10th amendment challenge

Via Toke of the Town

Raided medical marijuana providers sue U.S. government

Two medical marijuana providers have accused the U.S. government of civil rights violations in what may be the first lawsuit of its kind in response to a federal crackdown on pot operations across the nation. […]

The lawsuit was filed Tuesday in U.S. District Court in Missoula against the government, Department of Justice, Attorney General Eric Holder and U.S. Attorney for Montana Michael Cotter. […]

New Mexico attorney Paul Livingston, who is representing the plaintiffs, believes this is the first constitutional challenge of the government’s actions.

“I’m surprised nobody’s raised a 10th Amendment challenge,” Livingston said. “This is a process going on in all the states that have approved medical marijuana. They’re trying to set limits.”

District Court law clerks in Missoula were seen frantically searching for a copy of the text of the 10th Amendment.

While it sure seems like the 10th is deader than a doornail, I’d be absolutely thrilled if someone could find a spark of life left in it, so I’m happy to see the lawsuit.

Even if for no other reason that to remind people that the 10th Amendment exists.

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.

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33 Responses to 10th amendment challenge

  1. Rhayader says:

    Refresh my memory — didn’t Gonzales v Raich essentially shoot this argument down by ruling that even intra-state marijuana activity was subject to federal jurisdiction via the Commerce Clause? If that’s the case, than the Supreme Court has already ruled that federal intervention falls under the category of “powers delegated to the United States by the Constitution” (Article I, Section 8, Clause 3 to be specific).

    Don’t get me wrong, I vehemently disagree with this reading of the Commerce Clause, and would love to see this issue ruled to be beyond the reach of the federal government. Unfortunately, given that Court precedent seems stacked against this argument, I don’t see it happening.

    • Pete says:

      Raich was a Commerce Clause decision. I don’t know for sure, but I’m guessing that they’ll take a different approach on this one, focusing on the right of states to regulate their own laws (and attempting to separate that from the federal supremacy on the actual question of medical marijuana).

      The argument, I’m guessing, is not over the legality of medical marijuana, but rather the legality of the federal government to interfere with state government efforts to set up systems of distribution.

      I’m wondering if the federal approach of not charging most people (just seizing everything) and publicly claiming that they’re not going after sick people who use marijuana, could actually bite them in the ass in a 10th Amendment case. After all, they appear less interested in enforcing federal anti-marijuana laws than they are in interfering with state authority.

      • Dan Riffle says:

        Commerce clauses cases and 10th amendment cases are essentially the same thing. The tenth amendment says that powers not granted to the feds are reserved to the states. Commerce clause cases are about decided what powers are granted to the feds. What SCOTUS said in Raich is that prohibiting marijuana is a power that has been granted to the feds, through the commerce clause. In other words, the commenter is right and this has already been decided.

        The holding is Raich is that the federal government can enforce their shitty laws, state law to the contrary notwithstanding. I don’t think the changes to the court are going to be enough to overturn that, not that this case will ever make it that far. I don’t see Kagan AND Sotomayor both siding with a federalism argument.

      • Pete says:

        Dan, If this case is trying to counter the fed’s ability to outlaw marijuana, then you’re right, but I don’t think that’s what they’re doing. Again, I haven’t seen the filing, but I’m guessing it’s more about the states’ ability to set guidelines independent of the legality of the substance.

        For example, Raich gives the federal government the ability to outlaw marijuana, but does it give the Feds the authority to say that a single patient growing their own within a medical marijuana state is OK, but that a dispensary organized under state law is not? Now they’re not really regulating marijuana, but the means of implementing state law.

    • Duncan20903 says:

      Raich was decided using the precedent set in Wickard v Filburn, 317 U.S. 111 (1942) which was about wheat prices.


      It’s Wickard that needs to be overturned.

  2. Duncan20903 says:

    Well this should get a cohort of teabaggers panties in a bunch.

