Thursday, October 28, 2010

Proposition 19: What Will it Actually Do?

Question for you federal conflict preemption buffs out there: If Proposition 19 passes, will the Controlled Substances Act preempt it?

I have seen in a number of places people arguing that Proposition 19 removes some state-side enforcement concerning Marijuana, and as such does not conflict with federal law since the States do not need to have laws which enforce federal crimes (e.g. piracy). My question is: What about the fact that Proposition 19 affirmatively says that someone can possess up to one ounce of Marijuana, and federal law says someone cannot possess Marijuana. Is there a distinction between passing an act which says someone can do something versus abolishing an act which says they cannot do something?

My initial reaction is that Federal Law would preempt Proposition 19, and even if it did not, federal enforcement of Marijuana related matters would increase substantially. That would mean the salutary neglect that the Obama administration has shown California's medical marijuana dispensaries may come to an end. But as I said, that is my initial reaction, and I would love to hear from someone who has studied the relevant issues.



Blogger Armen said...

Huh? Prop. 19 doesn't COMMAND you to carry an ounce of pot. Are you saying it's field preemption? I don't follow.

10/28/2010 11:18 AM  
Blogger Armen said...

Here, page 18 of the PDF, beginning with subpart [3]. Looks like a solid summary of preemption jurisprudence.

10/28/2010 11:34 AM  
Blogger McTwo said...

"A person may X" and "a person may not X" seem like directly contradictory statements.

The alternative being "A person may not X" and "We have no law governing X."

There are very few laws which actively command citizens to do anything; are conflicting permissions not enough?

10/28/2010 11:37 AM  
Blogger McTwo said...

"Second, the Court has adopted a
“plain statement rule,” holding that a federal statute preempts
a state statute only when it is the “clear and manifest purpose
of Congress” to do so."

Isn't the clear and manifest purpose of the Controlled Substances Act not to allow persons in the United States to manufacture, distribute, or consume Marijuana without explicit permission from the Attorney General? It seems like Proposition 19 specifically conflicts with that.

10/28/2010 11:43 AM  
Blogger Armen said...

That's just false to begin with. Carrying X amount of Y is a crime. Carrying Z amount of Y is a crime. X>Z. Isn't that basically present drug conviction and sentencing regimes?

Most charitably, it's that the state will not punish you for Y, but the federal government will. That's the point of the piracy analogy, so you're stuck with that.

10/28/2010 11:45 AM  
Blogger McTwo said...

But with the piracy anaolgy, I doubt a state could pass a law explicitly allowing piracy so long as it is under a certain dollar amount.

10/28/2010 11:54 AM  
Anonymous Anonymous said...

I'm curious about the tax implications. Will the IRS let a marijuana dispensary take deductions?

10/28/2010 12:05 PM  
Blogger McTwo said...

This article makes a case for Armen's side. But it seems like it still does not adress whether there is a difference between passing a law explicitly permitting an activity versus abolishing a law which prohibits it.

10/28/2010 12:40 PM  
Blogger Patrick said...

McTwo, the reason is that it is a 'distinction' that does not matter. If it helps, try imagining how a party might end up in court over prop 19. It would likely be by way of federal prosecution. So how does preemption arise? This is not a situation where there is a conflict between state law and federal law, because it arises from a federal court prosecution for a federal crime. Nor is this a situation where state law purports to provide an affirmative defense to a federal crime, because prop 19 provides no such defense. In short, this is a situation where state law is totally irrelevant to federal law. And if they two are irrelevant to each other, there can be no "conflict" between them.

(sent from phone - sorry for typos)

10/28/2010 12:58 PM  
Blogger Patrick said...

. . . and 12:05, I'm pretty sure the answer is "yes." although it will also demand income tax from pot proceeds.

10/28/2010 1:01 PM  
Anonymous Anonymous said...

Patrick, you are a far better teacher than Armen, and not surprisingly, come off as less pompous and more likable. Thanks for the simple explanation.

