Patterico's Pontifications

8/1/2008

Pathetic Piece of Journalism From LAT Re Raid of “Medical Marijuana” Dispensary in LA

Filed under: Constitutional Law,Court Decisions,Crime,Dog Trainer — WLS @ 2:55 am



[Posted by WLS]

This isn’t about a debate over whether there should or should not be valid state laws authorizing the distribution and use of medical marijuana.

The fact is that marijuana is a Schedule I controlled substance by act of Congress, making it illegal for any and all purposes.  It is a federal felony to DISTRIBUTE or POSSESS WITH THE INTENT TO DISTRIBUTE any Schedule I controlled substance.  It is a misdemeanor to possess it with the intent to use it.

The Supremacy Clause of the US Constitution means that state laws cannot override that federal statute so long as it is on the books.  Convince Congress to change the law — fine.  Until then, MJ distribution is illegal, whether medicinal or otherwise.

Now to the LAT story today on the DEA raid.  Here’s the paragraphs that are so pathetic:

Federal agents raided a Culver City medical marijuana dispensary where they spent more than four hours this afternoon, serving a search warrant that resulted in no arrests but left the shop in disarray.

Drug Enforcement Administration agents arrived about noon at Organica Collective in the 13400 block of Washington Boulevard, said Sarah Pullen, a spokeswoman for the Los Angeles office of the agency.

“Marijuana remains a controlled substance, and it is illegal under federal law to possess, dispense or cultivate marijuana in any form,” Pullen said of the purpose of the raid.

The federal operation came on the same day an appellate court in San Diego ruled that federal law does not preempt the state’s law allowing the use of medical marijuana — a ruling touted by supporters of California’s medical marijuana law as a significant win.

What Court?  What is the basis of the decision?

Read through the LAT article 2, 5, 10 times and you won’t find another mention of it.

The reference seems to cast doubt on the legitimacy of the law enforcement activity undertaken by DEA, which is described in the most “horrifying” details by LAT Staff Writer Tami Abdollah — I guess her salary is cheap enough that it wasn’t necessary to lay her off.  And the LAT is getting journalism worth every penny they are paying her.

So, what court decision came down today?

It seems that the California Fourth Circuit Court of Appeals in San Diego ruled against the City of San Diego, which had brought a civil suit to invalidate the state ID Card program which is being used as a foundation for California’s medical marijuana laws.  San Diego argued that because distributing marijuana is illegal under federal law, the state ID card program is also invalid.  The California state appeals court held otherwise, saying federal laws banning the distribution of marijuana don’t invalidate the ID law.

The bottom line on that is, for good or ill, state appellate courts have absolutely zero ability to determine what is or is not valid federal law.  So long as Congress deems that marijuana distribution, for medicinal purposes or otherwise, is illegal — its going to remain illegal and DEA is going to continue to raid these dispensaries.

Explanation for the pathetic reporting in this story?  I don’t know.  Maybe the LAT fired so too many editors.

70 Responses to “Pathetic Piece of Journalism From LAT Re Raid of “Medical Marijuana” Dispensary in LA”

  1. The “medical marijuana” claptrap is exactly that: claptrap. My wife is a registered nurse, who frequently has to administer chemotherapy to children. Sometimes patients are prescribed Marinol, a medication

    approved for two uses. MARINOL treats nausea and vomiting associated with cancer chemotherapy in patients who have failed to respond adequately to conventional treatments. MARINOL also treats appetite loss associated with weight loss in people who have acquired immunodeficiency syndrome (AIDS).

    Marinol is based on a synthetic formulation of the active compound in marijuana, to produce marijuana’s supposed medical benefits, but is designed not to get patients high.

    Translation: marijuana for medicinal purposes already exists! What the medical marijuana people want is to use the weed itself, as a foot in the door for getting stoned. That’s all it is, and that’s all it ever was.

    Dana R Pico (3e4784)

  2. I got a kick out of the fact that a medical marijuana clinic had its own ATM inside.

    wls (4ab682)

  3. The federal marijuana laws are clearly unconstitutional, therefore, they are under the control of the States. (If you disagree, please explain in detail how alcohol prohibition is different than drug prohibition.) Please remember that the federal government is an agent of the States, the States are not an agent of the federal government. States have every right to ban federal agents from acting within their borders. Ultimately, the issue is that the States are too weak to reject federal money that has been forcefully stolen from the People.

    4horsemen (3331f5)

  4. I see the stoners have shown up with all the redefinition of laws, terms, and logic to make them right and able to get stoned at will.

    PCD (5c49b0)

  5. The issue of the supremacy of the federal government was decided in the famous case of Grant v. Lee, Volume 1 Appomatox, Page 1 (1865).

    nk (c1e92f)

  6. The bottom line on that is, for good or ill, state appellate courts have absolutely zero ability to determine what is or is not valid federal law.

    Huh? State courts have as much power to interpret federal law as federal courts do, they rule on federal questions all the time. I will grant you that the case in question (free registration required) doesn’t go anywhere near as far as the L.A. Times implies, and would run afoul of existing Supreme Court precedent if it did. Perhaps this is why Tami Abdollah didn’t mention that case in her article. Trashing her for a silly byline that was almost certainly written by someone else, that’s just lameness on stilts.

    Xrlq (b71926)

  7. Sorta off subject here, but this article discussing San Onofre Nuclear Plant is well, in short, pathetic.

    G (722480)

  8. Supremecy Clause…
    …disclaimer…
    Not a Stoner!

    If the SC invalidates CA’s Med MJ law, why doesn’t it also invalidate CA’s Assault Weapons Ban?

