CONSIDER THE CONSTITUTIONALITY OF PROP. 19

In the debate over the wisdom of legalizing marijuana for fun and
profit, too little has thus far been said about the constitutionality
of Proposition 19 should it become California law; moreover, what
would remain of that law in an inevitable challenge before the United
States Supreme Court is an elephant in the kitchen about which
California voters seem unaware.

Assume Proposition 19 passes and for reasons advanced by proponents of
the measure, namely that every third American has used marijuana, and
that its popularity is a function of marijuana's relatively harmless
effects, making its recreational legalization less problematic than
"alcohol or cigarettes, which are both legal for adult
consumption."

The legalization of commercial marijuana offers an even more
compelling reason to "just say yes" to Proposition 19 given its
promise of "potential increased tax and fee revenues in the hundreds
of millions of dollars annually and potential correctional savings of
several tens of millions of dollars annually."

The mantra of Proposition 19 proponents is "no legalization without
taxation," generating, as a consequence, new revenue streams to fund
what matters most - "jobs, health care, schools and libraries, roads
and more."

Could Proposition 19 be challenged on constitutional grounds, and if
so, what would be left standing after the Supreme Court passed
judgment on it?

California was the first state not only to criminalize marijuana, but
to legalize it for medical purposes. No court of last resort, it must
be said, has held that California law lifting criminal sanctions on
medical marijuana for seriously ill Californians, their physicians and
caregivers, is preempted by the federal law that imposes criminal
sanctions on marijuana use for any purpose, and this is so for reasons
not readily apparent.

California's Compassionate Use Act that immunizes medical marijuana
from its criminal code authorizes no behavior that federal law can
preempt. Thus, while marijuana use for any reason remains a federal
crime, a decision by a sovereign state not to act to impose a criminal
penalty on medical marijuana means that no state-federal conflict
exists, rendering federal preemption of medical marijuana impossible.

Precisely the same constitutional logic would apply to a California
law that lifts criminal sanctions against recreational use of
marijuana. Legally speaking, the distinction between recreational and
medical use of marijuana would amount to a distinction without a
constitutional difference.

The practical difference, on the other hand, would be enormous since
every third Californian could be arrested for felonious federal
behavior. Then, again, since President Barack Obama's Justice
Department has established a policy not to prosecute "individuals
whose actions are in clear and unambiguous compliance with existing
state laws providing for the medical use of marijuana" because federal
enforcement resources are insufficient to police the large number of
offenders, surely the imbalance between federal resources and
potential California targets would be hopelessly exaggerated if
marijuana for fun violates no part of the state criminal code.

Consider, though, the constitutional conflict between federal law and
the legalization of marijuana for commercial gain. Proposition 19
would authorize local governments to raise revenue from a tax imposed
on a banned federal substance - another first for the Golden State.

One might wonder why Californians would buy marijuana otherwise so
easily cultivated in one's backyard. One might wonder, too, about the
projected revenue estimates from buying and selling marijuana since
competition among the state's 475+ local governments to attract
cannabusinesses would drive tax rates down along with revenue-raising
projections.

But one need not wonder about the Supreme Court's constitutional take
on a California law that taxes a federally banned substance. If a
local government imposes a tax on marijuana and a subsequent penalty
for not paying that tax, federal and state law would require
conflicting behavior: Not paying the state tax is evidence that state
law has been violated, but paying the tax is evidence that federal law
has been violated.

Thus, since state and federal law require conflicting behavior, and
since federal law governing controlled substances is made in pursuance
of the Constitution and is, therefore, the supreme law of the land,
the Supreme Court would void the "for profit" element of Proposition
19, leaving undisturbed private consumption of marijuana "for fun."

The elephant in the kitchen of California voters? If there is any
truth to the claim that for every dollar raised from alcohol and
tobacco taxes, nearly $9 are spent to repair the carnage of abuse,
adding yet another intoxicant to the mix could compound already
staggering social and financial costs.

But voiding the legalization of marijuana for commercial purposes
would leave the state with no new revenues for existing problems - not
the promise of Proposition 19, and - worse - no new money for new
problems linked to recreational abuse of marijuana - a nightmare
consequence of the inevitable application of the constitutional
principle of federal preemption.