Congressional Research Service says not much Feds can do about legalized marijuana From the Pew Trust: Report: No Easy Options for Feds in Legal Marijuana States The federal government may not have much choice but to continue its mellow attitude toward legal marijuana in Washington and Colorado. New laws legalizing recreational marijuana use in Washington and Colorado probably fall under the states’ “power to decide what is criminal and what is not,” according to a new report from the Congressional Research Service (CRS). The report analyzes court precedent and lays out what the Justice Department and the Obama administration might do to enforce federal law now that several states have passed marijuana laws that contradict it. The agency’s conclusion: The feds face an array of unappealing options. Here’s the report: State Legalization of Recreational Marijuana: Selected Legal Issues (pdf) As you may know, the Congressional Research Service is the entity that Congress turns to for detailed policy and legal analysis. Here’s the key: In Section 708 of the CSA (21 U.S.C. §903), Congress specifically articulated the degree to which federal law was to preempt state controlled substances laws. This express preemption(61)provision recites language that evokes the principles of conflict preemption, stating,No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.62 Notably, the provision clarifies that Congress did not intend to entirely occupy the regulatory field concerning controlled substances or wholly supplant traditional state authority in the area. Indeed, Congress expressly declined to assert field preemption as grounds for preempting state law under the CSA. The Supreme Court has stated that this provision suggests that Congress “explicitly contemplate[d] a role for the States in regulating controlled substances.”63 As such, the preemptive effect of the CSA is not as broad as congressional authority could have allowed. States remain free to pass laws relating to marijuana, or other controlled substances, so long as they do not create a “positive conflict” with federal law, such that the two laws “cannot consistently stand together.” This is crucial, and why the Feds can’t simply overturn the Colorado and Washington laws, for example (or any of the medical marijuana laws, either). The states, of course, have to dance a bit of a fine line to make sure they don’t implement laws in a way that conflict with federal law, but the mere notion of the state having a different way of dealing with marijuana than the federal government is not a problem. In this instance, the CRS actually mentioned an Amendment that you rarely hear having any power: Under both Tenth Amendment and preemption principles, federal and state courts have previously held that a state’s decision to simply permit what the federal government prohibits does not create a “positive conflict” with federal law.85 As discussed above, under the impossibility prong of conflict preemption, the Supreme Court has specifically held that so long as an individual is not compelled by state law to engage in conduct prohibited by federal law, then simultaneous compliance with both laws is not “impossible.”86 The CRS also explains why international treaties do not overturn state legalization laws. It is well established that treaties, like federal statutes, may preempt conflicting state laws. The Supremacy Clause expressly provides that in addition to federal law, “all treaties made … under the authority of the United States, shall be the supreme law of the land.”138 Therefore, a state law is generally preempted to the same degree whether it is in conflict with a federal statute or an international treaty obligation. However, not all treaties are accorded “automatic” preemptive effect.139 Only where a treaty “constitute binding federal law,” without the “aid of any [implementing] legislative provision,” does it qualify as the “Supreme law of the land” for preemption purposes.140 Such treaties are known as “self-executing” treaties—meaning an international agreement with “automatic domestic effect as federal law upon ratification.”141 [...] …neither the Single Convention nor the other international drug control treaties appear to be “self-executing.” Each treaty requires the signatory nation to give legal effect to the goals of the treaty through domestic implementing legislation. The provisions of the treaties do not themselves establish binding domestic law. The United States, for example, implemented the obligations of these treaties through the CSA.145 Because these treaties do not create binding law “of [their] own force,” it would appear unlikely that a U.S. court would accord the treaties direct preemptive effect.146 So where does this leave the feds? They can use their limited resources to arrest and seize whomever they can get their hands on. They can tie marijuana to other federal laws — gun possession, public housing occupancy, employment drug testing, etc. None of these options will achieve the overturning of state laws. And their pettiness will turn individuals further against the federal government. Or… the federal government could listen to the states, and to the people. Just a thought.
My ability to understand legalese is very limited. From what I could gather this sounds pretty positive. It might explain why it is taking Obama and Holder so long to make a policy statement.
“all treaties made … under the authority of the United States, shall be the supreme law of the land.” I did not like reading this.