    Just asking.

    Another Drew (8018ee)

  9. Racists.

    JD (75f5c3)

  10. The issue of the supremacy of the federal government was decided in the famous case of Grant v. Lee, Volume 1 Appomatox, Page 1 (1865).

    Perhaps – until the upcoming war of Federal Aggression, which, by the way, has already started with the Real ID fight by the various States.

    Horatio (a549f7)

  11. Xrlq is right. A state court’s interpretation of a federal statute is as valid as any, subject to review by a higher court or collateral attack in a federal court with jurisdiction.

    nk (c1e92f)

  12. “Perhaps – until the upcoming war of Federal Aggression”

    Horatio – If it’s upcoming how can it already have started? Think much?

    daleyrocks (d9ec17)

  13. The issue of the supremacy of the federal government was decided in the famous case of Grant v. Lee, Volume 1 Appomatox, Page 1 (1865).

    I stand corrected – we’re in the skirmish phase

    Horatio (a549f7)

  14. good grief, either my Con Law professor is an idiot, and I am one too, or State Courts cannot answer Federal Questions in a binding sense, as a matter of basic jurisdiction.

    Sure, State courts can give their opinion on Federael Questions anyway, just as they often give the opinion on other matters ‘This was an amusing defense’ ‘Cyrus Sanai was very rude an unprofessional again’ ‘I like cheese and ham’, but that doesn’t mean the Federal Question was answered. State courts just don’t have the jurisdiction to make any kind of binding decision on Federal laws.

    This isn’t complicated. The California mid level court did not rule on any federal issue at all, and anyone who thinks it did just doesn’t understand the basic law of jurisdiction.

    Juan (4cdfb7)

  15. The Supremacy Clause states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the land…” I must have missed the part of the Constitution authorizing Congress to ban the use of drugs for medicinal or any other purposes.

    Feel free to stereotype me as some sort of hippie stoner, if you’d like. Feel free also to miss the irony.

    But I want to give a special shout-out to nk, for his novel “might makes right” argument. Kudos!

    Voice of Reason (f764a1)

  16. State courts just don’t have the jurisdiction to make any kind of binding decision on Federal laws.

    Bullshit. They have jurisdiction to make binding decisions on the parties before them and on every court subject to their jurisdiction.

    nk (32be1e)

  17. But I want to give a special shout-out to nk, for his novel “might makes right” argument. Kudos!

    I know you’re a smart guy when you want to be, Voice of Reason. Should the States respect the Supreme Court’s decision in the medical marijuana case? And if not, why should they not disrespect the decision in the Louisiana death penalty for child rapists case?

    nk (32be1e)

  18. #8 Read Scalia’s “Heller” decision. He gives Chapter and Verse on that very issue.

    #15 Yes, you did miss that part of the Constitution. I’ll admit I don’t see what irony you are referring to. But at least I was free to do so!

    Viktor Nehring (6c107f)

  19. I’m personally looking forward to the day when California decides to secede from the United States so that I can watch it fail to solve its own problems through the selfishness of its citizens and interest groups and gradually sink into the ranks of failed nations.

    daleyrocks (d9ec17)

  20. Juan #14,

    I sincerely apologize for “Bullshit”. State trial courts are courts of general jurisdiction as opposed to federal courts which are courts of limited jurisdiction. State courts rule on federal issues all the time. It’s not a question of jurisdiction but a question of choice of forum. In this case, I doubt that there is jurisdiction in a federal District Court for collateral attack of the decision. There is only direct appeal to the state’s Supreme Court and petition for certiorari to the U.S. Supreme Court. If not reversed, the decision is binding in the state according to the state’s rules.

    nk (32be1e)

  21. nk: Your question in response to me is a non sequitur. Your original claim was that the issue of federal supremacy over the states was decided by Lee’s surrender to Grant at Appomattox. Do you deny that this argument boils down to “might makes right?” Are you not asserting that the issue’s resolution by force of arms settles the matter?

    Now, as for your question: the matter of what should be done is vague and dependent on many subjective factors, and I prefer to stick with concrete realities. May the states disregard the Supreme Court’s ruling on medical marijuana? Yes, without question. Any mandate of the federal government which is abhorrent to the Constitution, whether it be an act of Congress, a decision of the Executive, or a ruling of the Supreme Court, is invalid and has no force of law. Do you disagree? Suppose, as seems likely, Barack Obama wins the election, and suppose, as also seems likely, he appoints several liberal Justices, and they find somewhere in the mysterious “penumbras and emanations” a Constitutional prohibition on the personal possession of any weapon deadlier than a sharpened stick. Would the states be bound by this? Are the states required to slavishly obey the Court, no matter how unconstitutional its rulings are?

    And would you favor sending in the Army to subdue any state which refused to obey this mandate from the Supreme Court?

    Voice of Reason (f764a1)

  22. nk — state courts can INTERPRET federal laws for the purpose of resolving the case or controversy properly before them. In this instance the case or controversy was whether or not a state law was invalid because of the federal law banning marijuana. The state court interpreted the interplay between the law and determined that the state law was not invalid.

    I’m not saying that is a right or wrong outcome.

    What I’m saying is that the state appeals court cannot, as a matter of constitutional law, decide what federal laws are valid and enforceable withing the state.

    The suggestion in the article is that the “court decision” said medical marijuana is not illegal under federal law, and that is plainly NOT the case. There are more than a few medical marijuana practitioners in federal prison right now having been convicted of violating the federal prohibition on distributing marijuana, and their good intentions were no defense.

