[Peace-discuss] Re: [Discuss] War on drugs

[John W.]

On Tue, Sep 23, 2008 at 9:54 PM, E. Wayne Johnson <ewj at pigs.ag> wrote:

 Au contraire, I really do disagree with you about the concept of
> constitutionality being based solely in the Supreme Court.
>

You mean, a law can be unconstitutional in your own mind?  :-)



> Although the Supreme Court can determine constitutionality and it is
> temporally the decision of the court that
> establishes ultimate decisions in controversial cases, the Supreme Court is
> by no means the sole determinate
> of constitutionality provided that people are indeed able to read.
>

Who else is, then?  The people?  It's a fine theory.  But try using that
argument in a court of law.



> It becomes an issue of money political winds and willingness to pursue that
> actually brings an unconstitutional law to the courts,
> sometimes nobody seems to care nobody wants to bother asking the question.
>

Well, why would anyone need to pursue it in the courts at all, since you say
that there's some other means of determining constitutionality?




> Absolutely you are correct on the concept of amendments being
> constitutional, which was my point.
> If interstate commerce was sufficient authority to the Feds for
> Prohibition, why then did the government
> find it necessary to make an indisputable amendment?
>
> Since the constitutional amendment was necessary
> for the prohibition of alcohol consumption, why not for THC?
>
> Why did  the Californians play dead on their law and allow themselves to be
> coerced?
> Did they lack the resources and fortitude to make the challenge?
>

It's never that simple in our ridiculously complex system of checks and
balances - both federal and state laws, which frequently overlap or
contradict one another, and three branches of government in each.

There's plenty of information available if you Google it.  Try "California
medical marijuana federal enforcement", and make yourself a legal expert
like me.  :-)  Here's one particularly illustrative article (which may
illustrate also why I never went into the practice of law):

http://writ.news.findlaw.com/amar/20071109.html


The Clash Between Federal Drug Law and California's "Medical Marijuana" Law:
How Two Interesting Recent Events Illustrate Their Interplay  By VIKRAM
DAVID AMAR <http://writ.news.findlaw.com/amar>  Friday, Nov. 09, 2007

Two news items during the past couple of weeks in California highlight the
complicated legal and political tangle that is American federalism - the
relationship between federal and state governments -- today. Both incidents
involve the interplay between, on one hand, California's (now decade-old)
decision to decriminalize marijuana use for medicinal purposes, and, on the
other hand, the continuing illegality under federal law of all marijuana
cultivation, possession, distribution and use, for any purpose.

The two events present radically different facts: One involves an alleged
criminal conspiracy that is far-flung and linked to violence, whereas the
other involves a civil lawsuit brought by a seemingly productive employee
against his employer. Yet the two episodes, taken separately and together,
nicely illustrate key aspects of the ongoing tug-of-war between so-called
"states' rights" and federal supremacy.

*The First Episode: The Criminal Charges Against Two Entrepreneurial
Brothers*

On October 30, federal drug agents executed numerous search warrants against
Winslow and Abraham Norton, two young brothers (Winslow is 26 and Abraham
23) who are alleged to have sold an estimated $49 million of marijuana at
various locations in the Bay Area during the past three years. The Nortons'
medical marijuana dispensary was registered and given a permit to operate
under the regime prompted by California's Compassionate Use Act ("the Act"),
a 1996 initiative measure adopted statewide by voters that decriminalizes,
under state law, marijuana cultivation, distribution, and use in those
instances where a physician has given a written or oral recommendation or
approval to a patient to use marijuana.

Under the Act and subsequent implementing legislation, an Alameda County
Sheriff's Deputy regularly visited the Nortons' facilities to ensure that
only those persons with physician recommendations were being given the drug.


According to press accounts, the Nortons paid state and federal income taxes
on (at least some) of their income, rewarded their workers well and gave
them benefits, and even contributed charitably to the community.

Nonetheless, the Nortons appear to have been flagrantly violating the
federal Controlled Substances Act, which designates marijuana as an illegal
contraband substance whose manufacture, distribution and use is prohibited
in virtually all instances.

*The Constitutional Reason Federal Law Trumps **California** Law Here*

How, some people in California are asking, can the feds impose their will on
the people of California, who have chosen a different answer than has
Congress to the controversial and vexing question of whether marijuana use
should ever be allowed?

