California Senate to Feds: Back Off!
04. Sep, 2009 
20 Comments
by Michael Boldin
My home state of California usually interacts with the federal government by genuflecting. But, on a few issues – very few, that is – they’ve got plenty of backbone.
Most notably, marijuana.
Last week, the California State Senate passed Senate Joint Resolution 14 (SJR14), calling on the federal government to end their “interference in state medical marijuana laws.” If passed by the Assembly, it will be sent on to Congress and the White House as an official position of the California legislature.
THE INTERSTATE COMMERCE CLAUSE
Under the Constitution of the United States, the federal government is authorized to exercise only those powers which have been delegated to it by the People. This is affirmed by the ratification of the 10th Amendment, which states, ”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The federal government has often taken the position that it can still wage its “war on marijuana” under the “Interstate Commerce Clause” in Article I, Section 8 of the Constitution. But, some experts see this kind of explanation as quite a stretch.
Most importantly, the Interstate Commerce Clause, as understood by the founders, was meant to empower the federal government to regulate trade among the states. One of the chief concerns this addressed was preventing States from imposing restrictive taxes on goods coming from other states.
The Founders, however, made it quite clear that this would not authorize the government to take over fields like agriculture. Clearly, this hasn’t stopped today’s politicians and judges from turning that original meaning nearly upside down.
FIREARMS TOO
While the stand off on state marijuana laws has been going on for over a decade, firearms is a new front in the Commerce Clause debate.
This year, both Montana and Tennesse passed a “Firearms Freedom Act” taking the position that guns manufactured in state, sold in state, and kept in state – would not be subject to federal laws and regulations under the Commerce Clause.
So far, the only response has been a sternly-written letter from the assistant director of the ATF stating his position that federal law supercedes state law – and the federal government intends to continue its current regulations.
A coalition of the Montana Sports Shooting Association and the 2nd Amendment Foundation is planning a court challenge “to the federal government’s insistence it will regulate those items.”
LEAVE IT TO THE STATES
According to Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), this is an issue that should be left up to the states. He said, “The federal raids on medicinal marijuana providers have dissipated since Eric Holder was sworn in. That said, the DEA has continued to be involved in a handful of raids in California — each time in cases that appeared to have been solely state matters (e.g., providers were alleged to be involved in state tax disputes or in violation of local ordinances), particularly based on the fact that federal charges were never filed. If the Obama administration is really serious about leaving this issue solely up to state governments — as it should be — then the federal DEA ought to be leaving the voters of the thirteen states that have enacted medical marijuana policies alone.”
PROMISES MADE, PROMISES BROKEN?
As more states have passed medical marijuana laws, it’s become increasingly difficult and costly for the federal government to enforce its laws. The Obama Administration has promised to end interference in state medical marijuana programs, but numerous federal raids since January have California lawmakers concerned.
SJR14 Sponsor Senator Mark Leno said that, “Patients and providers in California remain at risk of arrest and prosecution by federal law enforcement and legally established medical marijuana cooperatives continue to be the subjects of federal raids.”
In August, for example, federal agents conducted multiple raids on medical marijuana providers. On August 12, the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Internal Revenue Service, and local police carried out a paramilitary-style raid on a medical marijuana provider in Los Angeles.
The reason given? The government claimed that the raided facility had “failed to submit state sales tax revenues.”
Where the Constitution permits federal agencies to enforce state tax code violations, I’ll never know.
A CONSTITUTIONAL REPUBLIC?
Supporters say that the reduction of raids under the Obama administration is a good thing. But, according to noted Constitutional historian Kevin Gutzman, leaving the fate of such issues to the decision of one sitting president or another is a dangerous precedent.
“Attorney General Holder’s decision to halt the long-standing federal policy of prosecuting medical marijuana distributors is a welcome development,” said Gutzman. “However, so long as the Federal Government does not recognize the states’ Tenth Amendment right to decide the issue of medical marijuana, a return of the bad old days when patients suffering crippling pain were denied this medical treatment is always one election away.”
In other words, any society that rests the fate of its liberty on the “goodness” or “badness” of its leaders is in serious trouble.
“That,” said Gutzman, “is the difference between a democracy and a constitutional republic.”
Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.
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Yeah, in the Raich case the supreme court claimed that marijuana was ok to regulate under interstate commerce even though supposedly there’s no such thing as marijuana commerce that’s legal in this country.
What a sham.
