Comments on Althouse: "The election was dragged into the courts by the G...

ADK: Are you saying the common law is not state la...

2005-12-01T07:51:00.000-06:00

ADK: Are you saying the common law is not state law, that this is an area of federal common law? I think not. In any case, the sentence of my article that you've fixed on is a discussion of the Stevens dissent, and he is most certainly talking about wanting to constrain federal law to leave room for state lawmaking. Here is the key passage that I am writing about:

"The overbroad language of the Court's opinion is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union. That respect imposes a duty on federal courts, whenever possible, to avoid or minimize conflict between federal and state law, particularly in situations in which the citizens of a State have chosen to "serve as a laboratory" in the trial of "novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 76 L. Ed. 747, 52 S. Ct. 371 (1932) (Brandeis, J., dissenting). In my view, this is such a case. By passing Proposition 215, California voters have decided that seriously ill patients and their primary caregivers should be exempt from prosecution under state laws for cultivating and possessing marijuana if the patient's physician recommends using the drug for treatment. n4 This case does not call upon the Court to deprive all such patients of the benefit of the necessity defense to federal prosecution, when the case itself does not involve any such patients."

If you want to criticize my use of the word preemption, address this passage, which is the part I am writing about.

Ann: Sorry about another delayed reply. I won't ...

2005-12-01T04:34:00.000-06:00

Ann: Sorry about another delayed reply. I won't repeat my point again, I think I've made it pretty well by now. I will say this: the necessity defense the Court considered was the common law defense of necessity and not a "state law" defense. So, that spin/explanation doesn't quite work either. You misstated the holding in OCBC in your article. You're right: it was a minor section of the article. I don't know why you don't just own up to the error.

Oakland Cannibis is about the scope of the federal...

2005-11-29T16:23:00.000-06:00

Oakland Cannibis is about the scope of the federal statute and whether it precludes a state law defense of necessity. Many of the briefs in the case use the term preemption for this. The Court reads the statute broadly enough that there is no room for the state law defense, which is thus preempted.

ADK: You're focusing on one word in a minor senten...

2005-11-29T15:52:00.000-06:00

ADK: You're focusing on one word in a minor sentence in the article for some reason, not on the subject of the article at all. Good luck with your future litigation, but it's quite apparent that California's effort to legalize medical marijuana cannot overcome the fact that it is criminal under federal law. Whether the word "preempt" is too narrow a term of art to apply to the situation is not something I'm going to debate here. Please don't repeat your point again.

Ann: Sorry for the delayed response, these law fi...

2005-11-29T14:46:00.000-06:00

Ann: Sorry for the delayed response, these law firm hours are starting to interfere with my internet time.

First, California has not just carved back its own laws. The state and cities have various laws to implement the Compassionate Use Act that regulate medical marijuana (such as a state law for medical marijuana ID cards, and local laws licesning medical marijuana stores.) Now, it may be that one day (perhaps if San Diego goes through with its planned case), a court will find that the federal drug laws preempt California's various medical marijuana regs. But, that day certainly hasn't happened yet.

And, moreover, this is all tangential to my main concern with your article: namely your discussion of the Oakland Cannabis Buyers' Cooperative case. You claimed the Court held that federal drug laws preempted state drug laws in your article, but that isn't at all what the Court held. In fact, the word preempt does not appear in the opinion at all.

For all I know, maybe its largely the fault of an editor at the Penn law journal. But, either way, it seems to me that what you wrote about OCBC in your Penn article is factually incorrect.

I will add that the reason this is properly concei...

2005-11-28T07:19:00.000-06:00

I will add that the reason this is properly conceived of as preemption is that the federal government tried to do something and the state government tried to do something (authorize the use of medical marijuana), and the regulated persons could not follow both laws. If they tried to use the state law, they would be in violation of federal law, and they would need to follow the federal law. Following the state law is cause for arrest under the federal law. That's a "conflict preemption" situation.

ADK: The reality is that the medical marijuana pro...

2005-11-28T07:10:00.000-06:00

ADK: The reality is that the medical marijuana program is about activity that is all criminal under federal law. The state purported to legalize something, and it could not, because of the superior law of the CSA. You're just referring to the residual effect of the statute as it serves as a carving back of the state's own criminalization of drugs. That is the absence of regulation, which of course, federal law doesn't interfere with. If you want to get into an argument about whether the word preemption should be used to refer to this situation, it would require a lot of debate involving language from cases. I'm not doing that here.

Ann: I wasn't referring you to the definition to ...

