Federal Over-reach & The Small Axe of Repeal: By Joe Rogoway Esq.
Below is a statement from Joe Rogoway about the Repeal Cannabis Prohibition Act of 2012 in response to the recent federal actions. Please feel free to re-post.
Federal Over-reach & The Small Axe of Repeal: By Joe Rogoway Esq., Co-Proponent of the Repeal Cannabis Prohibition Act of 2012
We can return to the shadows and cages of prohibition while lamenting how sweet it once was to taste liberty. Acquiescence may at first seem to be the reasonable path towards self-preservation. But in the end, submittingto injustice is always worse because the ultimate result is inequity and freedom becomes illusory.
Over the past 15 years, we Californians have transformed what was once an illicit and dangerous black market into a thriving multi-billion dollar a year industry. We have successfully created jobs and tax revenues while responsibly providing safe access to those who are medically qualified. From the example we set, 16 other states and the District of Columbia have followed our lead in enacting their own medical cannabis laws. We have accomplished this together and through the free market.
The federal government now seeks to punish California because of these successes. The rationale behind this new intrusion is an obvious hypocrisy; that the federal government is cracking down on people it feels operate beyond the parameters of a state law that the federal government does not recognize as legitimate. Unfortunately, whatever the rationale, federal law
will continue to preempt state law to the extent that state law legalizes conduct that is in conflict with federal law. This is true regardless of the baseless and preposterous claims made by some that a statewide initiative can somehow opt out of Constitutional preemption.
Federal law does not, however, prevent a state from repealing the state’s own laws. This was recently affirmed in *Pack* v. Superior Court (Oct. 4, 2011), No. B228781, where the California Court of Appeals unanimously ruled:
“There is a distinction, in law, between not making an activity unlawful and making the activity lawful. An activity may be prohibited, neither prohibited nor authorized, or authorized.” *Pack* citing the Supreme Court of California in Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra,* 41 Cal. 4th at p. 952.
The Repeal Cannabis Prohibition Act of 2012 makes cannabis related conduct “neither prohibited nor authorized”. The RCPA also does not establish the sort legal framework that would be required for the affirmative regulation of cannabis. Instead, the RCPA creates a new state agency, the California Cannabis Commission, which itself is vested with the authority to promulgate commercial cannabis regulations.
Under the *Pack* analysis, because the RCPA is not actually “authorizing” conduct that is in conflict with the Controlled Substances Act, the RCPA largely avoids the specter of being preempted through court challenge.
Sensible California believes that the Repeal Cannabis Prohibition Act of 2012 is the most effective weapon available in resisting the current blitzkrieg. Court challenges and continued lobbying will drain our resources with limited results. Other initiative efforts are poorly written and legally untenable.
Through successfully repealing California’s criminal prohibitions on cannabis, we will win the war. State and local governments are responsible for the vast majority of cannabis prosecutions. By forcing the federal government to unilaterally enforce cannabis prohibition, we are drawing them into a costly and frustrating quagmire that they cannot win.
This is precisely how alcohol prohibition began to crumble. Local cooperation ceased and federal agents were stuck enforcing unpopular laws, over multitudes of people, across vast stretches of territory. As was true then, the federal government simply does not have the resources to wage a domestic war of that magnitude. This is particularly true because all adult cannabis related activities will no longer be prohibited which will supply the medical cannabis community cover from the scythe of federal enforcement.
Perhaps this provocation is the sort of folly that is subject to the law of unintended consequences. Through stoking the coals of the complacent and divided, the United States Attorneys Office may have ignited the passions of activism and the togetherness of a unified community. If the patients, lawyers, doctors, medical providers, cannabusinesses, political organizations, and other allies work as one to repeal cannabis prohibition, we will succeed; and that success will itself be a mortal wound to the beast of prohibition. Please join Sensible California and together we will create a new paradigm in cannabis policy.
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Santa Rosa, California 95402
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