    As for Voice of Reason, federal laws concerning the distribution of controlled substances were passed by Congress pursuant to the Commerce Clause. I certainly understand the argument of those who think Congress exceeded its constitutional authority in doing so, but the Supreme Court has upheld the statutes against that constitutional challenge many many times.
    The Supremacy Clause prevents states from passing laws that conflict with or undermine federal statutes passed by Congress. If Congress makes distributing marijunaa illegal for any purpose (Sch. I), California cannot make it legal to distribute if for medical reasons.

    Schedule II controlled substances CAN be lawfully distributed for medical reasons. If MJ was placed in Sch. II, then the Calif. law would not violate the Supremacy Clause. But for now Congress has MJ under Sch. I.

    wls (4ab682)

  23. “I’m personally looking forward to the day when California decides to secede from the United States so that I can watch it fail to solve its own problems through the selfishness of its citizens and interest groups and gradually sink into the ranks of failed nations.” by daleyrocks at #19.

    When that day comes, and it’s not beyond the possible, the State of California will then appeal to Mexico for annexation. I wonder how California’s civil libertarians will take to Mexico’s “Napoleonic” system of law in comparison to American Common Law?

    C. Norris (470f56)

  24. daleyrocks – Lawrence O’Donnell is going to lead the charge for secession after Obama loses to McCain.

    http://www.washingtontimes.com/news/2004/nov/09/20041109-122753-5113r/

    wls (4ab682)

  25. Scalia’s refusal to overturn a New Deal precedent allowing a wholesale regulation of state matters based on the commerce clause was a HUGE disappointment.

    It certainly played into the criticism of him that he was an orginalist only when it served his personal ends. He doesn’t think dope is good so voted to indirectly overturn the directly expressed will of the voters of the sovereign state of California.

    A vote by him in support of the initiative would have helped roll back federal intrusion in so many areas and would have been a major victory to limited federal government.

    wls – Why should a precedent about a farmer growing crops to feed his own cows lead to a difference between state treatment of schedule I and schedule II drugs?

    Joseph Somsel (e5cbf5)

  26. Preemption and jurisdiction are two completely different issues. Anyone who actually went to a decent law school understands this; on this comments, it is pretty clear that only nk has some legal training. WLS obviously is not a competent California lawyer, as there are no appellate circuits in California, just districts, and the California appellate court is the California Court of Appeal (singular).

    State and federal courts can come to exactly opposite answers on questions of federal law, such as pre-emption. If made by a trial court, the decision is binding only in that trial court as to that case. If made by a state appellate court, it is binding only the appellate courts of that state; if made by a federal appellate court, only binding in that circuit. If there is a split, and there are splits on many, many issues, it is the job of the United States Supreme Court to resolve it.

    There are three kinds of preemption, express, field, and conflict. Express preemption is always easy to identify and does not apply to drug laws–states are permitted to have their own. Likewise, it is crystal clear that there is no field preemption; if there were, there could be no California criminal laws concerning drugs.

    Whether or not California’s medical marijuana laws are conflict preempted is a major issue. If they are, then the laws allowing for distribution and the ID card system would be struck as impeding the objective of the federal drug laws. If they are not conflict preempted, then the laws can stay, but anyone taking the pot runs the risk of federal prosecution. So for the pot advocate, this was a big, big victory.

    I personally think the “no conflict” view is wrong after Justice Scalia’s opinion on the home grown marijuana decision, but it is a very close question.

    That being said, the post by WLS raises the question why he is allowed by Patterico to post, given that he can’t even get the details of the appellate court’s name correct. The LA Times story, describing the decision and that it was a victory of the medical marijuana crowd is completely correct. If it had gone the other way, then the entire regulatory system of licensing dispensaries would be shut down as a matter of state law.

    Cyrus Sanai

    Cyrus Sanai

    Cyrus Sanai (4df861)

  27. Congressional regulation of drugs:
    Isn’t that a Commerce question?

    Grant v Lee…When politics is taken to its’ ultimate extension, it always is “might makes right”.

    Mexico is currently implementing proceedures that overturn significant sections of Napoleonic Code within the Justice System.
    Will this reduce the corruption endemic throughout Mexico, or improve life there?
    Time will tell!

    Another Drew (8018ee)

  28. #26 was sorely lacking is teh crazi I have come to expect from Sanai…

    I am teh disappointed.

    Scott Jacobs (fa5e57)

  29. Isn’t that a Commerce question?

    Only if it is InterState commerce.

    However, wouldn’t the regulation of purely recreational substances be entirely a State issue, rather than a Federal one (especially after the 18th/21st Amendment debacle)? Whether the individual chooses to ingest THC, peyote, large amounts of grain alcohol, or even a half-ounce chunk of lead at 1100fps, how is that any of the State’s interest, so long as said individual causes no risk of harm to others by their act?

    Drumwaster (5ccf59)

  30. As to nk #22.

    You are confused about how jurisdiction works in our federal system.

    State courts can’t tell a federal district court how to interpret federal law. Likewise, federal district and courts of appeals can’t tell a state court how to interpret federal law.

    A state court can strike down any federal law which can be litigated in the state court. It cannot do the same with respect to the federal criminal drug laws, as state courts lack jurisdiction to hear federal criminal cases.

