When the recent story came out that nine previous heads of the Drug Enforcement Agency had sent a letter to the Attorney General suggesting that the federal government should sue California if Prop 19 passes, there was one really big thing missing… Sue based on what?
Various media reported about the letter (which you can now read here), but none of them indicated what the legal grounds of the suit would be and whether there was any, you know, validity to those grounds.
Anybody can suggest suing somebody. For example, the person in front of you at the grocery store buys the last bratwurst, and without brats your cookout is ruined. I could suggest that you sue them. I could even get eight friends together and write a letter suggesting that you sue them signed by all nine of us. And you still wouldn’t have any legal justification to sue.
Of course, as you can well guess, there’s really nothing there.
Just Say Now has brought out the big guns to put this nonsense away.
Bruce Fein, member of the Just Say Now advisory committee who served in the Justice Department as Associate Deputy Attorney General under President Reagan, responds:
Nothing in the Constitution requires a state to prohibit as a matter of state law and prosecution what the federal government has chosen to prohibit as a matter of federal law and prosecution. Proposition 19 leaves the power of the federal government to enforce federal prohibitions on marijuana trafficking or use unimpaired. It would be flagrantly unconstitutional for Congress to attempt to force states to enact laws prohibiting under state law conduct that Congress has prohibited under federal law! DEA needs remedial education on the Constitution.
Eric Sterling adds his analysis as well
…they are wrong on the key question regarding the merits of the lawsuit they desire the Attorney General to file. Proposition 19 withdraws California enforcement of its marijuana law which is its Constitutional prerogative. The Supreme Court ruled in the Printz case that Congress cannot “commandeer” state officials to enforcement federal laws. This is different from the Arizona immigration situation in which Arizona sought to authorize state conduct based on federal immigration status, and to create offenses based on federal immigration status. Immigration is explicitly a Federal power in Article I, section 8 of the Constitution. Marijuana prohibition is not in the Constitution. Federal power over marijuana is based on the commerce clause. Our law is filled with areas in which there is both federal and state regulation of various aspects of commerce. The Controlled Substances Act, unlike the Federal Communications Act, does not exclude states from regulation.
On its face, Prop. 19 is a completely different concept. Historically, Prop. 19 is akin to the act of the New York legislature repealing its alcohol prohibition law in 1923 which was perfectly lawful and Constitutional.
So the answer is, no, the DEA heads have nothing there.
But Eric also hits on another interesting point.
… this letter is the clearest indication that the drug prohibition establishment recognizes the political attractiveness and unique importance of Prop. 19. I cannot recall any previous collaboration of former DEA Administrators of this kind. If our national marijuana prohibition policy were not so clearly failing and not so close to being replaced with real controls, they would never have mobilized in this way to defend it. If Prop. 19 were not proposing a system of control that is so logical and straight forward that it is widely politically attractive, they would not be mobilizing this kind of collaboration.
I’ve noticed this, too.
There is real fear out there on the part of the prohibitionists. They see Prop 19 as the thread that could start to unravel the entire prohibition regime. If Prop 19 passes and the world doesn’t end/sky doesn’t fall/streets don’t erupt with violence/population doesn’t suddenly become mindless zombies, then why will the public support their prohibition gravy train?