Hmmm, let’s see. Both Thomas Jefferson and George Washington grew hemp. while it’s cleraly not the same as mj, the government doesn’t see it differently and criminalized it too.
when will conservatives get their head’s out of the a&& and stop believing in “state sovereignty” just for certain issues? this is a big one and it sets precedent for them to invade our rights in other areas too. Guns anyone?
I am waiting for the day when a State, any State stands up to surprise Federal raids When state police refuse to cooperate with federal authorities in pursuing and prosecuting individuals for abiding by state law that conflicts with federal law. When a citizen can count on their state police to protect them… But I’m sure this is well wishing.
I am VERY conservative, and welcome both liberals and conservatives to the tenth amendment movement, regardless of the reasons behind why you join. In fact, the variety of reasons why people join this movement are all the proof you need as to why the tenth amendment is so vital to our nation. The “pick and choose’ legal approach that both statist liberals and statist conservatives use to justify eroding our rights as citizens is constitutionally bankrupt. As long as statists are in control, the tenth is the thin line protecting our rights and needs everyone to defend it.
I personally have no problems with the morality of mj, even for recreational uses — you should be as free to do what ’succeeds’ as to do what ‘fails’ — only then are you truly free. mj holds no appeal for me, but who am I to judge others?
Looking forward to a day when if you feel that something should be legal, you should be free to move to a state where it is, or campaign for its legality in your own state based upon the success in other states or whatever you choose as criteria.
I’m solidly conservative myself (as anyone that’s hung around this site already knows:) ), but, while I have no personal use for marijuana, if you want or need to use it, that’s fine with me. Provided one caveat. That being that you can use it all you want so long as it doesn’t interfere with or harm someone else.
What say we treat weed like beer? Let the States handle it and kick the Fed out of the issue.
i believe the state has “backbone” only because of the possible revenue from taxing marijuana.
but
— certainly a step in the right direction, whatever the motives.
Thank you Michael for a well thought out essay on this important issue. And I’m thrilled to read the tone and content of many of the comments.
“What say we treat weed like beer?”
Good question, and it’s a premise in my book, “Marijuana Is Safer: So Why Are We Driving People to Drink? (Chelsea Green, 2009). Given an objective comparison of the two substances and their impacts on both the individual consumer and society at large, it’s an entirely valid inquiry.
Quite literally, alcohol is an intoxicant; cannabis is not.
The word intoxicant is derived from the Latin noun, toxicum, meaning: “a poison.” It’s an appropriate description for booze. Alcohol is toxic to healthy cells and organs, a side-effect that results in some 35,000 deaths per year. Ethanol, the psychoactive ingredient in booze, is carcinogenic following its initial metabolization, which is why even moderate drinking is positively associated with increased incidences of various types of cancer. Heavy alcohol consumption can depress the central nervous system — inducing unconsciousness, coma, and death — and is strongly associated with increased risks of injury (Booze plays a role in about 41,000 fatal accidents per year, according to the U.S. Centers for Disease Control.) and acts of violence. In fact, according to the federal Bureau of Justice Crime Statistics, alcohol consumption plays a role in approximately one million violent crimes annually.
By contrast, the active compounds in marijuana, known as cannabinoids, are remarkably non-toxic and actually mimic chemicals naturally produced by the body, so-called endocannabinoids, that are vital for maintaining one’s proper health. Unlike alcohol, marijuana is incapable of causing fatal overdose — cannabinoids do not act upon the brain stem — and its use is inversely associated with aggression and injury. Finally, lifetime use of cannabis is not associated with increased risk of mortality or various types of cancer — including lung cancer — and may even reduce such risk.
Of course, none of this information is meant to somehow imply that one substance is ‘good,’ and the other is ‘bad.’ Rather, comparing and contrasting the effects of cannabis and alcohol provides objective frame of reference for Americans, many of which may be personally unfamiliar with the effects of marijuana or may be uneducated to many of the effects of alcohol. It’s not meant to imply that booze ought to be prohibited, but to question why our laws criminalize those who would elect to use the objectively less harmful of the two.
For those who may be interested, you can read more about the issue at: http://www.marijuanaissafer.com, or check out the archived audio interview between Michael and I on the tenth Amendment Center’s podcast!
Hello Mr. Boldin,
I have been promoting your web site and have put a few questions out.
I really do like this site and do believe that it is important in that the Federal Government is on a Huge Power Grab.
I have another question that you may be able to answer.
Since you are from California, I am wondering why California’s State Government is Not participating in the Declaration of State’s Soverignty Movement.
