Pubdate: Thu, 16 Aug 2012
Source: Oregonian, The (Portland, OR)
Copyright: 2012 The Oregonian
Contact:  http://www.oregonlive.com/oregonian/
Details: http://www.mapinc.org/media/324
Author: Brendan Monaghan

OREGON'S MARIJUANA LEGALIZATION MEASURE WOULD IGNITE A FUTILE LEGAL BATTLE

There are many reasons that a voter might approve a given ballot
initiative, but trying to start a fight with the federal government
shouldn't be one of them. Consider Measure 80, a legislative Hail Mary
even by the standards of our long and controversial history with the
initiative process.

The measure would legalize the recreational production, possession and
use of marijuana in Oregon. One might question whether the proponents
of the Oregon Cannabis Tax Act had considered D.C.'s inevitable
reaction, regardless of who wins in November. Then the obvious answer
presents itself: That's exactly what proponents are counting on.

This, if successful, would not be the first Oregon ballot measure to
come under federal scrutiny.

The most infamous example of such was Ballot Measure 6 in 1922.
Oregonians approved an initiative mandating that all children receive
a public education, thus banning parochial schools in pretty clear
defiance of the 14th Amendment. The U.S. Supreme Court disagreed with
the measure and unanimously handed down a landmark ruling in Pierce v.
Society of Sisters. More recently, Oregon's Death With Dignity Act
survived a grueling trip through George W. Bush's wringer in Gonzales
v. Oregon.

These are but two noteworthy examples.

With budget shortfalls and cuts to vital programs continuing to stymie
the Legislature, is the best-case scenario of a jurisprudential coin
flip really worth the legal costs?

The Drug Enforcement Administration would continue to prosecute
federal drug laws, whether Oregon's Constitution is amended or not. We
saw this after Oregonians approved medical marijuana and in the Golden
State once Californians did the same. Measure 80's passage is
evidently part of a gradual strategy of marijuana activists, similar
to that of Quebec sovereigntists who dream of turning their province
into a country in three easy steps.

And it's just as realistic.

When and if marijuana is legalized in November, some Oregonians would
party like it's 1933 and Prohibition was over. Activists are banking
on DEA agents being present and acting on a different legal point of
view. Step Two. Upon the test subject's arrest, prosecution,
conviction and appeal on federal drug crimes, the proponents of
Measure 80 then proceed to Step Three -- all the way to the Supreme
Court. The idea is for a majority of justices to find the Controlled
Substances Act of 1970 unconstitutional, assuming a majority in
Congress doesn't repeal it first.

This is a pretty big gamble, as the court decided 6-3 to uphold that
very law in Gonzales v. Raich in 2005. That case was argued based on
the medical necessity of marijuana use -- not the recreational desire
- -- and failed to sway a majority, including four members of today's
court. Furthermore, all parties in Raich conceded and stipulated that
Congress had the power, under the Commerce Clause, to ban marijuana
for non-medical reasons.

The idea that a majority could now be persuaded to reverse the
7-year-old decision on a far-weaker premise is foolish.

Even with four new justices, there is slim evidence of a pro-pot
majority or reason to believe that constitutional circumstances have
changed.

With the supremacy of federal law over state law more or less a
settled matter since 1865, the quest to light up legally seems a
futile endeavor.

There can be no change as long as federal drug laws are in place and
enforced.

Debating whether the Controlled Substances Act is necessary or proper
today (or, for that matter, marijuana's inclusion as a Schedule I
drug) is legitimate but not realistically applicable outside a barroom
or dinner-table discussion. Congress would never reverse this duly
passed, constitutionally approved law in a reasonable time frame, and
neither presidential contender would sign it.

Without a Pot Bloc coming to their congressional salvation, Oregon
voters should take the exorbitant and escalating cost of a lengthy
legal battle with the feds into account and reject Measure 80 outright.
- ---
MAP posted-by: Matt