Category Archives: Federalism

N.M. Gearing Up To Face Drug Police On Federalism

New Mexico has voted to legalize medical marijuana. Starting tomorrow, they’re raising the bar: the state will make sure a safe and legal distribution system in created:

New Mexico has a new medical marijuana law with a twist: It requires the state to grow its own.

The law, effective Sunday, not only protects medical marijuana users from prosecution — as 11 other states do — but requires New Mexico to oversee a production and distribution system for the drug.

“The long-term goal is that the patients will have a safe, secure supply that doesn’t mean drug dealers, that doesn’t mean growing their own,” said Reena Szczepanski, director of Drug Policy Alliance New Mexico.

The state Department of Health must issue rules by Oct. 1 for the licensing of marijuana producers and in-state, secured facilities, and for developing a distribution system.

There’s a bit of a thorny issue, in that I don’t the state should be in business regulating and distributing narcotics. But I’m going to set that aside at this point, because the situation they’re setting up is a better deal that what New Mexico currently has in place.

The really interesting thing, though, is that they’re throwing down a bit of a gauntlet here. And I’m guessing Alberto Gonzales, or whoever succeeds him as AG, is going to pick it up.

The distribution and use of marijuana are illegal under federal law, and the U.S. Supreme Court ruled in 2005 in a California case that medical marijuana users can be prosecuted.

Faced with that dilemma, the health department has asked state Attorney General Gary King whether its employees could be federally prosecuted for running the medical marijuana registry and identification card program, and whether the agency can license marijuana producers and facilities.

Unfortunately for anyone licensed by New Mexico, the Department of Justice doesn’t care about your silly state laws. Marijuana is a dangerous gateway drug, leading our children down a path of failure and ruin. Didn’t you see Reefer Madness?

How do I know they’ll trump state laws? Well, if Raich isn’t enough, you can go one step farther and look at the Ed Rosenthal case. A man specifically deputized by the city of Oakland to grow marijuana for medical marijuana patients was federally prosecuted, and for an added kicker, couldn’t reveal to the jury that what he was doing was specifically approved by the city government.

n 2002, federal agents arrested Ed, even though he had been deputized by the City of Oakland to grow marijuana for medical use. In a stunning setback for the federal government, he was sentenced to only one day in prison. In 2006 the 9th Circuit Appeals Court overthrew Rosenthal’s conviction. Several months later the US Federal Attorney’s office re-indicted him. A new trial commenced on 14 May 2007.

On May 31 2007, it was announced that Ed had been convicted again for three of the five charges against him: one conspiracy count; one count of growing, intending to distribute and distributing marijuana; and one count of using a commercial building as a site for growing and distributing marijuana. He was acquitted of growing and distributing marijuana at the Harm Reduction Center medical-marijuana club in San Francisco. The jury reached a deadlock on whether he had conspired to grow and distribute at the Harm Reduction Center. U.S. District Court Judge Charles Breyer once again prohibited Ed’s lawyers from telling the jury that his work was sanctioned by Oakland government officials, a main point of contention for the jurors of Ed’s first trial. Ed will see no more jail time and will, of course, appeal.

I’m sure the people setting up the licensing system won’t face any prosecution. They may survive under sovereign immunity. But I’d warn anyone considering applying for a state license to remain on guard. The feds don’t care about state law, and they don’t care about the 9th or 10th Amendment. They’ll fight the Drug War ruthlessly, regardless of what the American people or the government of New Mexico have to say about it.

Monday Open Thread: Best & Worst States

As someone who recently moved cross-country, I know that there are definite advantages and disadvantages to living in certain places. Government regulation in a state rarely defines life in that state, but can definitely impact quite a lot of aspects. Now that I live in California, I know that the advantages of perfect weather and proximity to the beach are offset by a few things: high gas prices, high taxes, and poor government (i.e. bad public schools, etc). That doesn’t even include things such as the regulatory state increasing the cost of every other product.

For the open thread, perhaps tell us a little about where you live, and why it’s a good or bad state… I’d particularly love to hear about some of the folks up in the Free State; once I can get my wife to stop voting Democrat, I might try to convince her to move cross-country to the bitter cold of freedom :-)

Why Is The Federal Government Worried About “Hate Crimes” ?

Today, the House of Representatives passed a bill that would add sexual orientation as a category to which existing federal “hate crimes” legislation would apply:

WASHINGTON, May 3 — The House of Representatives voted today to extend “hate crime” protection to people who are victimized because of their sexuality. But the most immediate effect of the bill may be to set up another veto showdown between Democrats and President Bush.

By 237 to 180, the House voted to include crimes spurred by a victim’s “gender, sexual orientation or gender identity” under the hate-crime designation, which now applies to crimes spurred by the victim’s race, religion, color or national origin.