    I’m almost glad this is happening, the process is fascinating. If enough residents of Montana sign a petition they get to force the law onto “hold” and it goes on the 2012 ballot. The number of sigs required is perhaps 15,000 more than there are registered patients.

  3. darkcycle says:

    I thought one through ten were already suspended. That whole ridiculous “Bill of Rights” nonsense.

  4. strayan says:

    Well socialists saved the 1st ammendment, so why can’t cannabinists rescue the 10th?


    A gripping read.

  5. Richie says:

    I am confused about the following Supreme Court argument which cited the Wickard vs. Filburn case in its decision regarding Gonzales v. Raich:

    “[The Wickard vs. Filburn case] thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”

    However, The Wickard vs. Filburn case was not about whether the federal government had a right to eliminate the entire wheat market, but whether the federal government had a right to regulate aspects of the wheat market for the benefit of stabilizing the agricultural economy during the Great Depression; whereas, the federal government today wants to eliminate marijuana market entirely for the stated purpose of achieving “drug free” society (but the actual purpose appears to be to increase alcohol and pharma profits).

    I always interpreted the definition of “regulate” based on the circumstances described in commerce clause cases, i.e. allowing a particular activity (in this case, the lucrative marijuana market) to exist under certain government controls but not banning it entirely. Therefore, I don’t think the Wickard case establishes the Constitutionality of marijuana prohibition as a legitimate form of regulation.

    • Pete says:

      Supreme Court doesn’t see it that way. They have so loosely interpreted the Commerce Clause to include a very broad definition of “regulate.” This includes complete bans. The entire justification for any federal ban of marijuana is, in fact, based on the Commerce Clause. There’s nothing else that would give them the authority (back in 1937, they had to do it back-door through taxation, but that necessity went away long ago as the courts allowed criminally outlawing something as a proper “regulation of interstate commerce.”

      Once that’s established, Raich became a matter of whether there were any limits at all to their power, and it seems that there are (for all practical matters) none.

      I have more background on Raich here.

      • DdC says:

        Commerce requires more than one person. You can’t sell something to yourself, or give it away. Buyers Clubs and WAMM, where Angel gets her pot are considered Commerce. Angel growing it for Angel isn’t covered. Possession isn’t covered either. Nor is it Constitutional due to its ambiguity. My opinion is I’m still in shock over Cliarence’s decent-ion. As much as I believe these SCOTUS appointees are all basically practicing fascists taking advantage over an Unconstitutional Commerce Clause. Just think without the internet most of this stuff would have slipped by without much notice, let alone discussion and public input. True to form, another censor bill protecting us is being circulated. When the people fear the government we call it oppression, when the government fears the people we call it Liberty. I forget who said that. One of those stoner forefathers no doubt. But they didn’t have to put up with drug czars and commerce clauses.

    • Duncan20903 says:

      Richie, I think they call things like prohibition being regulation “legal fiction”.

      Legal fictions may be counterintuitive in the sense that one might not normally view a certain fact or idea as established in the course of everyday life, but they are preserved to advance public policy and preserve the rights of certain individuals and institutions. A common example of a legal fiction is a corporation, which is regarded in many jurisdictions as a ‘person’ that has many of the same legal rights and responsibilities as a natural person.

      Take it with a grain of salt as Wikipedia overseers don’t see that article as properly cited, but the example does follow my understanding of the concept. Also the example of the corporation being a person under the law is one of the the reasons those not happy with the relatively recent tossing of the unconstitutional campaign finance reform laws are so mistaken when they claim the law should have been upheld. It maybe a legal fiction but it’s not a creation from the 21st century, or even the 18th century.

      E.g. in 2007 Purdue Pharmaceuticals corporation was convicted of a felony for promoting non-medicinal use of Oxycontin brand oxycodone.

  6. Paul says:

    I like to see this sort of defiance, but it really is tilting at windmills. The supreme court is not about to upend 70 years of decisions no matter how unconstitutional they all were. Without a MAJOR shift in public opinion of the sort only caused by true national calamity, the supreme court will stand pat.

