California Marijuana Proposition Update

[ Posted Wednesday, October 13th, 2010 – 16:56 UTC ]

[UPDATE #3 -- 10/19/10, 1:00 A.M. (Pacific)]

I also gave the woman quoted in the article (quoted in the press release) a chance to respond. I was emailed the following from Argentina Dávila-Luévano, which will have to be the final update on this matter, now that all sides have had a chance to weigh in on the dispute:

"We stand by our press release and endorsement on Proposition 19. Our California board met on September 25, 2010 and heard the propositions and voted to support the measure. Regarding National and Mr. Wilke's comments, note that they have been a suspended corporation, are not affiliated with the state and their actions are in question."


[UPDATE #2 -- 10/16/10, 5:15 P.M. (Pacific)]

I gave the national office of the League of United Latin American Citizens (L.U.L.A.C.) a chance to respond to this article as well (since they were the ones to point out the error in the comments in the first place), and was emailed the following official statement by Brent Wilkes, the National Executive Director of L.U.L.A.C.:

"Contrary to prior reports, the League of United Latin American Citizens has not taken an official position on California Proposition 19 either at the national or state level. Unfortunately, our former State Director of California, Argentina Dávila-Luévano, led Proposition 19 supporters to believe that she had the authority to make an endorsement on behalf of LULAC when she did not. We apologize for the confusion Ms. Dávila-Luévano has caused and we ask any media outlet that reported the invalid endorsement to run a correction at the earliest opportunity."


[UPDATE #1 -- 10/15/10, 6:31 P.M. (Pacific)]

After posting this column, a comment was posted on the Huffington Post version of this article which indicated that the endorsement of Proposition 19 by the League of United Latin American Citizens (L.U.L.A.C.) of California was not correct, or in question. When contacted for comment, Tom Angell (who initially provided me with the "Yes on Proposition 19" press release and link), issued the following statement:

"We accepted L.U.L.A.C. California's written endorsement of our measure in good faith. However, we subsequently learned that there is internal debate at L.U.L.A.C. at an organizational level regarding who has authority to endorse. Out of respect, we took down the L.U.L.A.C. endorsement to give them time to resolve their discussion."



Last week's column on the possibility that California voters are about to legalize recreational marijuana usage -- and what the Obama administration might do in response -- certainly generated a lot of interest, so I thought it'd be worth revisiting the issue to update the news on Proposition 19, and to clear up a few points commenters raised last week. This will be somewhat of a "Part 2" to last week's article ("If California Legalizes Marijuana, How Will Obama React?"), which I encourage everyone to read to provide some context.

I have to admit that I still have no answer to the question last week's article asked in its title. At this point, nothing more than sheer speculation can answer how President Obama and the White House would react to Proposition 19 passing.


"Yes on Proposition 19" news

But the "Yes on Prop 19" effort keeps picking up important endorsements outside of Washington. The latest of these was recently announced in a press release on the "Yes on Prop 19" website:

The League of United Latin American Citizens of California on Friday announced its endorsement of Proposition 19, the California initiative to control and tax marijuana on November 2nd's ballot.

"The current prohibition laws are not working for Latinos, nor for society as a whole," said Argentina Dávila-Luévano, California L.U.L.A.C. State Director. "Far too many of our brothers and sisters are getting caught in the cross-fire of gang wars here in California and the cartel wars south of our border. It's time to end prohibition, put violent, organized criminals out of business and bring marijuana under the control of the law."

. . .

Latino youth are disproportionately impacted by marijuana prohibition. They are arrested and jailed at a higher rate than white youth, even though marijuana use is roughly consistent across ethnic and racial lines.

L.U.L.A.C. is the oldest and largest Latino advocacy group in California, so their voice carries a lot of weight. And it provides a nice balance to the early endorsement from the California chapter of the N.A.A.C.P.

The RAND Corporation released a study this week that was spun by the media as "Legalizing pot won't hinder Mexican cartels," because they concluded that Californians mostly consume marijuana grown in-state rather than across the border.

Because nobody else in the media bothered, I thought it would be a good idea to give the pro-legalization side a chance to respond to the study. Tom Angell, Media Director for "Yes on Prop 19", sent me the following:

As you know, today the RAND Corporation released a study purporting to show that Proposition 19 in California will not have an appreciable impact on Mexican drug cartels' profits. However, this assertion is inconsistent with well-established federal data and even contradicts parts of the RAND study itself. The RAND report fails to properly understand Prohibition and Proposition 19.