Armen, I think I would rather have any host of venereal diseases than be stuck on a case or project with you. I'm sure you think your arrogance has served you well as a lawyer, but I imagine you could do just as well if people thought you were not only smart but pleasant to converse with. Doubtless your forming a witty response as you read this, but try instead to think for just a minute 'would it be that hard not to be an ass all the time?'.

- Not McTwo

10/28/2010 1:36 PM  
Blogger Armen said...

You're probably a Giants fan.

10/28/2010 1:39 PM  
Anonymous Anonymous said...

this vid unites Armen's comment and the thread's topic

10/28/2010 2:50 PM  
Blogger McTwo said...

"We have found implied conflict pre-emption where it is 'impossible for a private party to comply with both state and federal requirements,' or where state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995).

I understand your point, Patrick, as it applies to the first standard set out, namely that it is not physically impossible to obey both the State and Federal laws simultaneously if Prop 19 were to pass. I still think, however, that the explicit allowance of local governments to issue permits to manufacture or distribute Marijuana "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."

"This analysis requires that we 'consider the relationship between state and federal laws as they are interpreted and applied, not merely as they are written.' Furthermore, 'mere differences between state and federal regulation of the same subject are not conclusive of preemption ... the crucial inquiry is whether [state law] differs from [federal law] in such a way that achievement of the congressional objective ... is frustrated.'" Aux Sable Liquid Products v. Murphy, 526 F.3d 1028 (7th Cir. 2008). Based upon this, it would seem that the only way Proposition 19 would survive preemption would be if the local issuance of permits did not frustrate the objectives of Congress. That seems farfetched. Giving people pieces of paper saying go ahead and grow and/or distribute a controlled substance seems like it would frustrate the goal of limiting the manufacture/distribution of controlled substances (even if federal prosecution is still a possibility). But I suppose that would be an empirical inquiry?

10/28/2010 2:52 PM  
Blogger Bage said...

The way I understand it, porp 19 will not override federal law, but it will be up to the feds, not the police, to enforce their law. State's rights include the power not to enforce federal law. Unless I'm mistaken, feds cannot force a state's police officers to do anything and police cannot break state law. The feds are not in charge of local authorities.

10/28/2010 3:07 PM  
Blogger Patrick said...


The answer is "no." In the event a municipality issues permits, it federal law will preempt the ordinance authorizing the permit - not Prop 19. The trick is to think about how it would arise in litigation: the feds would prosecute someone in federal drug charges, and they would defend by saying "but my conduct is authorized by a permit, which the city issued pursuant to this local ordinance."

That may create a preemption issue with respect to the local ordinance. But that is not prop 13.

10/28/2010 3:13 PM  
Blogger McTwo said...

Ah, so the problem is not Prop 19's allowance of local ordinances, but rather the (possible) local ordinances themselves?

That makes sense. But wouldn't the looming specter of preemption prevent local ordinances from arising, effectively neutering Prop. 19? There would be no legal manufacture nor any legal distribution, since that is only allowed if local ordinance so permits.

10/28/2010 3:27 PM  
Blogger Patrick said...

. . . . and that's the whole point, McTwo. Regardless of what prop 13 says, there can be no legal manufacture or distribution, because to do so is and remains illegal under federal law. The issue doesn't turn on preemption - it turns (as it always has) on the federal statute that makes pot manufacture and distribution illegal. Prop 13 will not affect that statutory framework, much less change it.

In short, prop 13 isn't neutered; it was never fertile in the first place.

10/28/2010 3:44 PM  
Anonymous Anonymous said...

I think it is beyond a doubt that decriminalization is not preempted (in fact, under the 10th amendment, the Federal Government cannot commandeer the state officials to enforce Federal law). There are parts of prop 19 that are certainly subject to preemption (i.e. the licencing, taxing, etc. parts). However, that does not mean that the whole thing is unconstitutional, as you have to remember severability.

A court considering a preemption attack against prop 19, even if it concludes that some parts are preempted, will have to ask whether the part decriminalizing possession of less than one ounce is severable from those parts it concludes are preempted.

Indeed, Prop 19 has a severability clause:
If any provision of this measure or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of the measure that can be given effect without the invalid provision or application, and to this end the provisions of this measure are severable.