2005-11-28T01:07:00.000-06:00

Ann: I wasn't referring you to the definition to be disrespectful; I was using it to explain why I think what you said in your article is incorrect. The definition I cited is my understanding of what preemption means and I thought the website did a better job at saying it than I could. I figured that putting the definition down would allow you to correct me if you think that I have the wrong definition. While I'm not a law professor, I am a lawyer (though a relatively recent grad) and I feel pretty confident that the definition I gave is exactly what preemption means.

You say that you've "tried to explain it" to me but nothing in your explanations--which again, I appreciate your taking the time to post--rebuts my position. I agree with you that the federal government can continue to enforce its laws outlawing marijuana and that medical marijuana is not legal under federal law. But, that doesn't mean federal law "preempts" the Compassionate Use Act.

If my understanding of "preemption" is wrong, I'll admit I'm wrong and apologize to you. But, if I'm right about what preemption means, I just don't see how you can stand by the claim that the CSA "preempts" California's medical marijuana law.

ADK: I'm glad you appreciated my response, and I a...

2005-11-26T17:26:00.000-06:00

ADK: I'm glad you appreciated my response, and I advise you to read it again. I've tried to explain it to you, despite the disrespect you've shown toward me. I'm a constitutional law professor and have been for 20 years, so I don't appreciate being referred to quick definitions on the internet!

Ann: I appreciate your taking the time to engage ...

2005-11-26T15:26:00.000-06:00

Ann: I appreciate your taking the time to engage me in discussing this. It seems that you are saying that, because California's medical marijuana law does not prevent the federal government from enforcing its own law prohibiting marijuana for any use, federal drug laws "preempt" the California's medical marijuana. I'm sorry, but that absolutely is not preemption, no matter how you try to phrase it.

Here's a very quick definition of preemption (a little way down the page): “Preemption” describes the removal of a government’s power to regulate a specific subject matter. When an act of Congress removes a local or state government’s power to regulate a specific subject matter, the process is called “federal preemption.”

Federal drug laws do not remove California's power to enact the Compassionate Use Act. The CUA remains the law of the land in California to this day and California's officials all follow it. When they don't follow it they get sued.

One last question, if federal law already "preempted" California's law, why would the city of San Diego be planning a lawsuit to overturn California's law on those exact grounds?

ADK: The state can make marijuana illegal to the s...

2005-11-26T07:16:00.000-06:00

ADK: The state can make marijuana illegal to the same degree as federal law does and thus engage in parallel enforcement. The Compassionate Use Act functions to carve back the amount of prohibition that exists under state law. However the act cannot function to make it legal, because it is illegal under federal law. The effort to authorize the use is thus preempted. However ithe Compassion Use Act does stand as an announcement that the state authorities will leave these users alone.

Ann: The CSA absolutely does not preempt state me...

2005-11-26T05:22:00.000-06:00

Ann: The CSA absolutely does not preempt state medical marijuana laws. Medical marijuana is still legal under state law in California, even after Raich. I assume you're aware of this, having just written a law review article about Raich. You must know that what you wrote in the U Penn article is not accurate, I'd hope you admit it.

Of course, California's law does not change or override federal law. The feds can still enforce their own marijuana laws. But federal law does not "preempt" California's law, which is what you wrote in your article and appear to stand by even now. (Incidentally, OCBC was primarily about medical necessity and not federalism, as you also erroneously state in your article.) Either you aren't using "preempt" correctly in your article, or you have a severely mistaken understanding of OCBC. But, what you said in your article is definitely inaccurate. Or, do you really maintain that California's medical marijuana law is invalid--that it has been preempted by federal law?

The thing that makes me doubt what you're saying, ...

2005-11-25T09:22:00.000-06:00

The thing that makes me doubt what you're saying, Professor Althouse, is the "good for one ride only" expansive nature of the equal protection analysis used in the opinion, with the court looking at varying standards in vote counting throughout the state that were not remedied by the Florida Supreme Court's order and insisting this gave rise to equal protection violations, but then saying weakly, "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." Bush v. Gore, 531 U.S. 98, 109 (2000).

As for the concurrence by Rehnquist, which you apparently endorse, the federal interest in enforcing the interests of the state legislature over that of the state's courts which the former Chief Justice divines from Article II, Section 1, Clause 2 seems a somewhat weaker reed than the Southern States’ hundred year war against the Fourteenth Amendment that the Supreme Court addressed in the civil rights cases. I am happy to see that "in ordinary cases, the distribution of powers among the branches of a State's government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character." Id. at 112, Rehnquist, C.J., concurring. However, the fact that the concurrence then proceeds to simply parse state law in order to do nothing but that strikes me as contrary to notions of federalism.

