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(I have no particular affinity for legalizing marijuana, but I do want to explore the underlying legal principles upon which the 9th circuit based their ruling. Being as how the 9th circuit is the most overruled circuit, and how their rulings nearly always lean left, it's no surprise that this particular ruling is based on what I think is a misapprehension of the Supremacy Clause.
Article VI, Paragraph 2 reads, "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."
I did a little bit of poking around and found quite a bit of disappointing commentary on the clause. One website wrote this astounding statement: "...any federal law--even a regulation of a federal agency--trumps any conflicting state law." This clearly cannot be the case, since a cursory reading of the clause reveals it to be conditional. The word "pursuance" is used, and that is the key word which defines the power granted to the federal government by this clause.
Surprisingly, the best commentary was at Wikipedia. We read: "The Supremacy Clause only applies if Congress is acting in pursuit of its
constitutionally authorized powers. Federal laws are valid and are supreme, so
long as those laws were adopted in pursuance of—that is, consistent with—the
Constitution." This is key. The Constitution, as I have written many times, is the document that creates, defines, and limits the federal government. It very specifically grants powers to government, while leaving the remaining powers to the states or the people.
In order for the Supremacy Clause to apply, the law must be in pursuance to the Constitution, that is, the law must conform to the limited powers granted to the federal government. Based on this criteria, it is not difficult to see that there are many laws on the books that cannot find a basis in the enumerated constitutional powers.
So back to marijuana. On what constitutional provision might the federal government rely to regulate marijuana? Clearly not the Supremacy Clause, since there is no enumerated power in the Constitution that allows the government to regulate substances that people ingest or inhale.
The General Welfare clause, perhaps? We read in Article 1, Section 8: “The Congress shall have the Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defense and general welfare of the United States...” The Left has taken this to mean that government has the power to help the poor, to subsidize businesses, to tax one citizen in order to give money to another, to provide retirement income, unemployment income, and disability income, as well as perhaps thousands of other programs.
But does the Constitution grant the authority to do these things? The Federalist Papers were written to answer objections made to the proposed Constitution. They are rejoinders to points being made by those who believed the Constitution granted too much power to the new federal government. James Madison sought to assuage these fears.
In Federalist #41 he wrote about the "general welfare" clause in response to those who were asserting that this clause granted carte blanche power to the federal government: "Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases."
But does the Constitution grant the authority to do these things? The Federalist Papers were written to answer objections made to the proposed Constitution. They are rejoinders to points being made by those who believed the Constitution granted too much power to the new federal government. James Madison sought to assuage these fears.
In Federalist #41 he wrote about the "general welfare" clause in response to those who were asserting that this clause granted carte blanche power to the federal government: "Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases."
In other words, the General Welfare clause, like the Supremacy clause, empowers government to legislate only within the confines of the specific constitutional powers granted to it. Indeed, if we understand the clause correctly, we would conclude that the clause is a fairness statement. Rather than enhance the welfare of certain specific people (like the poor, the unemployed, the retired, the disabled, people of color, etc.), we should interpret this clause to mean that the government can show no favoritism and grant no special benefit to anyone. It does, after all, use the word "general."
This of course goes against the grain of the Leftist view. They believe the government is the ultimate doer of good in society. All other entities, charities, individuals, even local or state governments, pale in comparison to the wonderful things the federal government can (and should) do. That's why the left chafes under the limitations of the Constitution, because the Constitution contains curtails this noble ability.
As a practical matter, government is god for the Left. The left complains about the political Right not supporting government redistributionist initiatives, indeed, characterizing them as bad Christians. These people want the "separation of church and state" while simultaneously equating government programs with christian virtue.
It therefore appears that the Left grants nearly unlimited power to the federal government, if the cause is viewed as good. One problem with this is that they get to decide what is good. And by extension, they get to decide what is good for you, and also, what you must support as good via your tax dollars. Another problem is that a government that has this kind of power to decide what is good can use that power in pretty much whatever way it wants. So what happens when certain officials get elected to office who have a totalitarian bent? How will they be restrained? They can pass whatever laws they want and go after those who oppose them. What's to stop them?)
HELENA (AP) — A panel of appellate judges has upheld as constitutional the 2011 federal raids on Montana medical marijuana businesses, warehouses and homes that pot providers claimed violated their right to operate under state law.