    However, that is not the issue as to the medical marijuana dispensaries in California. The question of whether they are conflict preempted goes to whether they can exist at all under state law. If they are not conflict preempted, then the can exist, subject to the ongoing risk of federal prosecution to anyone engaged in that business. If the state law allowing them were preempted, then they could not be regulated or validated by California AT ALL.

    Conflict preemption, on the other hand, would put the state of California out of the pot regulating business for good.

    Cyrus Sanai (4df861)

  31. #29

    Preemption does not generally rely on the enumerated power that Congress is using. So long as Congress has the enumerated power to enact the legislation, then preemption might occur. Whether it does occur depends on the language of the particular statute (which determines express preemption) and as to the other two kinds, case law of preemption analysis.

    The issue with Commerce Clause statutes (such as the drug laws) are whether that clause imposes any limitation on the scope of the subject matter that may be regulated. In the case of the drug laws, the Supreme Court has stated it is absolute. However, it is a separate question from what the preemptive effect of the law is.

    Cyrus Sanai (4df861)

  32. joseph somsel – I agree that the farmer and his wheat is a pretty thin reed upon which to hang about 70 years of federal regulatory law. But its like pulling the threat that would case the garmet to unwind.

    I’m not defending the constitutional jurisprudence that brought us to this point and time, only pointing out that its there and the people of California can’t change it — only the 535 people in Congress.

    WLS (4ab682)

  33. Cyrus — you’re right. They are the DCA’s. My fault after having been in the federal system alone for the last 17 years.

    Cyrus — if I’m so wrong about the status of the legality of medical marijuana in California, explain why Luke Scarmazzo and Richard Montes are facing a minimum of ten years in federal prison.

    Should we simply start a running list of all the former operators of California medical marijuana dispensaries that are in federal prison?

    WLS (4ab682)

  34. Cyrus @ 30: Now who looks like an idiot?

    Better bone up on 28 USC Sec. 2244.

    Or shall I explain it to you? District and appeals courts cannot tell state courts how to interpret state laws. They can, and when they have a jurisdictional basis to do so, often tell state courts how to interpret federal law.

    WLS (4ab682)

  35. Whoa, guys. The question was whether federal law pre-empted a state function — the issuance of IDs. Cut me some slack, will you! There are U.S. Supreme Court cases on the subject. I’ll have some cites for you in maybe five hours. Meantime, I have to work.

    nk (32be1e)

  36. Cyrus — I’d very much be interested in a court citation that states that 841’s absolute prohibition on the distribution of Sch. I controlled substances is not express pre-emption with respect to California’s laws concerning medical marijuana.

    I’ve been out of the drug prosecuting business for about 8 years, so I haven’t kept up with the case law. But, my understanding is that as of this time the issue has not been squarely addressed in the Ninth Circuit, but that the feds have won every battle over Med MJ in the Ninth that has been litigated.

    WLS (4ab682)

  37. 28 USC Sec. 2244.

    Here you go

    ***************************

    -CITE-
    28 USC Sec. 2254 01/02/2006

    -EXPCITE-
    TITLE 28 – JUDICIARY AND JUDICIAL PROCEDURE
    PART VI – PARTICULAR PROCEEDINGS
    CHAPTER 153 – HABEAS CORPUS

    -HEAD-
    Sec. 2254. State custody; remedies in Federal courts

    -STATUTE-
    (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
    (b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that –
    (A) the applicant has exhausted the remedies available in the courts of the State; or
    (B)(i) there is an absence of available State corrective process; or
    (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

    (2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
    (3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
    (c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
    (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim –
    (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
    (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

    (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
    (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that –
    (A) the claim relies on –
    (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
    (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

    (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

    (f) If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court’s determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State court’s factual determination.
    (g) A copy of the official records of the State court, duly certified by the clerk of such court to be a true and correct copy of a finding, judicial opinion, or other reliable written indicia showing such a factual determination by the State court shall be admissible in the Federal court proceeding.
    (h) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.
    (i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

    ****************

    (Just trying to help Cyrus look foolish…)

    Drumwaster (5ccf59)

  38. Cyrus Sanai Cyrus Sanai, posting a comment by Cyrus Sanai, wrote:

    Preemption and jurisdiction are two completely different issues. Anyone who actually went to a decent law school understands this; on this comments, it is pretty clear that only nk has some legal training.

    Bite me. If you must engage in pissing matches over whose law school can kick the other law school’s butt, let’s just say that every remotely credible ranking that’s been done in our lifetimes has ranked Berkeley Law (Boalt) “decenter” than UCLA – not that there’s anything particularly indecent about either.

    Had you had the good sense to follow my link and read the case in question before weighing in, you might have noticed that there are four classes of preemption, not just the three you mentioned. Conflict preemption is not even close, as that doctrine applies only where simultaneous compliance with both statutes is impossible. Of course that’s not the case here, as anyone who does not possess or use marijuana is in full compliance with both laws. Obstacle preemption is the only remotely plausible theory, and even that argument is pretty weak in light of § 21 U.S.C. 903, which provides that:

    “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.”
    [Emphasis added.]

    That strikes me as a pretty clear intent NOT to preempt any law that merely poses an obstacle to enforcement, and apparently, all four judges who have ruled on the issue agree. The Court of Appeal went further, though, noting in the alternative that even if Congress had intended obstacle preemption to apply, this ID law was still too de minimis in nature to pose the type of obstacle that the doctrine contemplates:

    Although California’s decision to enact statutory exemptions from state criminal prosecution for such persons arguably undermines the goals of or is inconsistent with the CSA–a question we do not decide here–any alleged “obstacle” to the federal goals is presented by those California statutes that create the exemptions, not by the statutes providing a system for rapidly identifying exempt individuals.