It is "positive", however it does not bring any new information to light. We've known all along that: The feds cannot preempt state laws repealing prohibition of simple possession. The CSA has "preemption" qualifiers that differ from the usual Constitutional preemptions (Supremacy Clause, etc...) The feds still retain the power to enforce the CSA, even in states that have legalized. The second bullet is important because it makes a claim of "field preemption" practically impossible. None of this changes the fact that the feds can preempt any state law that is in direct conflict with federal law. In this case, state participation in a regulated system of marijuana distribution would likely be in direct conflict with federal law. And that remains the biggest question mark when it comes to the federal response to CO and WA legalization. This is part of the Constitution and has always been. It is not overly important in marijuana law reform because the Single Convention treaty (and subsequent treaties) are not self executing, meaning they leave it up to the sovereign nations to create the laws necessary to comply with the treaties. In other words the Single Convention treaty has no actual "laws" within it, so nothing in the treaty can be considered the "supreme law of the land" for the United States. That part of the Supremacy Clause (along with the Necessary and Proper clause) is what gives the U.S. authority to create and enforce the CSA, but the treaties themselves are not the "supreme law of the land".
This was posted at the site of this post and I thought I should share it: DdC \t\t \t\t\t\t \t\t \t\tApril 16, 2013 at 2:58 pm · Reply\t\t \t\t \t\tBoy you can buy em books and send them to school and they still don’t get it… Beer and pot are legal for individuals to obtain reasonable amounts as long as it is not sold. Raich v Gonzales. You can’t sell beer without a license, but you can home brew reasonable amounts. A reasonable amount of pot has been determined by the Feds IND program as 300 joints every 25 days or less than 100 plants according to the CSA. Individuals are listed as state jurisdiction protected by the 10th amendment. Just not to sell as per the Commerce Clause ruling in RvG. Meaning, its states jurisdiction for anything not distributed, sold or dispensed. Only CA’s Prop 215 was written with no limits, and for anyone for any reason. The MMJ state scams written by cops limiting amounts, create a catch 22 for citizens. Legal to grow their own federally, but then get busted by the state for having more than the state limit. Or buy an ounce or less and break the Federal laws on Commerce. The IRS is busting buyers clubs, not the DEA. CO and WA are creating a whack a mole situation dwindling more taxes for the Feds to waste, when the logical conclusion would be to remove cannabis as a schedule#1 narcotic. Especially Hemp. Or until that happens, don’t let states limit amounts to force purchases and illegal grow ops. possess a controlled substance or listed chemical with intent to distribute. (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance. (vii) 100 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight Section 841. Prohibited Acts A (a) Unlawful acts Controlled Substances Act The Feds have patents on cannabinoids for Big Pharma to produce various marinol type medications. Sativex has a whole plant sublingual spray and Mississippi schwag farm grows it. Keeping medicinal with the Pharmacies and Hemp illegal… to sell. Only states can stop individuals from growing their own. Not exactly a Libertarian priority of protection. The moneysluts behind initiatives to limit state amounts to appease the drug worriers recklessly endanger individuals all for their own profits. Not exactly Constitutional, but very American. Follow CA or Bust’ Ending D.E.A.th & Pillage Incrementally What happens when cops write initiatives. Note. Compassionate Use Act not the MMJ Act NeoCon Flicts of Interest MJ Research Funding Cut as Support Grows Is The DEA Legalizing THC? Why Do YOU Think They Call it DOPE? I figure 100 kilograms of marijuana should take care of even medical patient's needs. That is legal now unless the feds can prove you had intent to sell or distribute the weed and growing your own at less than 100 plants is legal federally unless they can prove the same intent. All we really have to do is get the states to quit prosecuting for less than the federal limits already in the CSA.
Exactly why I HOPE my state of Washington decides to regulate marijuana in a similar fashion to the way we regulate wine and microbrews (NOT LIQUOR). The state has a real good history with these industries and their distribution systems and hopefully that may convince the feds we can do the same with marijuana. Opening the industry to larger scale grows only would not only be horrible for the consumers, but the feds would probably not let that fly. In the end, it will be just like the end of alcohol prohibition, where state-by-state, they will create their own regulations regarding the sale and distribution of marijuana most based on previous experiences with alcohol and tabacco.