“The bill is passed,” Representative Barney Frank, a Massachusetts Democrat who is gay, announced to applause, most of it from Democrats.

Similar legislation is moving through the Senate. But even assuming that a bill emerges from the full Congress, it will face a veto by President Bush on grounds that it is “unnecessary and constitutionally questionable,” the White House said before the House vote.

The House did not pass the bill by a margin wide enough to override a veto, which requires a two-thirds majority. The Senate is not expected to do so either.

I’m about to write something I don’t think I ever have here at The Liberty Papers…….. President Bush is absolutely correct about this one. The Federal Government does not belong getting involved in prosecuting crimes like this; this should be exclusively a matter for the states.

Personally, I don’t think very much of hate crime laws. If you’re assaulted, does it really matter why someone did it ? And why is it right to punish someone more severely because of who their victim was ? Nonetheless, if states choose to make assaulting someone because of their race, gender, sexual orientation, or religion, then they are free do so.

Andrew Sullivan is, not surprisingly, upset about the threatened  veto and has this to say about the federalism argument:

The federalist argument equally applies. If it is the position of the feds that this should be left entirely to the states, fine. But to say that the feds have a role in matters of race and religion, but not sexual orientation again makes no logical sense, unless the federal government wants to send a strong message about the moral and human and political inferiority of gay people.

From my point of view, though, the federalism argument applies equally against other existing federal “hate crimes” laws. Quite honestly, I think those laws should be repealed and the matter left to the states, where it belongs. Moreover, though, as Dale Carpenter points out, there’s more to this bill than just adding sexual orientation to existing laws:

 The problem with this criticism, however, is that the bill does much more than simply add “sexual orientation” to the existing federal law on hate crimes passed in 1968. It’s a whole new statute. Protecting gays is only one element, though the most publicized. The bill considerably expands federal jurisdiction over hate crimes in general, for all categories, by eliminating the current requirement that the crime occur while the victim is engaged in a federally protected activity. That jurisdictional limitation has kept federal involvement very limited in an area where state authority has traditionally reigned. The new law also calls for more federal resources to be expended on all classes of hate crimes. The veto of an amendment merely adding sexual orientation to existing federal law would pretty clearly reflect an anti-gay double-standard. A veto of this much more comprehensive bill does not.

Given this, the bill is positively screaming to be vetoed. Hopefully, President Bush will follow through with his threat.

Fred Thompson On Federalism

First, let me make it clear. Fred Thompson is not a libertarian, he’s a conservative. Nonetheless, he does have interesting things to say.

Today, he has a column up at NRO that addresses criticism about his votes on tort reform while in the Senate, but has this interesting quote about federalism:

As I understood it, states were supposed to be laboratories that would compete with each other, conducting civic experiments according to the wishes of their citizens. The model for federal welfare reform was the result of that process. States also allow for of diverse viewpoints that exist across the country. There is no reason that Tennesseans and New Yorkers should have to agree on everything (and they don’t).

Those who are in charge of applying the conservative litmus test should wonder why some of their brethren continue to try to federalize more things — especially at a time of embarrassing federal mismanagement and a growing federal bureaucracy. I am afraid that such a test is often based more upon who is favored between two self-serving litigants than upon legal and constitutional principles. Isn’t that what we make all the Supreme Court nominees promise not to do?

Adhering to the principles of federalism is not easy. As one who was on the short end of a couple of 99-1 votes, I can personally attest to it. Federalism sometimes restrains you from doing things you want to do. You have to leave the job to someone else — who may even choose not to do it at all. However, if conservatives abandon this valued principle that limits the federal government, or if we selectively use it as a tool with which to reward our friends and strike our enemies, then we will be doing a disservice to our country as well as the cause of conservatism.

There are many things about the Constitution that can be considered the work of genius, but perhaps the most important among them was the idea of Federalism. As originally intended, the Federal Government was supposed to have only limited jurisdiction over matters that truly impacted the nation as a whole. The vast majority of the rules that impacted every day life were supposed to have been made at the state and local levels, where people would have more control over their legislators.

As with most everything else that the Founders believed, that idea has faded into history. Today, the Federal Government inserts itself into virtually every aspect of our lives and the states have become more and more irrelevant. Over the past 30 years, the Federal Government has used the power of the purse to force the states to change policy on everything from the drinking age to seatbelt laws. And when the voters of California decide that people who are dying of cancer should have the right to utilize marijuana to alleviate their pain and suffering, the DEA steps in and shuts down the clinics……and the Supreme Court says it’s okay.

With the exception of Ron Paul, nearly every Presidential candidate is talking about what the Federal Government can do for you. Almost nobody is talking about the idea that maybe there are some things that it shouldn’t be doing at all.

If Fred Thompson becomes the exception to that rule, then he may be a welcome addition to the race.

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