    Sorry, Cyrus Sanai Cyrus Sanai Comment by Cyrus Sanai, but you’re all wet on this one. The good news is that Scott Jacobs needn’t be disappointed, after all.

    Xrlq (b71926)

  39. Disclaimer: not a Stoner.

    Marinol is great if it works. For patients unable to keep it down long enough (even if powdered and mixed with a carrier) it’s a form of legal torture, promising relief that does not arrive. Contrary to the claim in the first post, the active ingredient is responsible for most of the effects of marijuana (at least as stated at the link provided.)

    It is an example of hubris-in-medicine. Knowing that there are thousands of chemicals in smoked marijuana, the claim is advanced that this single chemical is responsible for all of the good available from smoking marijuana. This is possible. Where is the research showing that the others, and combinations of the others, are ineffective?

    htom (412a17)

  40. Another Drew:

    Congressional regulation of drugs:
    Isn’t that a Commerce question?

    That depends on which Justice you ask. IIRC a majority said yes, but Scalia took the more sensible (albeit still wrong, IMO) position that a law prohibiting private, purely intrastate possession of a substance can only be upheld under the “necessary and proper” clause, not under the commerce clause alone.

    Drumwaster: the statute WLS referred to was 28 U.S.C. 2244. The statute you posted above was 28 U.S.C. 2254. Both statutes are a bit clunky, so it would be nice if WLS would quote the specific subsection he had in mind.

    Xrlq (b71926)

  41. Xrlq — my only intention in referencing 2244 was to suggest that federal courts — district courts and appellate courts — often overrule state court decisions on habeas corpus when the state court has mis-interpreted or mis-applied federal law in dealing with a state prisoner’s state habeas claims.

    If, for example, the state court denies a prisoner’s claim on habeas that a search violated his 4th Amendment rights, the federal district court on federal habeas review can over-rule that state court decision and send it back to the state court for further proceedings consistent with the federal ruling.

    I guess Cyrus simply overlooked all those California death sentences that the Ninth Circuit has thrown out over the years. Sometimes it has thrown them out over issues of state law (shocking) but more often it has thrown them out over issues concerning federal rights.

    Notice that California isn’t in the habit of executing those prisoners anyway, as would be the case if, as Cyrus stated in #30 above “federal district and courts of appeals can’t tell a state court how to interpret federal law.”

    WLS (4ab682)

  42. The statute you posted above was 28 U.S.C. 2254. Both statutes are a bit clunky, so it would be nice if WLS would quote the specific subsection he had in mind.

    *headdesk*

    Sorry ’bout dat. Here I am, trying to help and I miss a single digit. Good catch. Thanks.

    Drumwaster (5ccf59)

  43. Dysfunctional would be an unreasonable public policy goal for California IMHO.

    daleyrocks (d9ec17)

  44. Xrlq – Looking at the public track record of the legal antics of Cyrus Sanai, why would you have expected cogent analysis?

    daleyrocks (d9ec17)

  45. #38

    I follow the case law that says obstacle and conflict preemption are the same, and puts them into three classes. However, some judges think that there is a distinction.

    If you follow four classes then this is obstacle preemption.

    As for the question of criminal prosecution:

    Criminal liability and preemption are different issues. The best example comes from comparing gambling and drug laws. Federal authority to regulate either is based on interstate commerce. In gambling, the case law states that local laws allowing gambling in state do not violate federal laws prohibiting it (see wire act). No preemption, and interstate conduct is held to be an element of the federal crime. In the drug cases, there is no preemption, but interstate conduct is NOT an element of the crime, so even growing your own medical post and smoking it in your home runs afoul of federal drug laws.

    The question on preemption is whether there is a conflict (and/or an “obstacle” if you follow that terminology) between California regulating pot dispensaries and federal law making them criminal. The answer of the Court of Appeal was NO. Do I agree with that decision? Nope, I think it is wrong. But WLS’s post stated that the LA Times characterized it incorrectly. My point is, the LA Times got it exactly right. If the decision went the other way, then the entire regulated sale of pot would become ILLEGAL UNDER STATE LAW. So this was a victory of the medical potheads. They still have places to go to get their pot; they still must worry about the DEA and federal time.

    Finally, on the question of habeus law.

    Federal court habeus decisions are not binding on state courts as precedent, period (which is what we are talking about). There are plenty of cases when a federal court issues a habeus decision saying X state practice is illegal, but the state courts refuse to follow it. That’s why so much of the Supreme Court’s docket is habeus litigation–only the Supreme Court can force consistency.

    There are other situations, such as bankruptcy, 42 USC 1983 injunctions, etc. where federal courts can undo what a state court has done in a particular instance. However, as a matter of judicial precedent, in future cases with like facts the state courts may follow their own precedent.

    This can lead to really bizarre results on jurisdictional questions. There have been cases where state courts have held that a case is exclusive federal jurisdiction, the case is kicked to federal court, then the federal court states no, we don’t have jurisdiction, leaving the unlucky plaintiff out of court unless he can convince the state court that it was wrong.

    Cyrus Sanai (4df861)

  46. leaving the unlucky plaintiff out of court unless he can convince the state court that it was wrong.

    That would be simple. A certified copy of the Federal statement of lack of jurisdiction, and a letter quoting the Tenth Amendment.

