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On Mj Laws, Respect States' Rights


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US PA: OPED: On Pot Laws, Respect States


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URL: http://www.mapinc.org/drugnews/v13/n151/a05.html

Newshawk: http://www.drugsense.org/donate.htm

Votes: 0

Pubdate: Tue, 02 Apr 2013

Source: News-Item, The (PA)

Copyright: 2013 The News Item

Contact: jake_b@newsitem.com

Website: http://www.newsitem.com/

Details: http://www.mapinc.org/media/3556

Authors: Erwin Chemerinsky and Allen Hopper

Note: Chemerinsky is dean of the UC Irvine School of Law, and Allen

Hopper is criminal justice and drug policy director of the ACLU of

California. They wrote this for the Los Angeles Times.

Page: 4




It may be surprising, but no state is required to have a law making possession of marijuana, or any drug, a crime. Therefore, any state can legalize some or all marijuana possession if it chooses. The federal government, if it chooses, can enforce the federal law against its possession and use, but it is up to each state to decide what to criminally prohibit, based on the 10th Amendment.


This basic insight has been lost in the public discussion about whether the initiatives legalizing possession of small amounts of marijuana passed by Colorado and Washington voters in November are preempted by federal law. The two states will soon finalize regulations to implement those initiatives, including how to tax and regulate marijuana. U.S. Attorney General Eric H. Holder Jr. told a recent meeting of state attorneys general that the Justice Department review of the initiatives was winding down, suggesting an imminent decision as to whether it intends to challenge the initiatives as being pre-empted by federal law.


This month, eight former heads of the Drug Enforcement Administration urged Holder to enjoin the new state laws. Peter Bensinger, DEA chief from 1976 to 1981, told the Associated Press: "This is a no-brainer. It is outrageous that a lawsuit hasn't been filed."


Is it outrageous? Or is it just an intelligent assessment of the legal landscape?


The pre-emption doctrine is based on the supremacy clause of Article VI of the Constitution, which makes federal law "the supreme law of the land" trumping conflicting state laws. The question, then, is whether there is a conflict between the federal government prohibiting small amounts of marijuana and some states not doing so.


There is not a conflict when one level of government prohibits something but another level of government does not. An easy illustration is that murder is a crime in every state, but, except for very specific circumstances, it is not a federal crime. No one would say that there is a conflict. Likewise, a state can decide that certain conduct does not violate state law even if it offends federal law. It is then for the federal government to decide how, if at all, it wants to enforce the federal law.


Several other states, including California, have laws making possession of up to an ounce of marijuana an infraction punishable by a fine, even though under federal law, it's a misdemeanor punishable by up to one year in federal prison. Similarly, 17 states and Washington, D.C., have laws that allow possession of marijuana for medical purposes; there is no such federal exception. Although the federal government can enforce the stricter U.S. law in states that have decriminalized possession or have medical marijuana laws, it has never acted to have those state laws invalidated based on the preemption doctrine.


Simply put, no state has to have a law prohibiting marijuana, even though federal law does. And if a state does have such a ban but wants to repeal it in whole or in part, such as for possession for medical reasons or for small amounts, it may do so.


Because states could remove all criminal sanctions for marijuana, this more limited removal of some state sanctions cannot be preempted, claiming a conflict with federal law. Beyond the legal arguments, there are policy reasons for the federal government to not interfere with the Colorado and Washington laws. An important feature of federalism is that states are empowered to serve as laboratories for experimentation with social policies. As the nation embarks on perhaps the most significant public debate about drug policy since President Nixon declared the war on drugs, Washington and Colorado's experiment should be allowed to go forward. The country can then assess whether it succeeded or failed.


Let's hope Holder's response will be more nuanced and respectful of the states than that urged by the retired drug warriors.

MAP posted-by: Jay Bergstrom


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States need to make glaring laws that legalize cannabis. Clear statements, carved in stone, with few words that are easy to understand. Why? Because of the rabid dogs in law enforcement that take anything less as a wink and a nod that it's still illegal and they can continue on getting their 'rushes and grins' at our expense. Make no mistake, there are great cops out there that don't want to use us for their sick entertainment. You don't notice them much. These decent cops would have more power to help their fellow misguided cops to do the right thing if we give them the laws to point at. They could police themselves then.

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