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Fact: If California Legalizes Marijuana, the Feds Can't Overturn It

Arguably the most plainly false argument to emerge in the debate over Prop 19 is that the new law could be "challenged in court" and overturned by the federal government if it passes. Obviously, opponents of marijuana legalization would like its supporters to believe their vote is pointless, but the truth is that Prop 19 would be just as legally binding as the medical marijuana law that came before it.

The latest example of this false claim comes from Bill Whitaker at CBS News:

Even if it passes, pot would still be illegal under federal drug laws, so it's likely Prop 19 will be challenged in court. That means the whole controversial issue could just go up in smoke.

This just isn't true. There is literally nothing the feds can do to change California law. If state laws had to be the same as federal laws, then the term "state law" wouldn't even be familiar to us. Each state has its own unique set of laws that are enforced by police and courts in that state. Federal laws are completely different and they only apply when you're dealing with federal police and federal courts.

Of course, it's also true that federal law can be enforced anywhere in the country, and that seems to be what's confusing people here. If Prop 19 passes, the closest the federal government can come to interfering with it is to make their own arrests and carry out prosecutions in federal court. This works fine for making an example out of someone they don't like, but it hardly lessens the impact of a major change in state law. Marijuana would remain legal in the eyes of California police, and that's what counts. Just look at the medical marijuana situation, where the feds made some busts, but still failed to prevent a massive industry from forming, because the feds can't realistically take over the role of local law enforcement.

It's critically important that voters (as well as journalists) understand how this works so that everyone knows the facts before the vote on November 2nd. If Prop 19 passes, the issue cannot and will not "just go up in smoke," no matter how badly the drug warriors in Washington, D.C. wish that such a possibility existed. Please consider contacting CBS to suggest a correction to their coverage.

Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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The feds can't void anything.

Thanks for posting this. I've been writing many news outlets about this exact same mistake they make, assuming the feds could somehow void 19 in court. It's craziness! I can't believe almost every "professional" journalist gets this fed issue wrong when they write about 19. Of course, none of them have corrected their mistakes. In the eyes of the feds there is no such thing as medical marijuana so all of the 14 some medical marijuana laws in the 14 states are interpreted by the feds as recreational laws. Yet, none of these medical mj laws have been voided through the courts that I know of, and the feds have had 14 years now to do so. It's not going happen. The sad part is almost no one from the Yes on 19 campaign or any of the mj lobbies have made this point a big part of their talking points or rebuttals. It should have been addressed clearly in the voter guide as well. 

What about....

I see your point but what stops the federal government from using the same game they played to get the drinking age to 21 in all states.  Just stop funding the state unless it complies with federal drug laws... You'd have to make a lot of revenue from pot smoking to replace federal funding. 

You get rid of the federal

You get rid of the federal funding.  End the Fed!

Well, it is possible that the

Well, it is possible that the Federal Government might challenge the law in court.  But they wouldn't have much of a case, and even if they lucked out and got a judge heavily biased in their favour, it would certainly be shot down on appeal.  But still, I could see the DEA trying it anyway, simply in the hope that they might scare the state into changing the law themselves.

Thanks for bringing this

Thanks for bringing this point I up. I was definitely one of those people who thought that it would be challenged in court.  

SCOTUS has already done what they can

 When the Supreme Court took away our Right to a Medical Defense and/or using the State Law as a defense when busted by the Feds they did enough damage to our Civil Rights. That should be no surprise coming from the Roberts Court
 The only other real damage I can see them doing is by invoking the Commerce Clause. SCOTUS has been known to use the Commerce Clause like DAs piling on charges just because they can.

 What I wish one of better reporters would look into is why the DEA is harassing Medical Marijuana outlets in Ca. while leaving the rest of the 14 States alone for the most part. It has to have something to do with Prop.19 imho. While they are reporting on that story they can inform the Public that Atty.Gen.Holder fibbed when he claimed the Feds would stop busting legal Medical Patients and Providers. We have seen no drop in busts in the last yr and if you don't believe me just call the AGA for Northern or Southern Ca.