The dissent raises a disturbing point when it argues that, "The federal questions that ultimately emerged in this case are not substantial. Article II provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Ibid. (emphasis added). It does not create state legislatures out of whole cloth, but rather takes them as they come-as creatures born of, and constrained by, their state constitutions . . . . Neither § 5 nor Article II grants federal judges any special authority to substitute their views for those of the state judiciary on matters of state law." 531 U.S. 123, Stevens, J., dissenting.

I'm not an expert on this subject at all, but it all strikes me as a sad exercise in realpolitik -- as a reminder that five members of the Court can literally do anything they set their mind to. In mmy view, the Court expended large amounts of its carefully guarded moral capital in choosing the President the majority felt most comfortable with.

It reminds me all too much of the congressional overreach in the Schiavo case, which also cast federalism aside to reach the result conservatives favored in that instance. I somehow doubt that the same five justices would have reached the same results if the parties had been reversed. Do you?

ADK: The CSA preempts the state's medical marijuan...

2005-11-25T07:19:00.000-06:00

ADK: The CSA preempts the state's medical marijuana program which is in conflict with it. The state tried to authorize a use of marijuana that the federal law prohibits. The state can't do that. Other state drug laws aren't preempted, because they aren't in conflict with federal law.

In any case, whether I wrote the words of my articles or not, I'm responsible for what's in them. If there are mistakes, they should be caught in the editing process too, so that is where the contribution of the law review editors is important.

Anyway, this isn't a mistake.

Ann wrote: "No one has ever written even a small p...

2005-11-25T03:45:00.000-06:00

Ann wrote: "No one has ever written even a small part of an article for me."

So, are you the one who included a completely factually inaccurate statement in your 2004 U Penn article? In "Vanguard States, Laggard States," you say that the Supreme Court, in Oakland Cannabis Buyers' Cooperative (OCBC), held federal drug laws "preempt" California's medical marijuana law. Of course, that is not at all what the Court held in OCBC. For the non-lawyers out there, "preempt" has a very specific meaning in this context: "To replace or supersede (a law) by preemption (such state laws are not preempted by the federal Energy Reorganization Act of 1974 - National Law Journal);
To preclude or bar (an action) by preemption (federal airline deregulation does not preempt claims under state contract law - National Law Journal)."

In other words, preemption means that the state law can't exist--that it's replaced by federal law. OCBC held that a medical marijuana cooperative could not rely on a defense of "medical necessity" to escape federal prosecution. It had absolutely nothing to do with whether federal drug laws preempt state medical marijuana laws and state medical marijuana laws remain in force to this day. Indeed, if federal drug laws preempted state drug laws, states couldn't enact any drug laws of their own. Drug enforcement would be left entirely to the federal government. I've never heard anyone seriously suggest that the federal drug laws prevent states from enacting their own drug laws (such as medical marijuana laws) through preemption.

So, Ann, could you please explain how a law professor who specializes in federalism and constitutional law could make such an incredibly inaccurate statement about something so basic in your area of expertise?

Its hard for me to take anything you say seriously when it seems that you can't even be bothered to read the Supreme Court cases that you write law review article about. If you'd even skimmed OCBC, or if you had even the simplist understanding of the federalism/medical marijuana debate, you would not have made that sort of error.

So, is there something I'm missing that justifies what you say in the Penn article or are you just a hack?

From the perspective of a foreigner (Australian) t...

2005-11-24T21:43:00.000-06:00

From the perspective of a foreigner (Australian) the odd thing about the whole discussion is that everybody accepts that the basic disaster that is the US electoral system is a fact of life, or a law of nature, or an act of god. In the UK and Aus and NZ and Canada we don't have these issues arising because we have the pig simple bloody obvious institution of a national electoral office that runs local, state and federal elections without letting every county do its own thing on the basis of what party happens to run it. Over here, even when we have governments elected with a minority of the popular vote, nobody grumbles, because we trust the agency that's in charge of crumbling the cookie. You Americans are crazy.
Actually, we did have an electoral case once; there was a tie, the returning officer drew a name out of a hat, and in the end the High Court said he should have made a decision based on his own judgement rather than chance. But that's about it.

I am sure that Scalia would agree with the "bracke...

2005-11-24T14:10:00.000-06:00

I am sure that Scalia would agree with the "bracketed language" because his intent was likely to decide the election.

So, if the Florida re-count did not rise to the importance of decidingthe national outcome, then it would have been okay to deny the voters' equal protection?

As the above comment states, the Fla SC should decide Fla law, and the electors for president are chosen by the respective states. The SCOTUS does NOT have a dog in that fight.

99% of the comments here are complete non sequitur...

