squarepusher
10-06-2010, 12:24 PM
News Flash: Prop. 19 Can't Legalize Recreational Use! But If It Passes, It CAN Subject Patients to All Its Burdensome Regulations, Control and Taxation.
One of the huge problems with Prop. 19 on which I didn't concentrate -- I was mainly trying to figure out what its actual terms did to patients' rights -- is that it purports to legalize recreational use. But while medical use can be legalized under state law and also federal law, recreational use remains totally illegal under federal law, which cannot be so easily trumped by a state law legalizing recreational use.
In California, medical marijuana laws have been held by appellate courts, most recently in Qualified Patients’ Association v. City of Anaheim (08/08/10) ___ Cal.App.4th ____, to not be pre-empted or prohibited by the federal Controlled Substances Act (CSA). The reason? Because, according to the U.S. Supreme Court, the CSA’s purpose “is to combat recreational drug use, not to regulate a state’s medical practices.” (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 826-827, emphasis added, citing Gonzales v. Oregon (2006) 546 U.S. 243, 272-273.)
So, if California tries to legalize recreational use by passing Prop. 19, even state courts will conclude, based on the current state of the law, that the purported state legalization laws are pre-empted and/or prohibited by federal law. (Whether the federal government, rather than the state, should have the power to regulate recreational drug use, is another subject, but that's going to be a long and expensive legal and/or political battle.)
What will that mean in terms of Prop. 19? Well, Prop. 19 includes a severability clause, so that if some portion of it is determined to be unenforceable that portion can be severed from the rest. Worst case scenario: the recreational use will be struck out, and patients will be left with all the bad aspects of Prop. 19 -- the total taxation, regulation and control aspects.
Even before litigation ends up establishing that recreational use is prohibited by the CSA, collectives and dispensaries shoiuld probably avoid distgributing marijuana to recreational users. Based on how the CSA has been held to reach recreational use, if Prop. 19 passes, any collective, dispensary or other distribution model for medical marijuana would be, in my opinion, ill-advised to begin to serve recreational users as well as medical users. I can well imagine the DEA raiding such establishments that have "commingled" recreational and medical use, since marijuana itself cannot be indentified as "medical" or "recreational." The DEA could seize everything, and prosecute the distribution centers and their owners.
One of the huge problems with Prop. 19 on which I didn't concentrate -- I was mainly trying to figure out what its actual terms did to patients' rights -- is that it purports to legalize recreational use. But while medical use can be legalized under state law and also federal law, recreational use remains totally illegal under federal law, which cannot be so easily trumped by a state law legalizing recreational use.
In California, medical marijuana laws have been held by appellate courts, most recently in Qualified Patients’ Association v. City of Anaheim (08/08/10) ___ Cal.App.4th ____, to not be pre-empted or prohibited by the federal Controlled Substances Act (CSA). The reason? Because, according to the U.S. Supreme Court, the CSA’s purpose “is to combat recreational drug use, not to regulate a state’s medical practices.” (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 826-827, emphasis added, citing Gonzales v. Oregon (2006) 546 U.S. 243, 272-273.)
So, if California tries to legalize recreational use by passing Prop. 19, even state courts will conclude, based on the current state of the law, that the purported state legalization laws are pre-empted and/or prohibited by federal law. (Whether the federal government, rather than the state, should have the power to regulate recreational drug use, is another subject, but that's going to be a long and expensive legal and/or political battle.)
What will that mean in terms of Prop. 19? Well, Prop. 19 includes a severability clause, so that if some portion of it is determined to be unenforceable that portion can be severed from the rest. Worst case scenario: the recreational use will be struck out, and patients will be left with all the bad aspects of Prop. 19 -- the total taxation, regulation and control aspects.
Even before litigation ends up establishing that recreational use is prohibited by the CSA, collectives and dispensaries shoiuld probably avoid distgributing marijuana to recreational users. Based on how the CSA has been held to reach recreational use, if Prop. 19 passes, any collective, dispensary or other distribution model for medical marijuana would be, in my opinion, ill-advised to begin to serve recreational users as well as medical users. I can well imagine the DEA raiding such establishments that have "commingled" recreational and medical use, since marijuana itself cannot be indentified as "medical" or "recreational." The DEA could seize everything, and prosecute the distribution centers and their owners.