ANOTHER HUGE MEDICAL MARIJUANA WIN

ANOTHER HUGE MEDICAL MARIJUANA WIN

By Carl F. Worden

As I’ve written before, the federal judiciary is getting better and better at protecting states’ rights under Article X of the Bill of Rights, and this most recent decision by U.S. District Judge Jeremy Fogel in San Jose, California confirmed what a previous federal appeals court found, being that where no commerce is involved, the federal Controlled Substances Act that bans Marijuana has no jurisdiction.

As I wrote when the previous appeals court decision was handed down, Congress made an end run around Article X by claiming federal law can use the Commerce Clause of the Constitution to ban certain substances.

A little history is required here to bring you first-time readers up to speed.

Back when Prohibition was enacted, Congress wisely passed a constitutional amendment giving the federal government the power to ban the manufacture and distribution of alcohol. They did that because they had to. The Constitution does not give the federal government the power to regulate a substance like alcohol, and Article X simply states that if the Constitution does not explicitly give the federal government such a power, then that power is the exclusive province of the individual states.

But when Congress decided to ban certain substances like Marijuana and other drugs, they didn’t pass a constitutional amendment giving them that right. Instead, they claimed they already had that right under the Commerce Clause, since they had the right to regulate commerce anyway, and because most “illegal” drugs are assumed to have been “sold”.


Well, that little end run has cost the feds dearly, and this decision confirming the previous appeals court ruling spells real trouble for the feds in the future.


For example, let’s say a person is found with 2 pounds of methamphetamine that he personally produced in his own lab. The assumption is that he was planning to sell it, but short of a sting where he did sell it to an undercover law enforcement officer, it’s not a federal case. Sure, if the state he was arrested in has laws prohibiting the possession, manufacture and distribution of meth, the accused can be prosecuted in state court, but the feds would have to prove commerce was involved in order to apply the federal Controlled Substances Act. Very interesting, don’t you think?


In this instant case, the nice folks growing the marijuana on their land in Santa Cruz, California, where I lived before moving to Southern Oregon, were producing it to be freely given to people who had been prescribed marijuana under California’s Medical Marijuana Law.


The feds claimed the state law violated their “superior” Controlled Substances Act, so they raided the Alliance for Medical Marijuana’s stash and threatened to withhold prescription drug licensing of California physicians who prescribed marijuana to their patients. Well with this decision, the judge flat told the feds to back off and leave the group alone, so long as they were not selling the marijuana to patients, transporting it across state lines, or using it for non-medicinal purposes.


Now bear in mind, California hasn’t passed a law allowing the medicinal use of heroin or methamphetamine, and in fact bans those drugs. But if the feds try to prosecute such a case, they must prove commerce was involved, or they have no jurisdiction. This is important for those accused, since most states prefer to turn over such a case to the feds for two reasons: They don’t have to prosecute the case at state expense, and federal sentencing guidelines are more strict and provide for no parole or early release.

So if someone was convicted in federal court of mere drug possession, but the feds had not established that commerce was involved, then that convicted person may have a strong basis for appeal and perhaps even freedom if the state laws he violated were now beyond reach due to the state law's statute of limitations.


Example: A person was convicted in federal court for drug possession where no commerce was established. He was sentenced to 25 years. He has served 10 years in federal prison, which is well past the statute of limitations of the state where he was arrested, but the state never prosecuted him because the feds took the case. His federal conviction is vacated due to lack of jurisdiction under this new ruling, and the state cannot prosecute him either. He goes free, and he can now sue the feds for his wrongful conviction and prosecution.

It will interesting to see how this latest federal ruling plays out, especially if the feds push the case before the Supreme Court, and the Supremes confirm the lower court's findings – which I think they will.


Carl F. Worden






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