Tuesday, October 18, 2011

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


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, submitting
to 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[1] (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.

Sensible California

P.O. Box 282

Santa Rosa, California 95402


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