    Until then, congress and especially the president can pretty much do whatever they want. Everything is commerce, and absolutely nothing is outside of Federal jurisdiction.

    As for the true national calamity, well, we’re all collectively working on that. Let’s see if we can get the budget under control before hyper inflation sets in.

    • Duncan20903 says:

      In 2003 they overturned a 39 year old precedent, which tossed out laws in almost if not all 50 States in Lawrence vs State of Texas, 539 U.S. 558 (2003).

      In 1972 there was Furman v State of Georgia, 408 U.S. 238 (1972) that overturned laws in the majority of the States. Charles Manson is alive today because of that case.

      Not a chance in heck that any of those old goats on the SCOTUS know anyone that’s sick and benefiting from medicinal cannabis? I’ve got to tell you that IMO it’s only a matter of time, as the baby boomers move into their dotage, and the Geritol quits working. What the baby boomers want, the baby boomers get.

  7. kaptinemo says:

    “District Court law clerks in Missoula were seen frantically searching for a copy of the text of the 10th Amendment.”

    And that says volumes. One of the most basic principles of federalism is that States had the right to govern themselves within the broad confines of an agreed-upon Union. That basic premise underlies everything…and the inability of those bureaucrats to comprehend that and to be in need of reviewing the actual document goes to show just how far the imperial rot has set in.

    And, for those who wonder why I always use the upper-case “S” when writing about them: at the time the Constitution was written, the States were member countries in a federation, not provinces in an empire. It wasn’t a quaint old way of writing; the Founders viewed their respective States as sovereign political entities, not extensions of a central government. If you didn’t like the laws in one State, you could move to another de facto country, where the laws were more to your liking. Pass stupid laws, lose population and the ability to raise revenues, and face bankruptcy, so States had good reason not to get too big for their britches by antagonizing their citizens. Ergo, maximum personal freedom in most situations.

    But after the (not so) Civil War, with the Federal government triumphant over the seceding States, the cement of empire was applied by downgrading the status of the previously sovereign States into lower-case status, relegating them to the position of provinces ruled from the imperial capitol, War (not a typo) shington.

    So, now, we receive a ‘blast from the past’ with the recent wave of ‘Tentherism’ which calls for a return to the sovereign status the States once enjoyed, in order to rescind some of the most odious laws and regulations imposed upon the now prostrate, lower-case ‘states’ by that imperial-in-all-but-name capitol. Again, this is no accident the way the States are called ‘states’ with a lower case. It was deliberately done to make a point.

    Years ago I wrote that when we see the economic condition worsening (we are seeing that right now) and the fiscal house of cards’ that things like fractional banking create begin to fall (they are, right now) the money to fund government will get tight (unless government initiates inflation; see ‘Quantitative Easing’, but that only adds fuel to the fire) because fewer employed workers means a smaller tax base to support government, leading to cutbacks in services, people will begin to think more in terms of their local regions rather than Federal polices. And the Feds will have to cut back too, which means eventually there must be some sort of ‘triage’ of government ‘services’.

    And here is where an honest ruling in favor of the 10th Amendment in this case would be the death-stroke for drug prohibition. The Feds might maintain a token presence as far as enforcement is concerned, but the States would once again have the responsibility (and authority) to regulate commodities like (presently illegal) drugs just as they do other similar goods…just like they did before the Harrison Narcotics Act. Given the present wretched fiscal situation, with many States outright bankrupt, not much money would be appropriated to engage in such actions. It would be far cheaper to re-legalize the presently verboten and be done with it. And with the Fed jackboot off of their necks, they could get away with it.

    Even more, in the larger scheme of things, such a ruling would send the same kind of shockwaves through the Fed system as a positive ruling in Raich would have.