    Nothing more would be required to prove that the jurisdiction belongs to the State. If the State Legislature had not addressed the issue, then it is extralegal, and the plaintiff is no longer unlucky…

    Drumwaster (5ccf59)

  47. Drumwater:

    Find me a case in the last 20 years where the Ninth or Tenth Amendment ever decided anything! Both of those Amendment have been read out of existence by the SCOTUS.

    The situation I describe arises usually because the state court disagrees with the federal court about the latter’s jurisdiction on non-statutory grounds.

    Cyrus Sanai (4df861)

  48. Corus Sneeze:

    Are you saying that because there hasn’t been a case that they don’t say what they say?

    I will quote it for you so that you can tell us which words no longer apply, and why.

    “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.”

    Go ahead, Pervesser, teach us that the Constitution doesn’t apply.

    Drumwaster (5ccf59)

  49. Patterico could’ve found several news accounts about the state court’s ruling in San Diego, but maybe he knew they would’ve undercut his harrangue. The court in no way ruled that California law override’s federal drug law. It just ruled that California government agencies (which include county governments) don’t have to enforce federal laws that conflict with state laws. The ruling does not prevent DEA or other federal agencies from enforcing federal drug laws.

    Escoman (a18ddc)

  50. Escoman,

    This post wasn’t written by Patterico. It was written by a guest blogger.

    DRJ (68f27b)

  51. WLS: You’re reaching, big time. Habeas review is not evidence that state courts can’t rule on questions of federal law. All it shows is that they aren’t the only courts who can do that.

    Cyrus Sinai #45:

    But WLS’s post stated that the LA Times characterized it incorrectly. My point is, the LA Times got it exactly right.

    And your point is exactly wrong. The Times byline didn’t say that the Court of Appeal had ruled that the licensing scheme was not preempted. That statement would have been accurate, though perhaps a bit misleading and in any event irrelevant to a story on DEA raids. But they didn’t say that, did they? No, they wrote that the court had ruled CSA “does not preempt the state’s law allowing the use of medical marijuana” – an issue on which the Court of Appeal not only did not rule, but on which it expressly declined to rule. You appear to have missed that part on the last go, so here it is again:

    Although California’s decision to enact statutory exemptions from state criminal prosecution for such persons arguably undermines the goals of or is inconsistent with the CSA – a question we do not decide here – any alleged “obstacle” to the federal goals is presented by those California statutes that create the exemptions, not by the statutes providing a system for rapidly identifying exempt individuals.
    [Emphasis added.]

    Far from making the L.A. Times byline “exactly right,” it makes it 100% wrong. That is apart from the fact that it would be a red herring even if they had gotten it right, which they didn’t.

    Drumwaster #46:

    That would be simple. A certified copy of the Federal statement of lack of jurisdiction, and a letter quoting the Tenth Amendment.

    Not so simple, really. A federal law is either valid or it isn’t. If it’s not valid, there’s nothing for a state or federal court to do anyway. But if it is valid, surely the part reserving exclusive jurisdiction to the federal courts is valid also. So in this case the plaintiff has no Tenth Amendment argument; all he can argue is that the state court read the federal statute wrong.

    Cyrus #47:

    Find me a case in the last 20 years where the Ninth or Tenth Amendment ever decided anything!

    I’ll go one better and offer two: U.S. v. Lopez, 514 U. S. 549 (1995) (federal ban on guns in schools exceeds commerce power and violates Tenth Amendment) and U.S. v. Morrison 529 U.S. 598 (2000) (federal cause of action for rape exceeds commerce power and violates Tenth Amendment). Not saying these cases help Drumwaster’s point – they don’t – but that’s another matter.

    Xrlq (b71926)

  52. Not saying these cases help Drumwaster’s point – they don’t

    How so? If a “court of competent jurisdiction” decided that a particular issue was not one that could be decided under Federal Jurisdiction, how can a State Court refuse to hear it, so long as the other requirements for legal action are met?

    Drumwaster (5ccf59)

  53. The Tenth Amendment determines whether the law was valid or not. It doesn’t say anything about who, if anyone, has jurisdiction to hear cases under it.

    Xrlq (b71926)

  54. But wait, I thought the Tenth specifically states that if the issue does not lie with the Federal Government, it drops down to the State level, “or to the people”.

    Seems pretty straightforward to me.

    Please explain what I’m missing in those words.

    Drumwaster (5ccf59)

  55. What you’re missing is the plain meaning of the Tenth Amendment itself. First, it speaks of “powers,” not “issues.” Second, and more importantly, it doesn’t say anything about issues “dropping down” from one level of government to another. It says that certain powers automatically rest with the federal government, and others do not. It would be a bizarre case for any court, federal or state, to hold on the one hand that Congress has a valid, enumerated power to legislate in a particular arena, while simultaneously holding on the other that it does not have the power to determine which courts (if any) may interpret it.

    Xrlq (b71926)

  56. So – if I’m understanding what you are saying – if Congress has not decided where an issue should be resolved, it can’t be?

    Drumwaster (5ccf59)

  57. Potentially. Assuming that the underlying federal statute is otherwise valid, Congress could pass a statute that no court has jurisdiction to hear, if it wants to. If Congress is unclear as to who should have jurisdiction to hear it, then it’s up the courts to make their best guess what Congress’s intent was. And that could be a real problem if federal and state courts each determine that Congress intended to grant exclusive jurisdiction to the other. At that point, only the U.S. Supreme Court can resolve the issue, as that’s the only authority on federal law to which both state and federal courts must defer.

    Xrlq (b71926)

  58. #49. Exactly right.

