Medical Marijuana and Jerry Brown
The elections this November 7th will likely result in Jerry Brown being sworn in as California’s next Attorney General. The “top cop” is constitutionally charged with seeing that “the laws of the State are uniformly and adequately enforced.” To Dan Lungren, this meant fighting Proposition 215 in the courts to restrict its application. To Bill Lockyer, this meant/means letting local jurisdictions interpret Prop. 215 for themselves. How will Jerry Brown “see” California’s pioneering medical marijuana laws?
If his own words are any indication, then Brown will probably fall short of adequate. In a recent debate, Brown indicated that he would lobby the Federal Government and ask for cooperation regarding medical marijuana, however, he also said, “we are in a bind…Ultimately the federal law is supreme.” So, Brown, like Lockyer, will at first appeal to the Federal Government for comity, then, when the Federal Government sarcastically replies that Federal law does not recognize medical marijuana, Brown, like Lockyer, will take this reply as a loss of face—or “political capital,” or whatever—and stop working on the issue unless forced to do so, which will thereby force local jurisdictions to continue to haphazardly sort it out for themselves.
This local, case-by-case implementation of Prop. 215 has resulted in regulations that range from all-out bans to all-out welcomes, with most places leaning towards the former. Merced, San Bernardino, and San Diego Counties have gone so far as to file a lawsuit against the State arguing that Federal law preempts California’s medical marijuana laws. Contrarily, Santa Cruz has petitioned the Federal Government to recognize its ability to distribute medical marijuana under the Tenth Amendment. The problem here, of course, is that not all seriously ill people live in Santa Cruz. Some of them live in Southern California.
The People of California deserve better. They deserve equal protection of the laws. To the extent Lockyer has allowed local jurisdictions to ban what is unequivocally lawful, he has failed to fulfill his duty. Sadly, it appears this unbroken trend will continue with Brown, if he is in fact elected, because, despite his assertion indicating otherwise, there is no “bind” involving medical marijuana and the supremacy clause of the United States Constitution. Federalism is more complex than simple hierarchy.
The job of the California Attorney General is to see that every local jurisdiction in California complies with Prop. 215. The Medical Marijuana Program Act expressly allows for many ways to achieve this goal. The fact that the Federal Government does not recognize these laws is unimportant. The “top cop” of California is supposed to make sure that local officials comply with California law, not Federal law—that’s the job of the Attorney General who works, directly, for the President of the United States, not the People of California. Lungren, Lockyer, Brown, or any other State AG can no more enforce Federal drug laws over the will of the People than they could enforce the Federal tax code, the Uniform Code of Military Justice, Mexican law, Canadian law, etc. So, yes, Federal law is supreme, but that only means that the States cannot interfere with Federal law; it does not mean the States must march lock-step with the bidding (any bidding) of Congress.
California’s medical marijuana laws amount to an order to local law enforcement by their “ultimate legislators” not to subject seriously ill people and/or their caregivers to criminal sanction (from any source) on the sole basis of medical marijuana possession, manufacture, and/or distribution. In other words, local law enforcement is supposed to “stand down” in the war on drugs when it comes to medical marijuana. This distinction between action (subjecting to criminal sanctions) and non-action (not subjecting to criminal sanctions) means everything in the context of Federal supremacy and California’s medical marijuana laws. Nothing less than federalism itself is at stake. Candidate Brown does not understand this; hopefully the officeholder will.
Kenneth Michael White is an attorney and the author of “The Beginning of Today: The Marihuana Tax Act of 1937” and “Buck” (both by PublishAmerica 2004). Visit www.thebeginningoftoday.com for more information.
If his own words are any indication, then Brown will probably fall short of adequate. In a recent debate, Brown indicated that he would lobby the Federal Government and ask for cooperation regarding medical marijuana, however, he also said, “we are in a bind…Ultimately the federal law is supreme.” So, Brown, like Lockyer, will at first appeal to the Federal Government for comity, then, when the Federal Government sarcastically replies that Federal law does not recognize medical marijuana, Brown, like Lockyer, will take this reply as a loss of face—or “political capital,” or whatever—and stop working on the issue unless forced to do so, which will thereby force local jurisdictions to continue to haphazardly sort it out for themselves.
This local, case-by-case implementation of Prop. 215 has resulted in regulations that range from all-out bans to all-out welcomes, with most places leaning towards the former. Merced, San Bernardino, and San Diego Counties have gone so far as to file a lawsuit against the State arguing that Federal law preempts California’s medical marijuana laws. Contrarily, Santa Cruz has petitioned the Federal Government to recognize its ability to distribute medical marijuana under the Tenth Amendment. The problem here, of course, is that not all seriously ill people live in Santa Cruz. Some of them live in Southern California.
The People of California deserve better. They deserve equal protection of the laws. To the extent Lockyer has allowed local jurisdictions to ban what is unequivocally lawful, he has failed to fulfill his duty. Sadly, it appears this unbroken trend will continue with Brown, if he is in fact elected, because, despite his assertion indicating otherwise, there is no “bind” involving medical marijuana and the supremacy clause of the United States Constitution. Federalism is more complex than simple hierarchy.
The job of the California Attorney General is to see that every local jurisdiction in California complies with Prop. 215. The Medical Marijuana Program Act expressly allows for many ways to achieve this goal. The fact that the Federal Government does not recognize these laws is unimportant. The “top cop” of California is supposed to make sure that local officials comply with California law, not Federal law—that’s the job of the Attorney General who works, directly, for the President of the United States, not the People of California. Lungren, Lockyer, Brown, or any other State AG can no more enforce Federal drug laws over the will of the People than they could enforce the Federal tax code, the Uniform Code of Military Justice, Mexican law, Canadian law, etc. So, yes, Federal law is supreme, but that only means that the States cannot interfere with Federal law; it does not mean the States must march lock-step with the bidding (any bidding) of Congress.
California’s medical marijuana laws amount to an order to local law enforcement by their “ultimate legislators” not to subject seriously ill people and/or their caregivers to criminal sanction (from any source) on the sole basis of medical marijuana possession, manufacture, and/or distribution. In other words, local law enforcement is supposed to “stand down” in the war on drugs when it comes to medical marijuana. This distinction between action (subjecting to criminal sanctions) and non-action (not subjecting to criminal sanctions) means everything in the context of Federal supremacy and California’s medical marijuana laws. Nothing less than federalism itself is at stake. Candidate Brown does not understand this; hopefully the officeholder will.
Kenneth Michael White is an attorney and the author of “The Beginning of Today: The Marihuana Tax Act of 1937” and “Buck” (both by PublishAmerica 2004). Visit www.thebeginningoftoday.com for more information.
posted by Kenneth Michael White | 10:53 PM
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