I do not see how it could conclude that decriminalization is not severable. Decriminalization is basically a selective repeal of a law, and is easily severable in purpose and effect from provisions such as taxing.

So, I think it is very unlikely that the meat of Prop 19 - decriminalization - would be invalidated on preemption grounds.

10/28/2010 3:49 PM  
Blogger Armen said...

Patrick, Prop. 19, not 13. Got property taxes on your mind?

10/28/2010 3:52 PM  
Blogger Patrick said...

Good point. Prop 13 is also un-preempted, though.

. . . and keeping a ferret . . . In a residence, for domestic, um, that's not legal either.

10/28/2010 4:05 PM  
Blogger Armen said...

Mind if I do a J?

10/28/2010 4:09 PM  
Anonymous Anonymous said...

To follow up on 3:49 and a separate post Patrick made above, I've got a question about enforcement.

I clearly didn't learn enough in law school about the supremacy clause as it applies to enforcement of criminal laws. My understanding, however, is that state police and judicial entities are under no obligation to proactively enforce federal drug law, so long as they aren't violating it.

So, maybe the sole effect of Prop. 19 (and/or legislature's recent decriminalization efforts--see ) would be that all prosecution and enforcement would happen at the federal level. From a pragmatic--and perhaps selfish--standpoint I think still that's worthwhile. California is broke. If the federal government wants pot to be illegal despite what the state wants, let the feds pay to investigate, prosecute, and punish pot users, and take some pressure of the California courts, prisons, and county governments. I'm not sure how to apportion effects between Prop 19 and legislature's preemptive (not that kind of preemption) effort, but even ignoring the tax windfall predicted by Prop. 19 proponents, shifting the enforcement burden ought to save money the state badly needs.

Summarized version: even if prop. 19 is preempted by federal law, it would force the feds to bear the burden of enforcement, and that would itself be worthwhile. Am I missing something here?

10/28/2010 4:20 PM  
Blogger McTwo said...


Isn't the meat of Prop. 19 regulation and taxation of Marijuana? I mean, it is the "Regulate, Control and Tax Cannabis Act of 2010" afterall. Governor Schwarzenegger already decriminalized an ounce of marijuana.

10/28/2010 4:21 PM  
Anonymous Anonymous said...

Well I guess that depends on what you mean by decriminalized? Under that definition speeding and many other traffic infractions are also decriminalized.

I think that something that is subject to a criminal infraction citation is still a crime. Compare, for example, parking citations in California, which while also infractions, are entirely civil. What is the significance? Well, you may have to report criminal infractions on your bar application (as opposed to civil citations) and you get less due process for civil infractions (not that you get much due process for criminal infractions in traffic court). Probably most significantly, Cops can generally arrest you for criminal infractions if they feel like it (and will do so if, for example, you don't sign your ticket), but generally cannot arrest you for civil infractions.

I guess the distinction is: de-penalizing, de-criminalizing, state-legalizing, and really legalizing.

As far as I am concerned, even with Schwarzenegger's act, it's still a crime and cops in California are likely to treat possession as they did before (i.e. Cops in Berkeley will ignore it and Cops in Mountain View will pull you out of the car, hand-cuff you on the side of the road, search your car, browbeat you, etc.). However, if it is truly made legal, then I see real change being likely to occur.

10/28/2010 4:30 PM  
Anonymous Anonymous said...

@1:36...totally agree. McTwo started a discussion about a hot topic and Armen's response was rude and condescending.

McTwo stated he/she wrote the post to learn more about the issue from people who know more about it. In the opening to the original post, McTwo wrote, "Question for you federal conflict preemption buffs out there: If Proposition 19 passes, will the Controlled Substances Act preempt it?" At the end of the post, he/she wrote, "My initial reaction is that Federal Law would preempt Proposition 19, and even if it did not, federal enforcement of Marijuana related matters would increase substantially . . . But as I said, that is my initial reaction, and I would love to hear from someone who has studied the relevant issues."

10/28/2010 5:12 PM  
Anonymous Anonymous said...