2005-11-24T11:17:00.000-06:00

99% of the comments here are complete non sequiturs. The initial post was regarding Justice Scalia's comment that it was Al Gore who "dragged" the case into federal court. This is demonstrably untrue, and you all know it. Even if one concludes that the Bush team was legally correct to argue that the recount in Florida must be stopped (a perfectly reasonable argument), it was still incorrect for Scalia to suggest that it was Gore who dragged the case into federal court. So why would Scalia say that? Because he is a partisan hack who would say anything to justify his partisan choices and partisan "rulings".

As to Ann's comments that the USSC was justified in stepping in to this state-law matter because of the federal consequences of the FSC's decision, I must dissent. Presidential election results choose STATE (or, sometimes, district) ELECTORS. Florida and only Florida has a legal interest in who is properly elected to be Florida's electors. Just because it might have eventually effected who was chosen by those electors to be President is completely irrelevant. The fact is that the supposed "States Rights" Justices violated their own alleged judicial philosophy in order to achieve a partisan result. That's just the way it is, despite Ann's eventual joy at our current presidential administration post 9-11.

Pirate Dreams: No one has ever written even a smal...

2005-11-24T10:21:00.000-06:00

Pirate Dreams: No one has ever written even a small part of an article for me. I have written every word of my own manuscripts (except what is in quotes). I have had the usual student editors at the journals, but they only contribute minor style changes. So your characterization is flat wrong.

What I don't understand is why you "Althouse" have...

2005-11-24T09:34:00.000-06:00

What I don't understand is why you "Althouse" have such a high opinion of your law review articles. Havign been editor of a Tier 1 Law Review, most are ghost written by students anyway, are not so much correct but rather state they are correct and of course, carry minimal persuasive authority. Get over yourself. Everyone can easily see the result was the issue and the method was developed to get the result. Whether you agree or disagree, the result is what drives the majority of th opinions (look at last years SCOTUS rulings). Get over yourself.

It's funny how the newfound respect for states rig...

2005-11-24T09:12:00.000-06:00

It's funny how the newfound respect for states rights is coming 180 degrees in the political spectrum than previously.

I will graciosly assume that those espousing the notion that the Florida Supreme Court was "interpreting" Florida law are merely uninformed.

The Florida Supreme Court had ignored and swept aside Florida Law and were ineptly making new law as they went along.

Harry S: I've written a long article on this topic...

2005-11-24T08:36:00.000-06:00

Harry S: I've written a long article on this topic and very strongly disagree with you. At some point, you cannot allow the state court to affect federal interests by using what is really just a device of calling something state law in order to insulate itself from review. At some point, it's a sham. You should look back on some of the cases from the Civil Rights Era to see why that proposition must be true. The real disagreement in Bush v. Gore, as I describe in the article was over whether the Florida court had crossed the line into a sham assertion of state law as opposed to just a weird or bad interpretation of state law.

Scalia's comments reveal the ugly truth about the ...

2005-11-24T08:23:00.000-06:00

Scalia's comments reveal the ugly truth about the Supreme Court's involvement, since by any rational measure, the case involved a question of state law -- the state's interpretation of its own election procedures -- not a question of federal law. The U.S. Supreme Court has been quite explicit about this point: The state supreme court's are the ultimate arbiters of state law. That is what federalism is all about. The Federalist Society and its adherents, including Scalia, are quite incensed by federal interference, particularly that of the federal courts, to restrain state officials, unless, apparently, it might mean that they lose an election. In the end though, politics trumps the rule of law. How could we sit idly by, Scalia asks, and let the Florida Supreme Court rather than us decide the election. That's an easy one: It's called deference to the powers of the States, and you call for it all the time.

Justin: That was the conclusion to a long, detaile...

2005-11-24T07:33:00.000-06:00

Justin: That was the conclusion to a long, detailed article. Althouse, The Authoritative Lawsaying Power of the State Supreme Court and the United States Supreme Court: Conflicts of Judicial Orthodoxy in the Bush-Gore Litigation, 61 Md. L. Rev. 508 (2002). Go read it. Then come back and say something that makes sense!

Prof Althouse,If you would have taken Fed Courts w...

2005-11-24T01:18:00.000-06:00

Prof Althouse,

If you would have taken Fed Courts with Professor Monoghan at Columbia, you would have failed. Easily. If "essence" Althouse means substituting ephermal concepts of idealism which cannot be argued for or against to replace the rigors of federalism and division of powers upon which the limited powers of Article III are developed (I notice you fail to cite to Article III once in the excerpt), then you aren't a lawyer at all, and your law review article belongs in the National Review, not a law journal.

Then again, someone who all of a sudden "changed their mind" about the whole political spectrum after 9/11, and yet remains stubbornly supportive of the administration after the Iraq debacle, deserves the company of their new friends. Federalis donicum facilis, and all that jazz.