Can you shed some light on this matter?
Thanks,
Just Wondering
The 10th amendment is clear. p.s. I do not use pot or condone it’s use BUT!!!!! It is not their(fed) business.
If the feds continue to violate the 10th Amendment then California’s tax enforcer’s will need to identify all Federal employee’s working in the state and come up with a special sumptuary taxation law that places increased taxed burden on all people working for the Federal government living in the state. Also an annual tax increase would be continued until they put an end to the civil rights violations they are responsible for in the state.
While I appreciate the comments about 10th A. protected state sovereignty in this blog, I am disturbed that I don’t see the problematic 16th and 17th Amendments being scrutinized more often in 10th A. discussions. Please consider the following.
US citizens have evidently not been teaching the Constitution and its history to their children for many generations. Consequently, as a combination of widespread constitutional ignorance, particularly ignorance of state sovereignty, along with the careless use of voting power, citizens have been unthinkingly keeping state legislatures and the federal senate filled with “leaders” who are as oblivious to state sovereignty as the voters are. And this has been going on since before the ratification of the ill-conceived, anti-state sovereignty 16th and 17th Amendments.
Picking on California, neither Californians or their state “leaders” seem to be aware of the following case precedent established by Chief Justice Marshall. Based on 10th A. protected state sovereignty, Justice Marshall found that the federal Congress is not authorized to lay taxes based on powers reserved to the states.
“Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” –Chief Justice Marshall, GIBBONS V. OGDEN (1824) http://supreme.justia.com/us/22/1/case.html
But the consequence of having both federal and state government “leaders” who are not doing their jobs to protect state sovereignty is this. Corrupt federal politicians have been able to take special-interest control of the country via constitutionally nonexistent federal government powers, powers reserved to the states. And why not, since the people and their “leaders” no longer know the Constitution and thus don’t recognize the illegal usurpation of state powers by the federal government when they see it?
As a side note to the corrupt federal government, to hear some conservatives talk, their idea of the pursuit of happiness seems merely to always find something to complain about concerning the federal government.
Getting back to California (applies to the other states too) we’re in a situation where state lawmakers, inexcusably ignorant of state sovereignty, are routinely begging the corrupt federal government for funding based on constitutionally unauthorized federal taxes. In other words, state sovereignty-ignorant state lawmakers and federal senators are not doing their jobs to protect citizens from the corrupt feds by preventing illegal federal taxes from leaving a state in the first place. (Did you hear that bankrupt California?)
Finally, the following link provides more analysis as how state sovereignty-ignorant voters have shot themselves in the foot with big, corrupt federal government, IMO, as evidenced by the 16th and 17th Amendments.
http://www.ronpaulforums.com/showthread.php?t=199792
Hooray for California! They need to get the hell out of our lives!!!
I’d be interested to see what would result if the DEA pulled a raid in Sheriff Mack’s county.
It is interesting to see that the Federal Government carefully picks and chooses the cases it wants to make against the states. It is also interesting to see that when it does pick one, it usually wins. In this case, for the good or bad – I will not judge, marijuana in California is a very special case due to the proximity with Mexico, the current border situation, and the propensity of many Californians to favor the drug. In my opinion, this is clearly a state issue that has to be solved one way or another by Californians and their elected leaders.
The issue can be reverse contrasted to the case of tort reform in which the Federal government has chosen to “overlook” or not engage in HR-3200. It would seem to make logical sense to reform this area of health care since malpractice insurance costs each and every licensed health care provider between $25,000 and $160,000 yearly depending on risks with brain surgeon being on the top of the heap but have you ever heard of anyone filing a malpractice suit in Federal Court? No, and why not? Medical practitioners are enabled and licensed by the states and not by the feds. States still maintain control over this (probably because of lawyers). Unless state control is usurped, the Federal government does not have jurisdiction over medical actions and cases which are currently settled in local or state courtrooms. A major infringement of the 10th Amendment would occur if tort reform were attempted at the Federal level. This needs to stay with the states. By doing so, it opens the opportunity for states to compete for the very limited supply of Doctors and medical professionals (before Texas gets them all). So, if you have it, you can make a good case to keep it but once you loose it, it’s a hard road to ever get it back.
The 10th Amendment may be of help to California. This is basically a drug issue and, if California were to assert it’s power to control the usage of any and all drugs within its borders, notwithstanding the FDA, it would then have the legal control it needs to determine the suitability and fitness of drugs in general. This is a little stronger than the Montana / Tennessee firearm act and could possibly impact the Medicare drug plan but it does appear to be the necessary first step in order to make sure the people and government of California are really ready to support the freedom to decide for themselves about marijuana.