To begin with, the White House Office of National Drug Control Policy has said that, in reality, the Mexican drug cartels make over 60 percent of their profits from marijuana alone.

Additionally, buried on page 35 of the report, RAND actually admits that Prop. 19 will take the production and distribution of marijuana out of the hands of criminal enterprises and into the hands of licensed and regulated Californians:

"We believe that legalizing marijuana in California would effectively eliminate Mexican [Drug Trafficking Organizations'] revenues from supplying Mexican-grown marijuana to the California market. As we elaborate in this chapter, even with taxes, legally produced marijuana would likely cost no more than would illegal marijuana from Mexico and would cost less than half as much per unit of THC (Kilmer, Caulkins, Pacula, et al., 2010). Thus, the needs of the California market would be supplied by the new legal industry."

In any case, the Prop. 19 campaign very much welcomes a public debate about just how many billions of dollars a year we can take away from the vicious drug cartels when we pass Prop. 19 and actually begin controlling and taxing marijuana. Whether it's over 60 percent of their profits or some smaller slice of the pie, the indisputable fact is that bloodthirsty cartels are making lots of money off of the illegal marijuana trade, and they are sure rooting against Prop. 19 passing so they can keep all their black market profits.

Additionally, the RAND analysis appears to fail to include cartel profits generated from illegal grow operations within California. Most law enforcers will readily acknowledge that many of the illegal pot farms here are run by Mexican nationals who presumably send the profits back to Mexico.

While RAND points out that passing Prop 19 will only end the black market in California and not in other states, our initiative is obviously an exciting start to a broader nationwide solution. California is at the forefront a national and regional movement. Many states are looking to follow California's lead on this issue, just as they did with medical marijuana. There are legislators in several other states who are eager to push marijuana control and tax legislation once California kick starts this nationwide reevaluation of our failed marijuana policies, just as it took action by people, state-by-state, to build a nationwide movement to repeal alcohol prohibition.

The alternative to passing Prop. 19 is a continuation of the current failed policies, the results of which have been obviously ineffective and also deadly. 28,000 people have been murdered in the cartel wars in Mexico over the past four years and, according to U.S. Department of Justice, cartels have already set up shop in at least 230 American cities.

We'd be interested in hearing what solutions RAND and the prohibitionists' would like to propose for a way out of this deadly mess... but they don't seem to have any.

Stephen Downing, former Los Angeles Police Department Deputy Chief of Police, was more succinct:

"The RAND Corporation can put out all the studies they want trying to make a political case for continuing our obviously failed prohibition policies. But, as my experience policing the streets of Los Angeles shows, the current laws provide huge financial benefits to organized criminals like gangs and cartels. It's ridiculous to claim that ending prohibition won't have a big financial impact on these violent criminals' bottom lines. Moreover, I don't see folks on the other side proposing that we do anything but keep enforcing the same failed policies that have only resulted in the cartels growing richer and richer over the decades. Proposition 19 is a giant step toward a much-needed, new direction for our marijuana policies. We've tried the prohibitionists' way, for over forty years, and the only result has been more and more drugs flowing into our country and more and more profits going into the pockets of organized criminals. There's one reason we don't see wine cartels growing grapes in our national parks, and that's because alcohol is legal. We have to move away from prohibition and toward controlling and regulating the market for marijuana, just as when we ended alcohol prohibition to put Al Capone's smuggling buddies out of business."


Tenthers weigh in

Proposition 19 has generated some widespread support from very disparate groups, from law enforcement officers (and ex-officers) to advocacy organizations for various groups. Because legalizing marijuana falls onto the wide battlefield between federal and state law, I decided to contact a prominent "tenther" organization to see what their stance on Prop. 19 was. Michael Boldin, founder of the Tenth Amendment Center, was happy to oblige:

"The federal government is only authorized to exercise those powers that 'We the People' delegated to it in the Constitution. Included among the myriad of constitutional violations from D.C. are federal laws that ban the use of cannabis. It is especially egregious when these laws are used to justify raids in states where the use and distribution of cannabis is expressly allowed by law. How many hundreds of thousands of people are going to be arrested before We the People say 'enough is enough'? The time to end this unconstitutional, immoral, and costly federal war on people is now.