    The entire edifice of Federal suzerainty would be challenged, with a good chance the vast bureaucratic empire derived from the so-called Supremacy Clause (rammed down the throats of prostrate States by the Feds after the Civil War) would be forced to dismantle. Which is why the authoritarian/imperialist Judges on the SC voted against Raich; they’d be cutting their own throats and that of the American Empire.

    This is why the Feds and their in-pocket media mouthpieces show such disdain for such quaint ideas as believing in the 10th Amendment; they know it’s a cannon pointed right at the bloated engine of an out-of-control government. Pull the lanyard and watch the Fed behemoth disintegrate.

    Sorry to be so wordy, but somethings need fleshing out, and this was one of them. Apologies to the readership if I bored you.

    • Malcomkyle says:

      “Sorry to be so wordy, but somethings need fleshing out, and this was one of them. Apologies to the readership if I bored you”.

      Au contraire my dear Kaptin’, flesh away sir, flesh away!

    • denmark says:

      Not boring in the least, glad I was able to stop in and catch what you wrote.

      Sure want Montana to be successful in every way with this. Love their bravery.

  8. Dante says:

    Here’s the problem with any challenge based upon the 10th Amendment:

    Those who will ultimately sit in judgement on the merits of the challenge are all biased in favor of the Federal Government, and against the states and/or the people.

    The game is rigged. We the People have already lost.

    • kaptinemo says:

      Which is why we had the bald-faced sophistry (and shamelessly displayed ignorance) of the likes of Scalia, voting against Raich. The unspoken fear the statist Supremes had was exactly as delineated: the dismantling of the vast Fed bureaucracy, based upon a favorable ruling for Raich and a (perforce) overturning of Wickard, leading to a massive diminution of Fed power.

      That was their main concern, not whether the case had merit on original principle, but whether adhering to the original, highly limiting language of the Commerce Clause of the Constitution would cause a massive disruption of the power base that enables them to make the rulings they have in favor of the state and against individual liberties.

      Which is why this 10th Amendment sortie is so important. It’s a last-ditch chance to force Uncle to divest himself of powers he was never meant to have, and falsely, fraudulently appropriated due to ideological reasons on the part of a clique of ‘progressive’ activists back in the early years of the 20th century, who were trying trying to engineer social policy at the expense of individual liberties.

      In no small part, it was judicial activism that saddled us with the DrugWar, and it must take judicial activism on the part of the Supremes to end it. But doing so breaks their ideological (as in authoritarian) ‘rice bowl’.

  9. Tony Aroma says:

    What they need to do is establish the medical market as separate and distinct from the illegal black market. The illegal black market is national and international, therefore Wickard v Filburn applies. But if the medical market is ENTIRELY intra-state and not part of the national or international, then the Commerce Clause does not apply.

    • Pete says:

      That would be logical, but Supreme Court cases in this area have not been logical. In Raich, the marijuana was grown completely in state, completely under state medical marijuana laws, and there was no sale of any kind. Yet the Supremes still managed to find that this completely in-state, non-commerce action “affected” interstate commerce.

      • kaptinemo says:

        Which is why I say it was sophistry of the rankest sort, the kind the original Greek practitioners of that philosophy would’ve admired. Convoluted, contorted, distorted…and bunkum from the beginning.

        What’s the old saying again about ‘baffling with bullsh*t’?

      • Matthew Meyer says:

        Well, it has a certain logic. If Ms. Raich and Ms. Monson, over there in the Oroville hills, get their pot for free from some dude in nearby Concow, they are NOT buying it from a guy selling dime bags in Washington Square. If it weren’t for their dawg in Concow, they might have travelled to another state and bought some pot there. (Or someone from another state might have come to them.) THEREFORE, their action has affected interstate commerce, by LESSENING IT! Thus, their superficially local exchange gains a national dimension, and become subject to federal regulation.

        I agree with Clarence Thomas on this one, it’s pretty tough to see how this logic has any limit.