After that, the next issue of course is the legality of sale and the Commerce Clause. If Californians were to only use marijuana grown within their borders they might have a case. It would still, no doubt, be illegal to export to other states or cross state lines while in possession but that might not be that bad. As for trade with Mexico, since Mexico is not a state of the union, it would appear that the Commerce Clause would not apply.
John L Sulak September 4 at 6:39pm
All states should stop takin’ government handouts and institute State Sovereignty. That’s what our founding fathers intended and then shysters started comin’ over in droves!!!
http://thdumboleasttexasboy.blogspot.com/
I think that it’s an even better argument to point out that it’s not as if the point that drug regulation is a matter of state jurisdiction is a new point.
When Prohibition happened, we didn’t just pass the Volstead Act. We knew that the federal government didn’t have that power, that it was a matter of state jurisdiction. We first had to pass the Eighteenth Amendment that gave Congress the power to ban it — that is, shifted jurisdiction of alcohol from the state to the federal government — and only then passed the Volstead Act, which banned alcohol.
In the case of drugs, pro-War-on-Drugs types have completely ignored this constitutional and legislative precedent and simply asserted that they can ban whatever substances they want. In Gonzales v. Raich, the Supreme Court bent itself over backwards to guarantee the federal government its claimed ability to ban drugs, making such absurd claims as that any commerce, even that which involves only one state, is covered by the Interstate Commerce Clause. As Justice Thomas pointed out, this is effectively an almost unlimited grant of power to the federal government, and makes a mockery of the idea that federal powers are at all restricted.
Funny the land of fruits and berries fights the Fed on Pot but falls right in line with every other socialistic agenda from the Obomination.
We are all watching as the California Enviro Wackos change one of the most veritle growing regions in central California into a desert over a 2 inch minnow.
As Paul Rodriguez stated, “FISH DON’T VOTE!!”
Not to sound like a conspiracy theorist but lets look at a few facts and you decide:
1. The San Wakeen Valley is very flat, receives plentiful sunshine, and is very close to San Fransisco. (Perfect for Windmills, Solar Arrays, and Solar Concentrators)
2. It is (was) some of the most expensive farm land in America.
3. Departments of the Federal Government were responsible for turning off the water supposedly to protect the delta smelt and commercial salmon fishing.
4. Van Jones (Oakland / San Fransisco) – Founded Green For All promoting “environmental justice”, Green-Collar Jobs Campaign, Green For All, a NGO to create “green” pathways out of poverty, and Obama’s (former) green czar. Who will replace him? Is he really gone or just out of sight?
5. Obama 2004 – “I fear that reparations would be an excuse for some to say, ‘We’ve paid our debt,’ and to avoid the much harder work.”
6. 5th Amendment – Federal Government has the right of Eminent Domain in which they will provide “fair market” compensation for land
which must be used in a way to the “benefit” of the public welfare or interest. At that point, how much will an abandoned “dust bowl” be worth? (The 10th Amendment could be a important issue here depending upon final ownership contrasted with the Federal Government’s enumerated powers.)
7. Nancy Pelosi, 8th District California and Speaker of the House. Arnold is rarely outgunned in the movies but I think he is here by the power in Washington.
8. And finally, is anyone trying to find a solution that will provide a new source of fresh water or “filter” the little fish from the pumps? How about a Federally funded desalination plant solution to create new and save old jobs? My bet is No to both.
9. Who would be the “new” land owners in the valley and our new energy controllers?
Put all that together and I can see why the farmer’s days might be numbered. What do you think?
Reparation Ref: http://www.investors.com/NewsAndAnalysis/Article.aspx?id=483402
Me – 2009 “Progressives, in finding solutions to our problems, generate revenue and tax streams to advance the cause of Socialism.”
I am amused and saddened by the US stupid laws against Cannabis. In my country Holland is has been decriminalized for 25 years now. Because it is not in the neighboring countries like Belgium, France and Germany, cannabis tourism had to be curbed, it clogged the roads to the coffee shops that are licensed to sell it. Coffee shops are now placed outside city centers and the smokers have to drive 10 minutes more to get their stuff.
How long America will keep this jail filler law is a measure of the stupidity of its leaders.
Sorry for you folks, wish you could come to the Netherlands, the Low Lands Weed Company welcomes you relaxed and fear free. With love.