by CalWatchdog Staff | May 31, 2011 10:28 am
Steven Greenhut: Here’s the latest on the marijuana legalization initiative from one of its sponsors, Steve Kubby:
The Supremacy Clause, as we know, was part of the original Constitution as written in Philadelphia in 1787. However, the Tenth Amendment amended the entire Constitution 4 years later in the first Congress, and its role is to limit the powers of the federal government to those only enumerated by the Constitution. That amendment also limits the Necessary and Proper Clause, the Interstate Commerce Clause, the so-called General Welfare Clause and a mountain of case law that the courts have never interpreted properly because they too get it wrong.
What that means is that the Supremacy Clause is only in play in areas where the Constitution specifically delegates power to the federal government and states have similar laws, BUT CSA is not one of those areas (which is why the entire CSA is unconstitutional as outside the scope of the enumerated powers of the federal government, as it always has been). Because of that, there is no conflict with federal law—PROVIDED THE LAW IS INTERPRETED CORRECTLY, which is the real problem—most modern judges and lawyers have never read the convention notes nor the congressional record from the first Congress regarding all of this, and as such lack the knowledge base to get it right.
All that aside, the key to the entire problem lies in the completely incorrect rulings of Raich, and before that Wickard, both of which are colossal screw-up in the crazy idea that one’s local commerce affects interstate commerce as if they are the same, when they are truly not by any common-sense understanding of commerce. That key is going be re-examined in the context of ObamaCare and the ongoing lawsuits over being forced to buy medical insurance. If the courts finally get it right, and if the lawyers argue it correctly, they will not only rule that a forced purchase is unconstitutional, but overturn Raich and Wickard and get things back to where they’re supposed to be in terms of commerce and how the Founding Fathers intended. The reason I say that’s the key is because once it’s legalized, then it becomes a commerce question and it falls under that purview.
All of that is out of our hands, however, so all we can do is proceed forward with the intent that down the road once that conflict and incorrect reading is fixed, either through the courts or by reclassification.
The Regulate Marijuana Like Wine Act Translated from Legalese into Plain English
The People of the State of California do enact as follows:
The Regulate Marijuana Like Wine
Act of 2012
SECTION 1. Findings, Declarations, Purpose, Directives, and Orders
New Section 11362.95 is added to the Health and Safety Code: (The Regulate Marijuana Like Wine Act will be called “11362.95” by lawyers and Judges so they can more easily find it in their books.)
11362.95. This section shall be known as and may be cited as the “Regulate Marijuana Like Wine Act of 2012,” known hereinafter as the “Act.” (Ditto.)
(a) The People of the State of California hereby find and declare: (Everyone here now knows that:)
(1) Outlawing marijuana has not reduced its availability and has actually resulted in making it easier for minors to acquire. . (When parents think about their kids smoking pot they freak out and thus they currently prefer the perils of teen pot prohibition to the perils of responsible teen pot use.)
(2) Marijuana is an untapped revenue source for the State of California, and that the best way to tap into that source for the benefit of all Californians is to tax and regulate it. (California is broke.)
(3) The regulation of marijuana will benefit the People of the State of California by reducing criminal gang activity, promoting agriculture, creating jobs by creating a new hemp industry in the State of California, and reduce the fiscal and overpopulation burdens on the Department of Corrections and Rehabilitation. (This initiative means less gangsters & jailers and more farmers.)
(b) The purposes of this Act are as follows:
(1) To amend the California Health and Safety Code sections 11357, 11358, 11359, 11360, 11366, 11366.5, 11485, and Vehicle Code section 23222(b), such that persons 21 years of age or older shall no longer be prohibited from the use, possession, trade, gifting, sales, distribution, storage, transportation, production, or cultivation of marijuana. (All the laws having to do with pot in California will be changed. Adults within California are legally totally free and clear, pot-wise.)
(2) Marijuana, THC, and CBD explicitly and/or by inference, shall be removed from Health and Safety Code section 11054, except for those statutes pertaining to:
(A) Operating a motor vehicle; (You’re not allowed to drive impaired on pot.)