"At the Tenth Amendment Center, we see three options when it comes to cannabis laws on a state level: (1) legalize on a state level and reject federal laws; (2) criminalize on a state level and reject federal laws; or (3) keep the status quo. Since the Constitution doesn't authorize the federal government to have any say whatsoever over whether cannabis should be legal OR illegal, option (3) is a non-starter for anyone claiming to be in favor of the Constitution. Putting this into practice, the only proper vote I can see is 'yes' on Proposition 19 -- even though I do believe Prop. 19, as written, leaves much to be desired. Then, once the People of California have made the decision that they're sick and tired of Washington D.C. waging an unconstitutional war on weed -- and telling them what plants they can and cannot grow, sell and consume -- then they can work to improve that state law how they see fit."

In other words, legalizing marijuana on a state level is consistent with their "decentralist" views.


I am not a lawyer, nor do I play one on the web (and here's why)

Last week's article provoked a lively discussion in the comments over one paragraph I wrote, in which I admit I oversimplified and misstated the legal position of the federal law in relation to state laws. I wrote last week:

Marijuana is still quite illegal under federal law. And federal law always trumps state law. At least, unless the United States Supreme Court rules against the federal law or Congress decides to change it. So what would the passage of Proposition 19 actually mean for Californians?

This generated quite a few comments, and behind the scenes I was contacted by Allen Hopper, the Police Practices Director of the American Civil Liberties Union of Northern California, who politely corrected my oversimplified statement:

In the public debate about Proposition 19, much has been made of the "conflict" with federal drug laws that will result if the initiative passes. Commentators and partisan advocates alike have asserted that Proposition 19 will be subject to court challenge by the federal government, and will be "void" because "federal law always trumps." This is just plain wrong. The mistake stems from conflating and confusing two critically distinct questions concerning federal preemption of state laws under the Supremacy Clause of the U.S. Constitution. The first is whether a state law can "authorize" conduct forbidden by federal law -- that is, whether state law can create a shield protecting state citizens from the reach of federal law. Federal drug laws would preempt any state law that purported to do this; the federal law would "trump" state law in the sense that federal agents could still enforce federal law, and no contrary state law could stop the federal prosecution. But Proposition 19 will change only state marijuana laws -- it does not purport to authorize anyone to violate federal law. The initiative raises only the second distinct question under the Supremacy Clause, and the only relevant question here: Whether a state may remove state law criminal penalties for conduct that federal law prohibits. That is a power California clearly possesses under our federalist system of government. Proposition 19 has two components: it would eliminate some of California's legal prohibitions against the possession and cultivation, by adults, of limited quantities of marijuana for personal use; and it would allow, but not require, local governments to establish a system for regulating the sale of small quantities of marijuana, from adults to adults, without running afoul of state law. The federal government can neither force California to expend its resources prosecuting small-scale marijuana offenses nor require California to keep on the books current state laws prohibiting marijuana sales -- or any other law. This is a bedrock constitutional principle underlying our federalist system of government.

If Proposition 19 is enacted, it will be not be "void" under the Supremacy Clause. It will be just as constitutionally valid as the medical marijuana laws in California and 13 other states and the District of Columbia -- none of which the federal government has ever challenged as preempted by federal law, and which the courts have consistently upheld as legitimate exercises of state legislative authority.

Hopper also took the time to debunk two other legal arguments, at least one of which came up in last week's comment section:

Two other related issues that have been raised by opponents of Proposition 19 are similarly without merit. First, comparing Proposition 19 to the Arizona immigration situation is like comparing apples to oranges. Immigration is an area of law in which the federal government has explicitly occupied the field; states are not permitted to enact their own immigration laws. But in the federal Controlled Substances Act (CSA), Congress explicitly did not occupy the field. 21 USC section 903 provides:

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.

The language used here, "positive conflict ... such that the two cannot consistently stand together" has been consistently interpreted by the federal courts to mean a conflict where state law requires an act which would itself violate federal law -- a very narrow type of preemption that would not be triggered by Proposition 19. While Congress intended that the federal government be the primary enforcer of immigration law and policy, it plainly did not intend the same for drug law enforcement, most of which is undertaken by local and state police, NOT the federal government.

Second, some have argued that an international treaty, the Single Convention on Narcotic Drugs, requires California to keep all marijuana use and sales illegal under state law. The fallacy with this argument is that treaties into which our government enters must comply with our own Constitution, and must be interpreted in a way which is consistent with the constitutional limitations on federal power to command the states.