      • DdC says:

        It does effect interstate commerce. If illicit contraband is commerce that is. I don’t think it is since it is an illegal substance it should not be taxed or listed as a legal sale. That is what commerce is. But even with this trampling a non profit sale would effect price and therefore effect intra and interstate prices. In this insane Ganjawar it makes sense. But that is for “commercial” sales, not homegrown by individuals where nothing is traded at a price or given away free. Which brings us back to the poison roots = poison fruit. The CSA is unethical, immoral and mostly UnConstitutional due to the simple fact that it is illegal to fabricate falsehoods just to pass legislation. It’s called Perjury. No human can expect to abide by a law of gossip. Nixon lied, that should be the end of the story and I haven’t seen one challenge to the CSA other than begging for a re-scheduling that is still stalled with the HHS. Can we use the “F” word yet?

        D.E.A. Confirms Grounds To Remove Marijuana From Sched#1 – 10/14/01
        On December 19th, DEA formally asked the Department of Health and Human Services to conduct “a scientific and medical evaluation of the available data and provide a scheduling recommendation” for marijuana and other cannabinoid drugs. This DEA request of HHS means that the DEA has for the first time made its own determination that sufficient grounds exist to remove marijuana from Schedule I of the Controlled Substances Act (CSA). Schedule I is supposed to be limited to hard drugs with addictive propensities and with no legitimate medical usage.

        That’s as far as it went. The IOM is still in file #13…

        Is The DEA Legalizing THC?
        * Con Flicts of Interest Bush Barthwell & Bayer
        So, in other words, if a pharmaceutical product contains THC extracted from the marijuana plant, that would be a legal commodity. But if you or I possessed THC extracted from the marijuana plant, that would remain an illegal commodity.

        The reason for the crackdown on buyers clubs is obvious. They are set to re-schedule THC solely for the sublingual spray’s and want no competition from homegrown. Keeping Ganja and Hemp from taking Wall St. non-renewable synthetic profits. The USA! Qaeda Terrorizing sick people on tax dollars. It’s bad enough when they terrorize sick people but to make them pay for it? That surely is anti-American.

  10. DdC says:

    imho, The 10th still holds up in spite of the commerce santa clause. Prop 215 still legalizes it for anyone for anything. Only commerce, including free donations are opposed by the supremest’. Individuals growing less than the Fed limits of 99 plants are covered under the 10th amendment. Most won’t grow that much so its pretty safe unless you intend to get rich selling it. Some think thats what you get for selling sacraments. I think its a convenience and the Feds are whack. Our Hippie Super Market sells raw milk. The FDA has their own copshops and more power than many realize. They also go after herbs, roots and leaves of non psychoactive plants. If it ain’t white powder its renewable competition. I’d challenge the 5th on the same grounds Leary used against self incrimination. The RAVE Ax clearly abuses the First amendment right of assembly. The faith based rehabs also spit on the no established religion clause. They side step state regulations for their own greed. Carrying a cross doesn’t make one infalible. That takes a jury of cardinals.

    “Our problems stem from our acceptance of this filthy, rotten system.”
    ~ Dorothy Day

    In the RAW

    In an exclusive interview with Good Times,
    Robert Anton Wilson reflects on a world gone mad

    GT: Concerning the battle between the states and the feds over medical marijuana?

    RAW: The 10th Amendment says very clearly that powers not delegated to the United States by the Constitution are reserved to the states and the people. It seems very clear that 55 percent of the voters in California voted to let me have marijuana for my leg pains and the state agreed, but then the Attorney General of the United States said, “Well that doesn’t count.” States have no rights. The people have no rights.

    The FDA vs Raw Milk and the Constitution

    The FDA essentially believes that nobody has the right to choose what to eat or drink. You are only “allowed” to eat or drink what the FDA gives you permission to. There is no inherent right or God-given right to consume any foods from nature without the FDA’s consent.

    This is no exaggeration. It’s exactly what the FDA said in its own words.