The answer is short and sweet: The Supremacy Clause of the U.S. Constitution
makes validly-enacted federal statutes the "Supreme" law of the land, along
with the U.S. Constitution itself. So, as long as the Controlled Substances
Act is within Congress' constitutional powers to enact (as the Supreme Court
held it was a few years ago, in *Gonzales v.
Raich*<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-1454>),
Californians can have no state-conferred immunity to be free from federal
restraints and prosecution.

Readers who don't easily see why federal statutes *ought* to be supreme over
- and not constrained by - inconsistent state laws may want to consider the
example of Southern resistance to federal civil rights laws in the 1950s and
1960s. There too, proponents of local authority argued that the national
legislative policy adopted by Congress in Washington DC - in that instance,
that racial discrimination in employment and housing should be barred -
should not be imposed on states and localities that had reached a different
resolution as to how they believed the races ought to interact. In that
setting, federal law won out. So too here.

Consider another example in which federal supremacy seems quite intuitive
and attractive. Suppose Congress outlawed use of a particular environmental
pollutant that many considered dangerous. If a majority of voters in any one
state nonetheless wanted to allow persons within the state to use that
pollutant, then those voters could decriminalize use of the pollutant under
state law, but could not prevent the federal government from punishing those
within the state who emit the dangerous chemical.

*Is Federal Supremacy Regarding Civil Rights and Pollution Meaningfully
Different from Federal Supremacy Regarding Marijuana? *

One way to attempt to distinguish the civil rights and pollution examples
from example taken from the marijuana setting would be to point out that
unless there is federal enforcement in the civil rights and environmental
law areas, innocent victims who happen to live in the permissive state may
suffer. In other words, there are spillover effects from a state's decision
to go its own way concerning racial discrimination and pollution - effects
that may harm individuals both in that state *and* in other states.

But the same can arguably be said for marijuana. If, for example, marijuana
use does create a risk that some persons may drive unsafely or do other
unwise things while under the influence, then the effects of this behavior
are not limited to the marijuana users themselves, nor are the effects even
limited to Californians.

California's medical marijuana scheme undoubtedly affects the marijuana
market in bordering states, and creates spillover effects in those other
states. Drivers cross state lines, as does the violence that tends to follow
business enterprises that are illegal in some places. It does not seem
coincidental that the Norton brothers' operations involved many young,
seemingly healthy customers who nonetheless have physician recommendations.
Nor does it seem coincidental that the Nortons have been plagued by armed
robberies; news reports suggest that, at least four times, armed assailants
have either killed, shot or robbed the Nortons themselves or their employees
or customers. This kind of violence rarely can be confined to one small
location, or even one state.

Indeed, in upholding Congress' power to regulate all marijuana, including
medicinal marijuana, the Supreme Court in *Raich* noted that the federal
government cannot count on California to keep its medicinal marijuana - or
the effects of this marijuana - within state boundaries.

*The Second Event: The California Supreme Court Hears Ross v. Ragingwire
Telecommunications Inc.*

The second illustration that helps frame federalism issues in this area is
the *Ross v. Ragingwire*<http://caselaw.lp.findlaw.com/data2/californiastatecases/c043392.doc>case,
in which the California Supreme Court heard oral arguments this past
Tuesday. Ross is a U.S. Air Force veteran who sustained disabling injuries
as a result of his military service. Since 1999, he has been taking
marijuana on the advice of his physician to alleviate back pain. He was
hired by the Sacramento technology company Ragingwire, which, pursuant to
company policy, required him to submit to a drug test.

Ross complied, and was very open about his medicinal use of marijuana. But
when his drug tests came back and they were (predictably) positive for
marijuana, he was terminated. Ross then brought an action under the
California Fair Employment and Housing Act (FEHA). FEHA, a state law similar
to the Americans With Disabilities Act, requires employers in California to
accommodate the physical disabilities of an employee or would-be employee so
long as the employee can, with accommodation, perform the essential
functions of the job. Ross argued that since he was disabled but could,
through the use of medical marijuana, perform the essential functions of his
job, Ragingwire violated his state law rights in terminating him on account
of his marijuana use.

The lower courts ruled in favor of the employer, reasoning that FEHA does
not generally bar employers from using drug tests or from requiring that all
employees refrain from illegal drugs. Since marijuana is an illegal drug
under federal law even though its use by Mr. Ross was not criminal under
California law, the lower courts reasoned, employers can terminate marijuana
users.