    WLS #51

    Thanks for the cites on the Tenth Amendment. I read Lopez and remember it as a commerce clause case. I’ll look at it again.

    Even if the Tenth Amendment is mentioned, I don’t think there are any cases which were decided on 10th Amendment, and solely 10th Amendment, grounds. I don’t know of any con law experts who believe that the 10th Amendment will be treated as having any independent meaningful impact.

    But let’s not get moved too far from the issue, which is the LA Times characterization of a C of A decision.

    In a federal system, there are two independent sources of criminal law: state and federal. Federal law can pre-empt state criminal law; the reverse cannot happen if the federal criminal law is a proper exercise of enumerated powers and otherwise constitutional. However, if the state and federal government both ban something, you have about double the enforcement risk.

    If CA’s medical marijuana laws were found to be pre-empted by sale of bud through the regulated California system would disappear.

    The LA Times story does not suggest or say that the California CA’s decision overturns federal law. What it says is that on the same day as this trial, the mj fans got a victory when a case which could have resulted in the CA regulated marijuana dispensary system’s abolishment instead went their way had the state system been found to conflict with/hinder the objective of the federal laws. That’s a true statement, period. The LA Times got it right.

    One last point. I now have had the time to read the decision closely, and what it actually deals with is EXPRESS preemption. However, because the express statutory provision allows state law unless they “conflict” with the federal laws, the opinion on first glance reads like a conflict opinion.

    Also, having reread it, the CA did a very neat analytical trick that now makes me think the ruling would survive higher court review. The first part of opinion holds that the plaintiff county only had standing to challenge the part of the law requiring it to issue cards. The opinion explicitly disclaims any ruling on the medical marijuana laws in their entirety.

    The opinion then analyzes the question of whether just issuing the cards conflicts with federal law. The answer, of course, is no; issuing ID cards identifying the holder as “medical pothead” does not hinder federal enforcement–hell it makes it easier!

    If the entire system were brought up for challenge, I think it should not survive the statutory, i.e. express, conflict provision, but it is a close, close question because of the statutory language that Congress wrote.

    Cyrus Sanai (4df861)

  59. Finally, having read the footnotes, here is what the Court of Appeal said about conflict vs conflict and obstacle preemption, at footnote 11.

    “The parties dispute whether obstacle preemption is merely an alternative iteration
    of conflict preemption, or whether obstacle preemption requires an analytical approach
    distinct from conflict preemption. Our Supreme Court, although recognizing that the
    courts have often “group[ed] conflict preemption and obstacle preemption together in a
    single category” (Viva!, supra, at pp. 935-936, fn. 3), has concluded the two types of
    preemption are “analytically distinct and may rest on wholly different sources of
    constitutional authority [and] we treat them as separate categories . . . .” (Ibid.)”

    I’m actually glad to have this issue brought out in this exchange, because I am about to write a brief dealing with preemption, and this is the first opinion pointing out that the California Supreme Court formulation differs from the one used by many federal courts.

    Cyrus Sanai (4df861)

  60. Xrlq — You said:

    “You’re reaching, big time. Habeas review is not evidence that state courts can’t rule on questions of federal law. All it shows is that they aren’t the only courts who can do that.”

    But that’s not what I said. I was commenting on what Cyrus said, which was:

    “…federal district and courts of appeals can’t tell a state court how to interpret federal law.”

    They certainly can. As the Supreme Court held in Williams v. Taylor:

    When federal judges exercise their federal-question jurisdiction under the “judicial Power” of Article III of the Constitution, it is “emphatically the province and duty” of those judges to “say what the law is.” Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). At the core of this power is the federal courts’ independent responsibility-independent from its coequal branches in the Federal Government, and independent from the separate authority of the several States-to interpret federal law. A construction of AEDPA that would require the federal courts to cede this authority to the courts of the States would be inconsistent with the practice that federal judges have traditionally followed in discharging their duties under Article III of the Constitution.

    I didn’t say that state court can’t rule on questions of federal law — as I said in #22, state courts regularly interpret federal law to resolve controversies before them.

    Cyrus statement with which I took exception was that federal courts cannot tell state courts how to interpret federal law.

    I don’t want to play semantic games on this issue — the point is that when a federal court on habeas review invalidates a state prisoner’s sentence on the basis that there was a prejudicial violation of his federal rights at some point in the process that led to that sentence, the federal court is at the same time saying the state court got its interpretation of that federal law wrong.

    Again from Williams:

    [T]he requirement [is] that the determinations of state courts be tested only against “clearly established Federal law, as determined by the Supreme Court of the United States,” and second, the prohibition on the issuance of the writ unless the state court’s decision is “contrary to, or involved an unreasonable application of,” that clearly established law.

    So yes, federal courts issue writs to state courts telling them that their application of federal law was incorrect, and directing them to set aside the judgment. I suppose the state court could say no, but that would subject the state court to a contempt citation, and in reality it doesn’t ever happen.

    WLS (26b1e5)

  61. WLS #51

    I am Xrlq, not WLS.

    Thanks for the cites on the Tenth Amendment. I read Lopez and remember it as a commerce clause case. I’ll look at it again.

    Potato, potahto. No federal law can ever struck down under the commerce clause, which is an enumerated power of the federal government, not a prohibition on anything (though the “dormant commerce clause” cases imply a prohibition on state laws deemed unduly burdensome on interstate commerce, and then only if Congress hasn’t authorized the law in question). They are either upheld under it, or they are struck down because they exceed it, and cannot be justified under any of Congress’s other enumerated powers. Such was the holding in both Lopez and Emerson.

