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

[E. Wayne Johnson]

 From my reading of the law John W. so graciously provided,
the decision in Gonzales v. Reich was based upon interstate commerce claims,
as ridiculous as the influence of 5 marijuana plants in California grown for
personal consumption might be, considering that the US consumption of
cannibis exceeds 20 million pounds per year (estimated).  The court 
compared it to the
growing of wheat for personal consumption during WWII which was previously
determined to be within the bounds of federal authority.



E. Wayne Johnson wrote:
>
>
> John W. wrote:
>>
>> On Tue, Sep 23, 2008 at 9:54 PM, E. Wayne Johnson <ewj at pigs.ag 
>> <mailto: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?  :-)
> *Why not?  I am of full age and I can read, and I can decide what is 
> good and what is not good.*
>>
>>  
>>
>>     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.
> The point is that we can read the constitution and decide during the 
> preparation of laws whether or not they
> are constitutional.  Recently in Urbana, one of the city council 
> members suggested that the city pass
> an unconstitutional ordinance that would restrict free speech.  
> Fortunately it was pointed out that such
> an action would be unconstitutional.  Amazingly, the alderman had the 
> imperious gall to suggest that
> the action should be passed even though it was unconstitutional, and 
> be left for the courts to sort out
> if anyone should challenge it.   Liberty did carry the day, but 
> fundamental liberty and the constitution was
> challenged.
>
> I will read the other items you attached.
>>
>>  
>>
>>     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
>>>     <mailto: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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