*How Is the **California** Supreme Court Likely to Decide the Ross Case? *

Now, the California Supreme Court must decide how to interpret the FEHA in
light of this complicated interaction with the federal Controlled Substances
Act.

A few things seem clear. One is that federal law could, if Congress wanted
it to, explicitly empower employers to discriminate against marijuana users,
even if marijuana use is decriminalized under state law. In legal parlance,
Congress could, if it wanted to, "preempt" state FEHA claims based on Ross'
theory.

But nothing in the federal Controlled Substances Act or elsewhere in federal
law seems to say or do that. In other words, there is no federal preemption
or (as in the Norton case) federal enforcement of federal law. Instead,
there is only the question of whether FEHA claims, as a matter of California
state law, can be based on failure to accommodate medicinal marijuana users,
given that marijuana is a federally-proscribed substance.

In deciding what FEHA means, or should mean, the California Supreme Court
needs to balance a number of factors. First, if Ross prevails, then at a
minimum, California employers who are constrained to allow medicinal
marijuana should not be held liable under state tort claims for any injuries
traceable to the marijuana use. (The state Supreme Court should have the
power to confer this tort immunity, since it fashions California tort law.
In contrast, the California Justices cannot immunize employers from
liability under *federal* law, but hiring medicinal marijuana users wouldn't
seem obviously to violate any federal law.)

Second, even if the specter of state tort liability is removed from
employers, it is still not clear whether they should be forced to hire
persons who are breaking federal law. Should an employer be forced to bear
the (small but perhaps non-trivial) risk that his employee will be arrested
by the feds (and thus unavailable for work)? Or that the workplace may be
the target of a federal law enforcement search? Or that residual marijuana
in the employee's physical system will affect his job performance?

On that last point, recall that FEHA claims are viable only if the employee
can perform the essential job functions. So ruling for Ross wouldn't require
employers to hire employees whose medical marijuana use deeply impairs job
performance. Still, there is a difference between performing the essential
functions of a job and excelling at the job, and there is an argument that
an employer should be free to pursue excellence, not bare competence, when a
federally-proscribed drug is responsible for any lapse in job performance.

Finally, and perhaps most importantly, the California court will have to
consider what the California legislature intended when it enacted a
provision in 2003 that made clear that employers did not have to accommodate
medical marijuana "use" on the job site "premises" or during the hours of
employment. Does this provision suggest that accommodation *is* required so
long as the medicinal marijuana is ingested *off* the employer's property?
Or does this language create no such strong inference? And what does "use"
mean here, anyway? Is a person "using" marijuana on the job site if it is
still in her bloodstream when she is on the job, even though she inhaled it
at home?

These and other questions are the ones the California Supreme Court's
Justices will grapple with, as they issue an opinion some time in the next
few months trying to make sense of the federal-state medicinal marijuana
hash. Whatever result the Court reaches, both the decision and the fallout
should be very interesting.
 ------------------------------
 Vikram David Amar is a professor of law at the University of California,
Davis School of Law. He is a 1988 graduate of the Yale Law School, and a
former clerk to Justice Harry Blackmun. He is a co-author, along with
William Cohen and Jonathan Varat, of a major constitutional law casebook,
and a co-author of several volumes of the Wright & Miller treatise on
federal practice and procedure. Before teaching, Professor Amar spent a few
years at the firm of Gibson, Dunn & Crutcher.