(B) Using marijuana or being impaired in the workplace or public nonsmoking areas. (You can’t blow smoke in people’s faces or show up to work wasted.)
(C) Providing, transferring, or selling marijuana to a person under 21 years of age; and (Teens & young adults will have to launch their own initiative if they wish to get high legally.)
(D) The use, possession, cultivation, processing, sales, distribution, transporting, or storing on premises of marijuana by persons under 21 years of age. (Teens & young adults will have to launch their own initiative if they wish to grow or sell pot legally.)
(3) The amendment of statutes that criminalize the use, possession, cultivation, processing, transportation, storage, distribution, gifting and/or selling of marijuana in any form, or method of ingestion by persons 21 years of age or older, to legalize all such for-profit or non-profit activity by those persons, groups, or by approved business entities, and does not subject these persons/entities to search, arrest, prosecution, seizure, asset forfeiture, and/or any criminal or civil penalty or sanction. (Adults within California are totally legally free and clear, pot-wise.)
(4) That these enumerated activities are not punishable herein. (Ditto.)
(5) That all pending court actions under said amended statutes that conflict with the provisions of this Act shall be dismissed with prejudice. (If you’re an adult facing a pot charge and this initiative is approved by voters before your case is decided, you’re off the hook.)
(c) The People of the State of California hereby declare that this Act expressly prohibits the following:
(1) The search, arrest, prosecution, seizure of marijuana, asset forfeiture, or imposition of any criminal or civil penalties or fines for persons 21 years of age or older or entities for acting within the provisions of this Act. Without limiting any other greater immunity or rights granted herein, these persons/entities are also granted the immunity specified in Health and Safety Code section 11367, subject to its provisions. (If you are an adult, California cops can no longer confiscate your pot, your money or any of your stuff over pot if this thing passes.)
(2) Any and all commercial advertising of the sales, distribution, and use of marijuana, except for medical marijuana and products that contain less than one percent THC. This provision shall be enforced hereafter by penalties to be set forth by the Legislature. (Med pot dispensaries and industrial hemp manufacturers can advertise, but recreational pot cafes can’t.)
(d) The People of the State of California hereby expressly declare that this Act does not repeal, modify, or change any present medical marijuana statutes as set forth in California Proposition 215 and its progeny. (Medical marijuana rights – such as extra-large gardens or use by under 21 year olds – is protected under this initiative.)
(e) The People of the State of California hereby declare:
(1) This Act adopts the definitions of marijuana and THC as they are presently set forth in Health and Safety Code Sections 11018 and 11006.5, but those definitions shall be broadly interpreted to include the species Cannabis Indica, Ruderalis, and Americana, as well as any plant part, derivative, interspecies hybrids or cross-breeds, and all non-genetically-modified strains of the Cannabis genus and plant. (Every kind of pot is legal except GMO pot. GMO pot may be unsafe and is designed to produce seeds that can’t produce more pot … to force people to buy seeds instead of breed and be self-sufficient.)
(2) Existing taxes and regulations for the establishment of the farming, industry, distribution, retail sales, and wholesale transactions of agricultural crops and products shall apply to marijuana, regardless of THC level, using the grape winery industry as a model, so long as the results support these declarations, purposes and goals. (Pot taxes will be minimal, like wine taxes are. For example, combined State and Federal taxes on a bottle of wine equals 25 cents. A bottle of wine gives two people a buzz, as does a gram of pot. Assuming a 25 cent tax on a gram of pot, an ounce would result in seven bucks in taxes, and a pound would result in 112 dollars in taxes. It’s probable that the over-all retail price of most pot would drop much lower than that as a result of reduced production and security costs for growers, more outdoor, and more competition.)
(3) All marijuana or hemp products with a THC level below one percent shall be authorized for normal retail sales. All marijuana or hemp products with a THC level of one percent or above shall be restricted for normal retail sales to persons 21 years of age or older and regulated in a manner similar to wine, so long as the results support these declarations, purposes and goals. (Hemp is regulated like wheat, and pot is regulated like wine.)