    You have no natural right to food

    Big Dairy behind push to eliminate raw milk

    This is the FDA trying to run rampant over States’ rights. The federal government, after all, isn’t satisfied to exercise control over the limited powers granted to it by the U.S. Constitution — it wants to overthrow the tenth Amendment and dictate rules, regulations and laws that the states are being forced to follow.

    This is blatantly unconstitutional. The Tenth Amendment to the U.S. Constitution forbids the federal government from intruding on the laws of individual states, and is only allowed to wield powers expressly granted to it by the Constitution (powers granted by the People, in other words).

    Fighting fire with fire…

    Marijuana Activists Crash White House Webpage in Response to DOJ Threats

    Another Civil Right the Feds think they own…

    That Hippie Sacrament

    If… the machine of government…
    is of such a nature that it requires you
    to be the agent of injustice to another,
    then, I say, break the law.
    ~ Henry David Thoreau,
    On the Duty of Civil Disobediance, 1849

  11. Tony Aroma says:

    @ Pete,

    That’s because they did not distinguish between the national, illicit market and the local, medical market. Since it’s all one market in their eyes, then Wickard v Filburn applies. If someone can establish that the state medical market is independent and not part of the national black market, then the Commerce Clause would not apply. I wonder if the lawyers filing this case thought of that. I hope so, as they will never win a 10th Amendment challenge of the CSA.

  12. DdC says:

    1st amendment challenge

    Not This Shit Again!
    What part of Free Speech don’t these numbnuts get?
    Hatchet and Grossly truly believe its the Bill of Privileges, not Rights.

    Legislation to crack down on online piracy proposed in Senate
    US senators re-introduced a bill Thursday that would give the US authorities more tools to crack down on websites selling pirated movies, television shows and music and counterfeit goods.

    It was introduced by Leahy and Republicans Orrin Hatch of Utah and Chuck Grassley of Iowa.

    “We are sending a strong message to those selling or distributing counterfeit goods online that the United States will strongly protect its intellectual property rights,” Hatch said. “Fake pharmaceuticals threaten people’s lives. Stolen movies, music, and other products put many out of work.”

    The EFF Electronic Frontier Foundation, said the bill attempts to “inject a little due process into the mix,” but it “falls far short of the mark given the potential implications of these actions for online speech.”

    The Center for Democracy & Technology said it still has “serious reservations” about the bill although there were some improvements.

    Hatch and Grassly again… Where’s Frankenfeinstein?
    I thought Leahy was a deadhead?
    Some other blasts from past Censorship attempts…

    Internet Free Speech Goes on Trial – 07/14/01

    An American investigative journalist is being sued over his website’s reports of drugs trafficking in Mexico.

    Making War On Free Speech!
    S. 486/H.R. 2987 Passes – 06/10/00
    S. 486 includes a provision that makes it a federal crime “to teach or demonstrate the manufacturing of a controlled substance, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of a controlled substance.” Wow… … But the language is so broad that it could criminalize almost any published speech about illegal drugs. Perhaps including some passages from my forthcoming book on the politics of medical marijuana, which includes alternatives to smoking that I have seen demonstrated with patients.

    Bong Hits 4 Jesus – 11/25/10

  13. David Marsh says:

    Well, this could get interesting..

    Gonzales v. Oregon – 04-623

    “The CSA’s structure and operation presume and rely upon a functioning medical profession regulated under the States’ police powers.”

    It appears that medical regulation is a power delegated to the states.

    There are other aspects to this but kap used up the fleshed out quota for the day…

  14. Duncan20903 says:

    Say, when the heck did the ACLU end up on our side? The dickheads wouldn’t even talk to me like I was a human being when I was pestering them back in 1991 to take an Establishment Clause violation case for drug violation probatees being required to go to church services twice a week as a condition of probation. I think maybe I should have pestered more aggressively because goddamn if the exact situation I was in didn’t get tossed in a Federal Appeals Court in 1999.

