法律英语：36 Interstate Commerce and Marijuana

by Michael W. Flynn
 
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.

Today I answer a rather colorful question that implicates³ complex constitutional questions of federal preemption and the reach of Congress’ power. Scott from California wrote:

Legal Lad: why the f$%^ can’t I smoke pot in California?

The very short answer is that the Supreme⁴ Court said so in Gonzales v. Raich.

Under federal law, it is illegal to possess, transport, or use marijuana. Under California state law, it is legal to do all those things provided that a doctor has issued a prescription⁵ to you and followed some other requirements.

Under broad constitutional principles, Congress and federal authority trumps⁶ state authority where the federal government has the power under the Constitution to regulate something. This power is granted under the “Supremacy Clause.” In a past episode on the airline passenger’s bill of rights, I explained why a federal court struck down a New York state law that gave passengers the right to water and food if they got stuck waiting on the tarmac for too long. Congress has the right under the Constitution to pass laws related to interstate travel and commerce, and so only Congress was allowed to create laws that give to airline passengers any rights. Congress created the FAA, which did not grant any such rights to passengers, and so the Second Circuit struck down New York’s law.

The issue is somewhat similar with drugs. The Constitution grants to Congress the power to regulate interstate commerce. With regard to marijuana, the question before the Supreme Court in Raich was whether the growing, transportation and sale of medical marijuana constituted “interstate commerce,” and thus could be regulated.

California presented evidence that the medical marijuana was grown in California, was only transported to medical marijuana dispensaries in California, and was only used in California.

The United States presented evidence that there was a black market of marijuana. Basically, the US argued that California could not reasonably ensure that the drug stayed exclusively within the state, and so Congress had the power to regulate.

The Court, in a 5-4 split, agreed with the US. The “liberal” bloc⁷ of the Court won – holding that the Constitution granted broad authority to the centralized US government to regulate. The “conservative” bloc, lead by now retired⁸ Justice Sandra Day O’Connor, dissented⁹, and argued that California, in its great wisdom or folly¹⁰, was welcome to try out its marijuana scheme, and that the feds should not interfere¹¹. She urged that the Interstate Commerce Clause was not so broad as to allow Congress to step in anytime that there was only the minor¹² possibility of interstate commerce.

So, the holding meant that federal authorities, enforcing federal laws, had the right to arrest anyone who broke federal law by possessing, using, selling, etc., any amount of marijuana. However, this did not mean that California authorities, enforcing state law, could do the same. California police must generally follow California law, which means that, if a person has the proper paperwork, he cannot be punished.

But, the quirky thing is that the federal government has not always exercised its authority to the extent that it could. The feds, at any point, could close down pot shops and confiscate¹³ all the green. But, they have thus far chosen not to do so for all shops. They seem to selectively target some areas, some shops, or some people. But, this does not mean that the feds could not swoop¹⁴ in and do so in many circumstances.

So Scott, you “can” smoke pot in California, but not really. This area of the law changes often, as challenges on the grounds of medical privacy under the federal constitution, as well as issues about who has jurisdiction and when are being decided¹⁵.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful¹⁶ Life. You can send questions and comments to。。。。。。or call them in to the voice mail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 implicates   

n.牵涉，涉及（某人）( implicate的名词复数 )；表明（或意指）…是起因

参考例句：

• This confession implicates numerous officials in the bribery scandal. 这一供认会使许多官员牵连到受贿的丑事中。 来自辞典例句
• Did you tell him that the recording implicates President Logan in Palmer's assassination? 你有没有告诉他录音显示洛根总统跟帕尔默被杀有关？ 来自电影对白

4 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

5 prescription   

n.处方，开药；指示，规定

参考例句：

• The physician made a prescription against sea- sickness for him.医生给他开了个治晕船的药方。
• The drug is available on prescription only.这种药只能凭处方购买。

6 trumps   

abbr.trumpets 喇叭；小号；喇叭形状的东西；喇叭筒v.（牌戏）出王牌赢（一牌或一墩）( trump的过去式 )；吹号公告，吹号庆祝；吹喇叭；捏造

参考例句：

• On the day of the match the team turned up trumps. 比赛那天该队出乎意料地获得胜利。 来自《简明英汉词典》
• Every time John is late getting home he trumps up some new excuse. 每次约翰晚回家都会编造个新借口。 来自《简明英汉词典》

7 bloc   

n.集团；联盟

参考例句：

• A solid bloc of union members support the decision.工会会员团结起来支持该决定。
• There have been growing tensions within the trading bloc.贸易同盟国的关系越来越紧张。

8 retired   

adj.隐退的，退休的，退役的

参考例句：

• The old man retired to the country for rest.这位老人下乡休息去了。
• Many retired people take up gardening as a hobby.许多退休的人都以从事园艺为嗜好。

9 dissented   

不同意，持异议( dissent的过去式和过去分词 )

参考例句：

• We dissented from the decision. 对那项决定我们表示了不同意见。
• He dissented and questioned the justice of the award. 他提出质问，说裁判不公允。

10 folly   

n.愚笨，愚蠢，蠢事，蠢行，傻话

参考例句：

• Learn wisdom by the folly of others.从别人的愚蠢行动中学到智慧。
• Events proved the folly of such calculations.事情的进展证明了这种估计是愚蠢的。

11 interfere   

v.(in)干涉，干预；(with)妨碍，打扰

参考例句：

• If we interfere, it may do more harm than good.如果我们干预的话，可能弊多利少。
• When others interfere in the affair,it always makes troubles. 别人一卷入这一事件，棘手的事情就来了。

12 minor   

adj.较小(少)的，较次要的；n.辅修学科；vi.辅修

参考例句：

• The young actor was given a minor part in the new play.年轻的男演员在这出新戏里被分派担任一个小角色。
• I gave him a minor share of my wealth.我把小部分财产给了他。

13 confiscate   

v.没收(私人财产)，把…充公

参考例句：

• The police have the right to confiscate any forbidden objects they find.如发现违禁货物，警方有权查扣。
• Did the teacher confiscate your toy?老师没收你的玩具了吗？

14 swoop   

n.俯冲，攫取；v.抓取，突然袭击

参考例句：

• The plane made a swoop over the city.那架飞机突然向这座城市猛降下来。
• We decided to swoop down upon the enemy there.我们决定突袭驻在那里的敌人。

15 decided   

adj.决定了的，坚决的；明显的，明确的

参考例句：

• This gave them a decided advantage over their opponents.这使他们比对手具有明显的优势。
• There is a decided difference between British and Chinese way of greeting.英国人和中国人打招呼的方式有很明显的区别。

16 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。