All of which seems to indicate that the federal government is going to have limited legal options, at best, if it tries to overthrow the "will of the people" (assuming, of course, that Proposition 19 actually passes), as evidenced best by the fact that the medical marijuana laws still stand. But outside of the legal arena, there are still ways for the federal government to interfere with state laws they don't like. I'm speaking of the option of "blackmailing" California by withholding federal funding -- a very powerful lever that is controlled (mostly) by Congress. Which means that if Proposition 19 does pass, we may see some political grandstanding on the issue when budget time rolls around in Washington.


Cross-posted at The Huffington Post

Follow Chris on Twitter: @ChrisWeigant


-- Chris Weigant


5 Comments on “California Marijuana Proposition Update”

  1. [1] 
    Michale wrote:

    I am on record as being against all drug legalization efforts for several reasons. Most having to do with the precedent it sets by making something legal that is simply to hard to enforce. I won't bore everyone with regurgitating those beliefs and opinions.

    Yer welcome. :D

    But, I have to say. As I was reading this commentary, I found myself thinking, "Ya know, why NOT let California be the guinea pig in all of this."

    Let's let California try this grand experiment and see what happens. Will we have a California that is free from drug violence and populated with responsible adults who use their new toy responsibly??

    Or will we have a California who suffers MORE drug violence when Cartels add ANOTHER target to their litany and where Californians are nothing more than drug-addled buffoons who won't be able to even remember their own names...

    When you make marijuana as acceptable as cigarettes and beer how long do you think it will be until California's kids' lives are ruined by marijuana?

    So support Prop 19, I say. Let's see how legalization will work in real life, rather than in theory.

    I'll be happy to admit I am wrong..

    IF I am wrong...


  2. [2] 
    BashiBazouk wrote:

    drug-addled buffoons

    You really have no idea of the effects of marijuana do you? I've seen many, many more people act like buffoons after several beers than after getting stoned...

    I would think you would be all over this. A certain amount Mexican cartel smuggling is marijuana and should prop 19 pass it will reduce total smuggling, county wide. Why try to smuggle over a guarded border when you can buy in California and drive it across unguarded state borders? Which in your parley means less of a vector for terrorists to come in to the country from the southern border.

    It won't stop cartels completely as cocaine and heroin still make money. I am curious as to whether hard drug use rates will drop as they have in Holland.

    Once marijuana starts crossing state borders but legally purchased in California will the Interstate commerce clause of the constitution come in to play?

    I am also curious as to the national republican response will be. This issue being classic states rights should be defended by the Republicans except for the strong desire to legislate everyone in to a narrow concept of morality.

  3. [3] 
    Michale wrote:

    You really have no idea of the effects of marijuana do you? I've seen many, many more people act like buffoons after several beers than after getting stoned...

    Oh, I have plenty of idea of the effects. Just not from personal experience.. :D

    As I said, I am "all over this"...

    I think it sets a very bad precedent.

    "Hay, let's legalize armed robbery. It's just too darn hard to enforce."

    But, as I said above, let's try this experiment and see if easing drug laws because they are too hard to enforce is the answer..

    YES ON PROP 19!!!! :D

    I am also curious as to the national republican response will be. This issue being classic states rights should be defended by the Republicans except for the strong desire to legislate everyone in to a narrow concept of morality.

    It will be interesting to see the GOP response.. Which will win out??

    State Rights??

    Or the natural conservative tendency to want to punish law breakers...


  4. [4] 
    Chris Weigant wrote:

    Michale and BashiBazouk -

    Here's a slogan: "the states should be laboratories of democracy!"

    I agree -- let's let CA give it a try. The War On (some) Drugs seems to me to be the ultimate example of the hoary old "trying something over and over and expecting different results is one definition of insanity" if ever there was one.

    After all, most of the horrible worst-case scenarios predicted by the opposition to medical marijuana just haven't come to pass. So maybe, just maybe, if Prop. 10 passes in CA, it won't be as bad as the opponents make it out to be.

    But then, I've been to Amsterdam, and know that it can indeed work, so maybe I'm biased.


  5. [5] 
    Michale wrote:

    But then, I've been to Amsterdam, and know that it can indeed work, so maybe I'm biased.

    I recently read some articles that said the government of Amsterdam was cracking down on weed cafes and trying to change the laws...


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