(4:20 here... heh)

4:30, I agree with you that making it an infraction isn't fully decriminalizing it. That's part of why I hedged about the effects of Prop 19 vs. the effects of the (recent) status quo, but the headline in the story I linked to obscures the issue.

The other question I tried to ask was whether Prop 19 would fully stop state law enforcement from doing anything about pot. To use your example, if Prop 19 passes but federal law is preemptive in the sense commenters are discussing above, would local cops in Mountain View still go around pulling people out of their cars for violating of federal drug laws?

10/28/2010 5:24 PM  
Blogger Patrick said...


I think that is one of the more interesting issues this proposition creates. Although the federal government cannot force local police to enforce its laws, local police can enforce its laws if they want to. It isn't difficult for me to imagine that Mountain View cop pulling people from their cars based on, um, "subjective criteria."

It would be ironic (and totally California) if it turned out that the voters who legalize marijuana inadvertently create the perfect weapon for racially selective law enforcement.

10/28/2010 5:31 PM  
Anonymous Anonymous said...

This is straight out of the California Voter Information Guide: Proposition 19, CON: "...ALLOWS DRIVERS TO SMOKE MARIJUANA UNTIL THE MOMENT THEY CLIMB BEHIND THE WHEEL." I didn't think that there would be too much of a negative impact until I read that. That's a disaster waiting to happen.

10/28/2010 7:55 PM  
Anonymous Anonymous said...

My understanding is that local police could not arrest people for marijuana possession after Prop 19, even though it is illegal under Federal Law.

Although, AFAIK, there is nothing under Federal law that would prohibit local law enforcement from enforcing Federal law (where there is not explicit prohibition or field preemption), California courts have already held that California LEO cannot enforce the Federal drug laws against drug owners complying with California law. This dispute occurred when we legalized medical marijuana in California (even though medical marijuana is equally illegal under Federal law as marijuana for fun). California courts have even ordered California LEOs to return pot that they have seized because it was protected under California's medical marijuana laws. See, e.g., here

10/28/2010 9:40 PM  
Anonymous Anonymous said...

While I was working at a firm over the summer, I was asked to summarize a bunch of cases for a white-collar defense partner. One of the cases was United States. v. $186,416 in U.S. Currency, 590 F.3d 942 (9th Cir. 2010).

This case basically obviates local LEOs ability to circumvent state legalization of marijuana by attempting to execute searches based on federal law. The court held that LA cops did not have probable cause to search a medical marijuana dispensary--that they were told repeatedly was operating lawfully and were provided evidence to that effect--under federal law.

To give the LA cops some credit, they knew that their search was likely illegal, but they also knew that once state court charges were tossed out--as they inevitably were--that the feds would come in, seize the property, and institute a civil forfeiture case, which they did. What's even better is that local U.S. Attorney's offices customarily provide a cut of the proceeds in civil forfeiture cases to the agency that helped them obtain the property...

The 9th Circuit ultimately tossed the civil forfeiture action because the underlying search by the LA officers was violative of 4th Amendment search/seizure because no PC existed under STATE law. Also, the director of the marijuana dispensary's affidavit claiming ownership of the proceeds from marijuana was out as derivatively tainted from an unlawful search.

I think this case effectively eviscerates Mountain View cops's--and other local LEOs--ability to do searches for marijuana unless they have PC it's higher than the legalized amount or another illicit act related to marijuana (farming w/out a permit, e.g.).

Even though it looks like Prop 19 won't pass at the moment, I think it would make the cost of enforcing marijuana laws against recreational users prohibitively expensive on federal agencies.

To me, the far more interesting question is whether the passage of Prop 19 would affect the underlying (shockingly anti-federalist for a Scalia opinion) jurisprudence in Raich v. Gonzales. Would it chip away at the idea that intrastate regulatory overhang of federal programs is legitimate?

10/28/2010 11:14 PM  
Blogger McTwo said...

Perhaps the LA County Sheriff Lee Baca could learn about the limitations on his department from our discussion.

Based on the state LEO research you guys did, does it only limit their independant action, or does it also limit their cooperation with federal LEOs?

10/29/2010 10:18 AM  

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