California Prop 19 vs. Arizona’s Immigration Law

Pajamas Media ^ | July 15, 2010 | Dan Miller

[DanMiller]

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.

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.

[DanMiller]

Consistency in law enforcement is a vital part of the rule of law. Should Proposition 19 pass and should the federal government not seek to have it voided as unconstitutional, the inconsistency of its treatment with that of the new Arizona immigration law would be blatant and further demonstrate that law enforcement in the United States has become a matter of whimsical political convenience. That tendency must be reversed if we are to have any realistic hope of living under a government of law rather than of transient political and ideological whimsy. A good start would be for the federal government to seek dismissal of its recent complaint against the new Arizona immigration law.

[chaos_5]

On what specific grounds could the Fed's say this law would be unconstitutional?

I would go as far as to say the so called “war on drugs” is an unconstitutional over reach by the Federal government. Anyway, I hope it passes, if for no other reason than to give Big Sister the middle finger.

[DanMiller]

The attack would presumably be based the doctrine of federal preemption, implied, express or both. As stated in the article,

As noted in Gonzales v. Raich, federal statutes expressly prohibit the sale and use of marijuana as well as numerous other drugs, prescription or not, in ways not authorized under those statutes. Federal legislative attempts such as H.R. 2943 to permit the sale and use of marijuana for legitimate medicinal purposes have not been successful.

Even if the doctrine of express preemption did not apply to Proposition 19, the doctrine of implied preemption would hold for the simple reason that the stated purpose of Proposition 19 is to “regulate, control and tax cannabis”; it would regulate and control marijuana in ways quite inconsistent with the federal scheme. It would also encourage the use of marijuana and tax it. The additional tax revenues are needed by California, and were they not, the proposition would likely have less support than it presently does.

I don't think the DOJ complaint seeking to enjoin implementation of the Arizona law is well founded, but if the DOJ is correct in contending that it is, the same principles should be applied to the California proposition should it become law in California.

[moehoward]

Pot is small potatoes.

The Feds Az suit has zero credibility for the simple reason they give a pass to all those sanctuary cities that actually ARE usurping federal immigration law.

[chaos_5]

I see your point.

But, the Federal statues prohibiting the use/sale/production etc. are supported constitutionally through the interstate commerce clause. Since prop 17 is a law governing the local use/sale/taxation/possession etc. I think CA may have a (states rights) leg to stand on.

[DanMiller]

Thanks. I agree that California (as well as Arizona) should have a leg to stand on. Unfortunately, with the friendly nudge given by President Franklin the Good back during the New Deal -- he graciously offered the Supreme Court some additional members if the existing ones couldn't understand the Constitution as well as he did -- the Commerce Clause has been so expanded as to cover just about anything the federal government says it should; even the growing and personal use of marijuana for medicinal purposes in accordance with state law, within one state; no crossing nasty state lines and that sort of stuff. Even the growing of wheat on a farm for use solely on that farm became part of interstate commerce. I wrote about that here.