  Yesterday the Rand people put out a real BS study on the money the Mexican Cartels would lose if Prop.19 passes. After yrs of the CW being that Cannabis was approx. 60% of the Cartels profit Rand has decide it is much much lower a number and therefore won't the Cartels will barely feel it. What the Rand study does say is that the laws were changed nationwide then the whole study is void because in the longrun the legalization would hurt the Cartels just as has always been said by proponents.

Every anchor wants to be an

Every anchor wants to be an expert on the subject. Watching them get schooled in arguments with people in the know was pretty fun at first but now it's just kind of pathetic.
Legalize NOW.

Even if it was challenged in court, why would that stop you from voting yes? Supreme court cases change laws.

Commerce Clause

Here's another equally surprising yet factual headline: "Bear Shits in Woods."

The Supreme Court has invoked the Commerce Clause in defense of the CSA by saying that even if you grow your own and consume it in your own home, you are still affecting the national (black) market because you are not spending your money in that market.  By NOT buying in that market you are having an impact on it.  And of course if you buy or sell in that black market, then you are involved in it.  In other words, the justification for the CSA is that it protects and supports the national market for illegal drug dealers.  At least according to the Supreme Court.

But I've never understood how that applies to the medical market.  It is entirely self-contained within a particular state, and in no way part of the national (inter-state) black market.  How can the Commerce Clause apply to a market that is strictly intra-state?

Seems the same would apply to a legal recreational cannabis market within a state.  I don't think the Supreme Court could invoke the Commerce Clause to protect the Mexican black market that would be impacted by legalization.  That's a stretch even for a conservative court.  But I'm not a lawyer, and if there's a way to distort the intention of the Constitution to justify action by the federal government, they will find it.

Federal Government to Contest Civil Rights?

Prop 19’s passage does not violate anyone’s civil rights.  Rather, it establishes new rights, or at least a partial restoration of rights since the 1937 marijuana tax stamp act took them away.  Prop 8, however, as well as Arizona’s neo-fascist ID verifications; both violate people’s civil rights.  Civil rights violations can be challenged in court.  Challenging freedom is much more difficult.

Much like the federal court decision against Prop 8, the appropriate legal standing necessary to bring a lawsuit against Prop 19's passage will be critical.  Because Prop 19 promotes civil liberties as opposed to curtailing them, there can be no aggrieved accuser other than a federal government that’s lost its grip on reality.


The bull is really cooking now that the election is at hand

The bull is really cooking now that the election is at hand. No time to sort truth and bull. Hey did you hear about the ganja party Arnold is throwing the weekend after the election? Saturday at the governor's house 7pm till ?? It's bring your own bud though!

19 is setting up the makings

19 is setting up the makings of an historical showdown between the State's rights vs. Federal rights.  Sweet!Light up a big one and watch the cannabis circus unfold.  You go California!  The Feds can prohibit pot until the cows come home, most of us don't give a damn and we have learned to live and thrive in this reefer madness insanity.  We exist in a warp where reason and fact mean nothing against lies and distortions.  We have learned that people do not need government permission to make choices in their lives.  We have learned that what a responsible adult chooses to do in his home, while harming no one else, should never be the concern of our government.  We have learned contempt and loathing for the law, lawmakers and the enforcement cartels.  We have learned that you can lead a politician to truth and knowledge but they seem to prefer ignorance.  For most of us it's, why bother.  Do what makes you happy while hurting no one else, make some sweet cannabis tea, fire up a bowl, just be discreet and enjoy the show.

Supremacy Clause

I'm not a US lawyer, but doesn't the Supremacy Clause of your Constitution (as interpreted in McCulloch v. Maryland) allow the federal DoJ to sue California to have the law struck out as unconstitutional?