The three-judge 9th U.S. Circuit Court of Appeals panel on May 15 affirmed U.S. District Judge Donald Molloy’s dismissal of the lawsuit brought by 14 medical marijuana providers and associations.
The appellate judges agreed with Molloy that the federal government did not overstep its authority when it executed more than 26 search warrants across the state in March 2011 as part of a drug trafficking investigation.
The plaintiffs claim they were operating under a voter-approved Montana medical marijuana law and the government interfered with the rights and powers given to the states by the Constitution’s 10th Amendment.
Molloy ruled that state law does not shield medical marijuana providers from federal prosecution. He cited a 2005 U.S. Supreme Court decision that said the Constitution’s supremacy clause applies in medical marijuana cases.
The supremacy clause says that federal law prevails if there is any conflict between state and federal statutes.
The appellate panel agreed there was no violation of the 10th Amendment, and it also dismissed the providers’ argument they have a fundamental right to cultivate marijuana for medical purposes.
New Mexico attorney Paul Livingston, who represented the plaintiffs, said Friday the 2005 Supreme Court decision cited by Molloy and the 9th Circuit panel should be re-examined. Today, there is a much broader acceptance of medical marijuana across the nation and voters have legalized the recreational use of marijuana in Washington state and Colorado, he said.
Livingston is considering an appeal to the full 9th Circuit court and the U.S. Supreme Court, but says he needs more support from medical marijuana advocates. Up to this point, interest in the case has been lacking, he said.
“None of that is of any significance if nobody cares about this case,” he said of the appeals.
The Montana Cannabis Information Association, which filed a friend-of-the court brief in the case, has previously said it is reluctant to become more involved because all of its resources are going to a state court challenge of a 2011 Montana law restricting how medical marijuana is distributed.
The U.S. Attorney’s Office earlier this month wrapped up its final prosecution from the drug-trafficking investigation. The probe has resulted in 33 provider convictions and the dwindling of a once booming medical marijuana industry.
Five of the individual plaintiffs were convicted in the probe.
Thousands of medical pot providers have gone out of business since the raids, and a state health department survey shows the number of registered users have fallen to less than a quarter of their 2011 numbers.
The three-judge 9th U.S. Circuit Court of Appeals panel on May 15 affirmed U.S. District Judge Donald Molloy’s dismissal of the lawsuit brought by 14 medical marijuana providers and associations.
The appellate judges agreed with Molloy that the federal government did not overstep its authority when it executed more than 26 search warrants across the state in March 2011 as part of a drug trafficking investigation.
The plaintiffs claim they were operating under a voter-approved Montana medical marijuana law and the government interfered with the rights and powers given to the states by the Constitution’s 10th Amendment.
Molloy ruled that state law does not shield medical marijuana providers from federal prosecution. He cited a 2005 U.S. Supreme Court decision that said the Constitution’s supremacy clause applies in medical marijuana cases.
The supremacy clause says that federal law prevails if there is any conflict between state and federal statutes.
The appellate panel agreed there was no violation of the 10th Amendment, and it also dismissed the providers’ argument they have a fundamental right to cultivate marijuana for medical purposes.
New Mexico attorney Paul Livingston, who represented the plaintiffs, said Friday the 2005 Supreme Court decision cited by Molloy and the 9th Circuit panel should be re-examined. Today, there is a much broader acceptance of medical marijuana across the nation and voters have legalized the recreational use of marijuana in Washington state and Colorado, he said.
Livingston is considering an appeal to the full 9th Circuit court and the U.S. Supreme Court, but says he needs more support from medical marijuana advocates. Up to this point, interest in the case has been lacking, he said.
“None of that is of any significance if nobody cares about this case,” he said of the appeals.
The Montana Cannabis Information Association, which filed a friend-of-the court brief in the case, has previously said it is reluctant to become more involved because all of its resources are going to a state court challenge of a 2011 Montana law restricting how medical marijuana is distributed.
The U.S. Attorney’s Office earlier this month wrapped up its final prosecution from the drug-trafficking investigation. The probe has resulted in 33 provider convictions and the dwindling of a once booming medical marijuana industry.
Five of the individual plaintiffs were convicted in the probe.
Thousands of medical pot providers have gone out of business since the raids, and a state health department survey shows the number of registered users have fallen to less than a quarter of their 2011 numbers.
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