    The LA Times story does not suggest or say that the California CA’s decision overturns federal law.

    No, but it states outright that the Court of Appeal ruled that federal law doesn’t preempt California laws that allow medical marijuana, when in fact the Court of Appeal expressly reserved judgment on that point. That’s exactly wrong, not exactly right.

    Xrlq (b71926)

  62. Cyrus @ 58 — I agree largely with your analysis of what the 4th DCA did and didn’t do in the case. It did sidestep the bigger issue of whether the Med.MJ statute itself is in express conflict with the federal statute, and decided only the vary narrow question of whether the counties are required to issue ID cards under the Med.MJ statute. I don’t think that decision does any great violence to the federal statute. Having an ID card that might/might not entitle one to RECEIVE MJ does not, in and of itself, interfere with a federal statute that prohibits the distribution of MJ. The state statute is probably superfluous, but nothing in the federal law stops a state for passing a superfluous law.

    And, I’m willing to concede that this particular sentence from the story is accurate:

    “…an appellate court in San Diego ruled that federal law does not preempt the state’s law allowing the use of medical marijuana.

    To the extent the federal statute expressly pre-empts the MedMJ statute, it probably only does so with respect to distribution and possession with intent to distribute — not use.

    That said, my biggest objection to the story — which I emphasized in the post — was that the story told the reader NOTHING about the decision beyond the fact that there was a decision, and the implication of the reference in the story was that the DEA action was somehow illegitimate in light of the court decision.

    That was simply false.

    WLS (26b1e5)

  63. #62 WLS

    Thank you for your concession.

    As for your other point, about the implication, it’s actually much more interesting than that, and it is part of the federalist struggle.

    The people of several states have send by the democratic process, “let sick people smoke pot.” Me, I don’t care so long as I don’t have to inhale the second hand smoke, since I am wildly allergic to it. But I generally like democracy on things like drug use.

    The federal government says no, you go to jail for that. CA 4th Div. 1 basically took the position that it would not help the County of San Diego accomplish federal goals over state goals, and behind their very tricky analysis was, I think, the implication that the federal government should back off and let California do what it wants. CA 4th Div. 1 through standing analysis basically cut the challenge down to issuing ID cards, and as I said above, it helps the feds identify medical potheads, making its decision, on its limited standing, pretty much untouchable by a higher court. That was, technically, a demonstration of how skilled the California appellate bench is.

    Cyrus Sanai (4df861)

  64. to the first poster, marinol is indeed a synthetic version of marijuana, but for all those who’ve had a sip of diet coke know, it ain’t regular coca cola. sure, diet coke is touted as being similar, as tasting the same, but a synthetic can never be the real thing.
    marijuana is in fact beneficial. you moral warlords need to get off your high horse and let people have their medicine, and yes, their drug. if it hurts no one, why do you care?
    if you care to look further into the debate about marijuana, go here. it’s a debate about whether marijuana actually has medical value or not. the site, opposing views, is actually neutral, but if you read the marijuana policy project’s arguments, you might learn something.

    edinger (c1d5a8)

  65. WLS, why the concession? As I’ve pointed out twice now, the Court of Appeal expressly declined to rule on whether the CA law allowing the use of medical marijuana was or was not preempted. It’s a relatively minor nit, I suppose, but it is what it is.

    Xrlq (62cad4)

  66. Back to the Interstate Commerce Clause…
    Congress has arrogated unto itself vast powers under this clause, some that did not survive Judicial Review (at least pre-the packing scheme), and others that have.
    The regulation of controlled substances was IIRC pre- WW-1, so would not have been affected by the experience of the Volstedt Act (this is for Drum).
    Though SCOTUS has started to back-away from the deferrence they displayed to Congress on Commerce Powers since the mid-30’s, they still have an interpretation of interstate commerce that can, charitably, only be described by this lay-man as looney.
    To whit: If I manufacture something on my land, using my resources, and only my labor; because it is something that could be traded in interstate commerce, I am effecting that commerce by NOT engaging in it….
    Rod Serling, please call home!
    And, it is precisely that interpretation that allows the Feds to interfere in the intra-state commerce (even if only single party) of not just controlled substances, but regulated agricultural commodities too.
    Madness!

    Another Drew (8018ee)

  67. According to today’s Times in an article on banner ads, even a city’s laws preempt federal law:

    Huntington Beach banned the flights, then backed off in 2002 after an anti-abortion group sued, claiming a 1st Amendment violation.

    Honolulu’s ban was upheld in 2006 by a federal court, which held that the city’s rules could not be preempted by the Feds.

    Article

    Actually, a quick search found this, article which pointed out that the city’s rules were not preempted by federal law. “Could not be preempted” and “were not preempted” are the same concept to the L.A. Times. Patterico, how about volunteering to teach a 1 day course in federalism at the Times?

    TomHynes (c43c0a)

  68. Useless effort, unless the teached were willing to learn.

    Another Drew (8018ee)

  69. Why even bother with that? Remedial English is more like it. One needn’t know anything about preemption to understand that “could be” is not a synonym for “is.”

    Xrlq (b71926)

  70. One needn’t know anything about preemption to understand that “could be” is not a synonym for “is.”

    Tell that to the Obama-bots. “He could be President” is semantically equivalent to “he should be President”, which, in turn, is equal to “he already is President (haven’t you seen him with all those world leaders?)”

    Which explains all the regal accoutrement. Le Roi est mort, viva Le Roi!

    Drumwaster (5ccf59)


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