    Does Mandatory AA Violate the Constitution?
    So where does that leave AA, whose members have committed to “turn our will and lives over to the care of God, as we understood Him,” to quote Step #3 of their 12-step program?
    Although the Supreme Court has yet to rule on this question, at least three federal courts of appeal have held that requiring a person to attend Alcoholic Anonymous or Narcotics Anonymous (NA) violates the Establishment Clause of the First Amendment.

    Do Buddhists and Atheists Have to Attend AA?
    In 2007 the Ninth Circuit Court of Appeals held that a parole officer’s demand that a convicted drug offender attend Narcotics Anonymous violated the First Amendment rights of the offender, who claimed to be a Buddhist. Not only that, but the aggrieved offender was free to sue the parole officer for damages, even though state officials are often immune from such suits.


    I haven’t had much affection for the ACLU since I found out that they were indeed fucking assholes for their out of hand dismissal of my Constitutional rights being violated. Mom & Dad forced my to sit through hundreds of Masses when I was a wee lad and I know a Church service when I sit through one. Right down to the collection plate passed at half time.

    Being a devout atheist can be really annoying at times.

    • Duncan20903 says:

      Oops, sorry that was off on a tangent. Back to the main point, it seems the ACLU filed a 10th Amendment violation suit against the Feds back in 2002 and voluntarily allowed it to be dismissed based on the 2009 Holder memo. They called Barry the other day and told him he has some ‘splaining to do and that they’re going to reinstate the suit if the Feds have flip flopped. If?? Come on, Barry has us bent over and is fucking us silly like we were on a rafting trip down the Colorado river.

      Perhaps something good will come out of this and all the idiot potheads that think the Democrats are our friends will finally be disabused of that stupidity. Yes, yes, there I go again with that bad habit of wishful thinking.

      Based on that representation, the ACLU in 2009 voluntarily dismissed a lawsuit against the federal government arising from a 2002 DEA raid of a California medical marijuana garden, in which the ACLU represents a group of plaintiffs including Santa Cruz, Calif. city and county officials, which sanctioned the garden. The federal court had previously upheld the ACLU’s 10th Amendment claim alleging the federal government had selectively enforced federal marijuana laws in an improper federal attempt to undermine and disable the functioning of state medical marijuana laws.


  15. Ian says:

    A tenth amendment case says that the federal government is exercising powers left to the state. The commerce clause says that regulating commerce is a power given to the federal government and not left to the states. As long as manufacturing and distributing cannabis is construed as commerce (it shouldn’t be but SCOTUS does, there is no tenth amendment case for medical marijuana. To win a case on 10th amendment grounds you simply must get SCOTUS to overturn Raich. Regulating medicine is a state power and Montana can set whatever regulations regarding doctors and recommendations they want and the federal government cant intervene… except of course by taking away the weed. Because Gonzales v. Raich affirmed that regulating the interstate transport of recreational and medical drugs is a valid state interest. There is a “rational basis” for the belief banning intrastate (within the state not between states) weed for medical purpose has a substantial effect on the interstate market for drugs. I personally think this “rational basis” review is B.S. but that doesn’t mean that this Montana effort has any chance of success. If you’re interested in an even longer explanation of the legalisms involved and my detailed objections you can check out a paper I wrote about it last year its 11 pages long though. https://docs.google.com/document/d/1-HDRuwuNlzAnHkCBb9HZNiAvcc-XXS2SN5e8NpvDETI/edit?hl=en

  16. Cliff says:

    IMHO, if there is not a recognized legal market for cannabis under US law, then it is not an issue of interstate commerce, it is a case of illegal substances crossing states lines, which is like kidnapping and crossing a state line, both actions are illegal, but it only rises to a federal crime when two or more states are involved.

    The way I see it, the only way that cannabis may be legally regulated between states, under the commerce clause, is under a free legal market, therefore, the commerce clause is being used improperly in the case of cannabis.

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