicated that if the Tea Partys membership keeps holding their rallies at our Marijuana burning fields they will have to be taxed for their free use of inhalants, prior to having them bused back to Arizona.