> John W. wrote:
>
>
> On Tue, Sep 23, 2008 at 5:34 PM, E. Wayne Johnson <ewj at pigs.ag> wrote:
>
> Actually the term War on Drugs was coined by Richard Nixon and further
>> promoted by others as you note.
>> One of the most unfortunate things about the so-called Christian Right is
>> that quite often is not Christian, and concerning the
>> teachings of Christ, they have it mostly Wrong.  One of the main precepts
>> of Christ is that you cannot create good behaviour
>> by enforcement of a set of rules.
>
>
> Not exactly.  Christ's precept was that, no matter how much you try to obey
> a set of rules, you will fail, and will be unfit for the kingdom of heaven.
> Beyond that, even if you obeyed the rules outwardly, you could still commit
> sin through wrong thoughts or wrong motives or through the FAILURE to do
> what is right.
>
> In human society we still have, and need, rules against murder, rape,
> kidnapping, burglary, etc., and I don't hear you objecting to them.
> Presumably that's because the acts I have listed are harmful to other
> people, while you perceive drug use as not being harmful to anyone but the
> person using.  While I tend to agree with you, that can be argued in a
> multiplicity of ways.
>
>
>   Most of your so-called Christian Right are modern day Pharisees and
>> Sadducees, Judaizers who
>> have either not read the simple precepts of the book of Galatians, or
>> maybe they did and either they just don't get it
>> or maybe they chose to reject it because they can have more power and
>> money that way.
>>
>> Much of the present background law prohibiting the use of marijuana was
>> directed at the use of hemp as an industrial fiber,
>> which was backed by the DuPont corporation in the 1930s because hemp fiber
>> was in competition with DuPont's synthetic fibers
>> such as nylon.   This information adds significantly to the bogus-ness of
>> the whole matter.
>>
>> Of course I am in favour of a rather uncompromising repeal of the drug
>> laws and a drastic reduction in the authority and scope of the
>> the DEA and FDA.  That could be too much of a bite to take at once.
>>
>> I really am ignorant about how much authority local (city, county)
>> government has to countervene on behalf of the citizenry against the
>> Illinois drug laws. Any scholarly advice on this would be useful.
>
>
> All I know is that the state supersedes the community (unless it's home
> rule, then it gets complicated), and the feds supersede the state.  When
> California passed its medical marijuana law, the feds basically ignored it
> and continued to bust Californians with pot.
>
>
>
>
>> I suspect that the Federal laws may be wholly unconstitutional,
>> considering that constitutional amendments were deemed necessary to
>> invoke&repeal alcohol prohibition.
>
>
> Naw.  A law is deemed constitutional unless the Supreme Court (or a lower
> federal court, absent the intervention of the Supreme Court) says its
> unconstitutional.  Creating an actual constitutional amendment, with all the
> procedures required to do so, guarantees the law's constitutionality.
> Logically, how could a constitutional amendment be unconstitutional when
> it's part of the very fabric of the constitution itself?
>
> Think of state marriage laws.  A couple of states have passed laws
> legalizing gay marriage.  The federal courts have not deemed those state
> laws unconstitutional, which means that they're still constitutional.  So
> the neocons were proposing a constitutional amendment specifying that a
> "marriage" is a union between a man and a woman.  Had such a constitutional
> amendment passed, it would have had the effect of rendering the state laws
> permitting gay marriage ipso facto unconstitutional.
>
>
>
>  I would favour local action to detoxify local drug laws to the maximum
>> possible extent, and cutting through as many of the intermediate
>> steps as possible.  I perceive moderation  in this case to be agreement
>> with the legitimacy of the present law.  I have no present information
>> on the scope or degree of resolve among the opposition (those who want to
>> maintain the status quo).  I do see that those who favour the status quo,
>> the legal profession, law enforcement, etc., have a stake in the matter
>> (dirty hands) which should be played against them to their extreme
>> non-benefit.
>>
>> I am not on the courtwatch list (as far as I know) but they might be
>> watching (who knows).
>>
>> Bob Illyes wrote:
>>
>
>>  Wayne Johnson writes "The war on drugs is a racket, a scam, a pretext for
>>> legalized robbery in the name of the law."
>>>
>>> The war on drugs goes back to Reagan, who decided that drug addicts were
>>> evil and should be punished, rather than people with a medical problem who
>>> should be treated. He was pandering to the "Christian" right. I've heard it
>>> estimated that half of the folks in prison for dealing were not dealers, but
>>> were falsely convicted by testimony of actual dealers looking for a lighter
>>> sentence, and I believe it. If you think tickets for marijuana use are too
>>> expensive, Wayne, have a look at the cost of all of these prisoners.
>>>
>>> The war on drugs is more legalized idiocy than legalized robbery. As with
>>> Prohibition, we need to change the law. Meanwhile, almost anything that
>>> keeps folks out of prison for having at most a medical problem is a good
>>> idea.
>>>
>>> Wayne- are you a member of the courtwatch discuss list, or are those
>>> folks wondering what I am replying to?
>>>
>>> Bob
>>
>>
>
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