(4) The State of California, and all branches of its government, shall liberally construe the meaning and implementation of this Act to favor and benefit individuals, and qualifying business entities regarding the following:
(A) No taxes, fees, laws, rules, regulations, or local city or county zoning requirements may be adopted or enacted to defeat, deny, or prohibit the purposes of this Act, or to defeat, deny, or prohibit persons 21 years of age or older, associations, organizations commercial, agricultural, or industrial businesses from engaging in the activities protected by this Act, and all civil rights apply as set forth in Civil Code Sections 52.1 et seq., 54, Food and Agricultural Code Sections 54033 through 54035, inclusive. (Cities can’t pull a “Rancho Cordova” anymore – they can no longer set taxes so high that nobody can afford to grow.)
(B) As per the winery regulations of the alcohol industry model that allow for non-commercial home brewing, any person, association, or collective group not producing more than 25 flowering plants or 12 pounds of dried processed marijuana per adult, per year, shall be exempt from any winery regulations of the alcohol industry model, excises, fees, and taxes, except for income taxes and sales taxes, if they apply. (Small-time growers will not be taxed unless they want to sell some.)
(C) No regulations, taxes, or fees shall be enacted or imposed for marijuana for qualifying persons and entities, which are more severe or restrictive than those for comparable and reasonable usage in the commercial wine grape farming and winery regulations of the alcohol industry model, including for farming, planting, cultivating, irrigating, harvesting, processing, brokering, storing, selling, distributing, and establishing of cooperatives or collective associations. (Regulations, taxes and fees will be minimal just like the ones on wine.)
(5) Regardless of jurisdictional arguments, all state, local, elected, appointed, hired employees, officers, and officials shall refuse to and shall not cooperate with or assist federal, state, or local officials or employees who would eradicate marijuana, act for seizure or forfeiture, or defeat any liberally construed purpose of this Act, or to operate under any contract or arrangement to repeal or circumvent this Act directly or indirectly, or to follow or to abide by any federal laws or regulations that are in conflict with this Act. Further, no such person acting alone, or with any other person or legislative or executive body, may contract or agree to cooperate with or to assist federal officials, employees, agencies or departments to obtain any money, property, gain, or advantage by the arrest, prosecution, conviction, or deprivation or seizure of property of anyone acting within the age provisions of this Act. (California cops will no longer be allowed to help Federal cops with enforcing Federal pot laws.)
(6) Within 30 days of passage of this Act, the offices of both the state Attorney General and the Department of Public Health shall inform the United States Department of Health and Human Services, the United States Attorney General, Congress, Drug Enforcement Agency, and Food and Drug Administration that in 1996 the state of California recognized the current medical use of marijuana in treatment in the United States, and since 1996 is a state-regulated medical practice. Physicians have evaluated thousands of patients who have used marijuana with no adverse consequences, and for that reason demands or petitions as is appropriate (see 21 CFR 1308.43, 21 USC 811-812) that marijuana and tetrahydrocannabinols as defined in §21 USC 802(16) be removed from Schedule I of the Controlled Substances Act, 21 USC 800 et. seq., where it is currently listed as a drug with no accepted medical use. (California politicians will be forced to ask the Feds to reschedule cannabis so that people all over the USA will have easier access to it.)
(7) The State of California is ordered to protect and defend all provisions of this Act from any and all challenges or litigation, whether from individuals, officials, cities, counties, the state or federal governments. (California politicians must spend money to defend the new pot laws in court, should the need arise.)
(f) This Act shall become effective immediately upon passage.
SECTION 2. Severability
If any of the provisions of this Act, or any part thereof, is for any reason held to be invalid or unconstitutional, the remaining provisions shall not be affected, but shall remain in full force and effect, and to this end the provisions of this Act are severable. (If some of this stuff doesn’t fly the rest still can.)
SECTION 3. Conflicting Measures
If this Act is approved by the voters but superseded by law by any other conflicting ballot measure approved by the voters at the same election, and the conflicting measures are later held invalid, this Act shall be self-executing and given the full force of law. (Other new pot laws can’t screw up these pot laws if those other pot laws turn out to suck.)
Source URL: https://calwatchdog.com/2011/05/31/abcs-of-pot-legalization-plan/
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