Of course, this is no reason to vote against Prop 19: the public outrage that would ensue would certainly help advance the cause for marijuana legalisation, especially given the current political climate. The DoJ may not even choose to go down this path. But if I'm right, claiming that the Feds can't overturn Prop 19 is the same sort of intellectual dishonesty the anti-drug lobby is frequently guilty of. The Supremacy Clause argument is immediately obvious to anyone with a cursory understanding of the US Constitution, so your article loses credibility by failing to address it.

The Supremacy Clause is not

The Supremacy Clause is not implicated because California would not be overruling the federal Controlled Substances Act, but rather would be eliminating it's own state laws against marijuana.  California cannot interfere with the federal government enforcing the CSA, but it is under no obligation to devote money and manpower to enforce the CSA or to enforce a state-level analogue.  Indeed, the Supreme Court has held that the federal government is prohibited from "commandeering" state officials into enforcing federal law.

Not a Fact. Scott probably half-wrong.

 Its important to be a little more detailed/nuanced here. We sometimes shorten what Prop. 19 does to say it "legalizes marihuana." It actually does more than that:

 Per Wikipedia it:

 1.) Legalizes possession

 2.) Allows government to regulate sale of Marihuana.

 3.) Allows state to tax


 We should all agree, part 1 is constitutional. While drug possession is illegal federally, states are not obligated to enforce it, nor make it illegal under state law.


 However, the second and third sections of this scheme probably fail. While state governments don't have to enforce federal law, they must obey federal law. Therefore, they cannot grant licenses to sell marihuana, and they probably also can't tax it. The problem is this would be contradictory to federal law and the Supremacy Clause would apply. States cant give someone permission to violate federal law.

 Furthermore, any record of anyone reporting income or requesting any sort of license or registering with the State would be something the Feds could subpoena. They might not go after the people possessing it, but stores selling it?

Perhaps that is another reason why

Washington State's proposal sticks to merely ending all criminal penalties for cultivating, transporting, selling, possessing and using cannabis for all 18 or older.  The other reason is, in WA initiatives are limited to addressing a single issue, so adding in regulatory language or imposing any taxation would violate that law and the law created by the initiative would be deemed unconstitutional under the State Constitution.  The initiative, which failed to make the ballot this year (but will certainly make it next year), was penned by WA state attorneys explicitly to avoid that single subject problem, and in doing so have made certain it avoids the federal problem you brought up, too.

borden's picture

Moonrider, Unfortunately


Unfortunately this model of legalization initiative is wide open to the most politically potent attacks the opposition would want to make against it. In my opinion they'll have a field day, if it gets to the ballot.

As far as the single issue argument, the question is one that would get looked at, but it's not at all clear that regulation in a legalization initiative would be seen as a second topic. It's more likely (though not 100% certain) that it would be seen as related to the repeal of penalties through a "rational unity" an elaboration on the primary topic.

It's true that by only including repeal of penalties, the language avoids even having to have that question considered in court, but it does so at the cost of making it probably unwinnable at the ballot (in my opinion).

Fed. vs. State

Seems like I remember the state of New York legalizing alcohol before Congress repealed its Constitutional prohibition against alcohol. If California politicians do not like the will of the voters, then if elected, they should just step and resign. Step on down. The Prohibitionists see a massive green tsunami coming at them in their sleep. They are panicking. And rightly so.

Arizona Immigration Law vs Prop 19

It should also be noted that the Justice Department is currently suing the state of Arizona over its controversial anti immigration law. Why? Because state police were acting as federal border agents. It simply isn't within their authority to do so. The same goes for state police who wish to start working as DEA agents. If Prop 19 passes it will be up to the Federal government to make arrests, and arrests conducted by a state agent would immediately be challenged as illegal. If the Federal government wishes to take on every single cultivation and possession case then they are going to need to have a lot of time and resources. They know that they couldn't possibly handle the load so they are trying to skirt the issue and act as if State agents can immediately start enforcing Federal laws. They can't.

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