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cannabis and the commerce clause

Discussion in 'Other Criminal Law Issues' started by Green River Hemp Farm, Dec 2, 2019.

  1. Green River Hemp Farm

    Green River Hemp Farm Law Topic Starter New Member

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    Jurisdiction:
    Illinois
    possession of cannabis on private property is beyond the commerce clause. United states v Morrison effectively overturns Raiven v Gonzales. also Lopez to lesser extent.........any thoughts?
     
  2. justblue

    justblue Well-Known Member

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    This isn't a debate site.

    If you, personally, are having a legal issue please explain what it is and the volunteers will try to assist you.
     
  3. army judge

    army judge Super Moderator

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    Under federal law, cannabis is treated like every other controlled substance, such as cocaine and heroin. The federal government places every controlled substance in a schedule, in principle according to its relative potential for abuse and medicinal value. Under the CSA, cannabis is classified as a Schedule I drug, which means that the federal government views cannabis as highly addictive and having no medical value. Doctors may not "prescribe" cannabis for medical use under federal law, though they can "recommend" its use under the First Amendment.

    Federal cannabis laws are very serious, and punishment for people found guilty is frequently very steep. Federal law still considers cannabis a dangerous illegal drug with no acceptable medicinal value. In several federal cases, judges have ruled that medical issues cannot be used as a defense, though defense attorneys should attempt to raise the issue whenever possible during trial. Federal law applies throughout Washington D.C. and the United States, not just on federal property.

    Federal law is the supreme law of the land, despite what some state officials believe.

    Cannabis is illegal.

    Obey THEIR laws, or risk their WRATH along with your freedom.
     
  4. Green River Hemp Farm

    Green River Hemp Farm Law Topic Starter New Member

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    I have 5 pending felonies resulting from a cannabis arrest. I am convinced the cannabis control act as well as the drug forfeiture act are unconstitutional. I am working on a comprehensive brief That challenges the constitutions on over 20 issues as well as a challenge to RFRA. I am considering a civil rights suit as well
     
  5. Green River Hemp Farm

    Green River Hemp Farm Law Topic Starter New Member

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    Not all forms of cannabis are illegal. Hemp is legal. Medical is legal here. Recreational about to be legal. The commerce clause is for commerce not possession An unconstitutional law is no law at all. I am claiming the commerce clause does not extend to possession on private property
     
  6. Green River Hemp Farm

    Green River Hemp Farm Law Topic Starter New Member

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    Also no medicinal use statement is ridiculous. How is allowing the executive branch to classify drugs consistent with congress regulating commerce? I think this is also unconstitutional
     
  7. Green River Hemp Farm

    Green River Hemp Farm Law Topic Starter New Member

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    Also no medicinal use statement is ridiculous. How is allowing the executive branch to classify drugs consistent with congress regulating commerce? I think this is also unconstitutional
     
  8. KatDini

    KatDini Well-Known Member

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    Federal law trumps state and local laws.

    Are you one of those sovereign citizens? o_O
     
  9. Tax Counsel

    Tax Counsel Well-Known Member

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    My thoughts are that the Morrison case deals with a very different subject than marijuana possession — a sexual assault — and thus is not directly applicable. The Supreme Court has held that simply growing food on your own property for your own consumption nevertheless implicates the commerce clause. So if having food you grew yourself implicates interstate commerce there is little doubt in my mind that possession of marijuana affects interstate commerce as well, even if you grew it yourself on your own property. The breadth of those things that are considered to impact interstate commerce is quite broad indeed. I think you'll find that your quest to get the federal courts to declare the federal laws that criminalize possession of marijuana unconstitutional will end in disappointment.
     
  10. mightymoose

    mightymoose Moderator

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    I'm not about to lookup and read obscure cases to infer what your question may be. Maybe you can sum it up?
    If one case does in fact modify a previous opinion it would likely be quite obvious in the most recent opinion.
     
  11. mightymoose

    mightymoose Moderator

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    The amount you were in possession of may contradict any argument that there was no commercial element.
     
  12. zddoodah

    zddoodah Well-Known Member

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    United States v. Morrison (529 U.S. 598) was a U.S. Supreme Court case decided in 2000. It held that parts of the Violence Against Women Act of 1994 exceeded Congress's power under the Commerce Clause. By way of a search on Google Scholar, I could find no record of any published case decided by any court called "Raiven v. Gonzales" (and that includes alternate spellings of "Gonzales"), so I have no idea what you're talking about here. I do, however, agree that an argument could be made, based on Morrison, that a federal law criminalizing "possession of cannabis on private property is beyond [Congress's power under] the [C]ommerce [C]lause." That said, I don't think such a law exists.

    Huh? Morrison was consistent with United States v. Lopez, 514 U.S. 549 (1995) (holding that the federal Gun-Free School Zones Act of 1990 exceeded Congress's power under the Commerce Clause). Lopez most definitely was not "effectively overturned" by Morrison.

    First, when you say that you "have 5 pending felonies," what are those felonies, and are they at the state or federal level?

    Second, are you represented by an attorney?

    Third, what sort of brief are you working on?

    Fourth, what do you mean when you say that your brief "challenges the constitutions"? Did you really mean to pluralize "constitutions" (i.e., are you talking about multiple constitutions)? Did you actually mean to say that you're seeking to challenge the two laws you mentioned based on one or more provisions in the United States or Illinois Constitutions?

    Fifth, when you said your brief will contain "a challenge to RFRA," did you actually mean a challenge based on RFRA?

    Please note that my last couple of questions should hint to you that, if your post is an indication of your writing abilities, you have no business writing a legal brief because legal briefs require clarity in order to be persuasive.

    LOL! Morrison and Lopez are hardly "obscure cases."
     
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  13. mightymoose

    mightymoose Moderator

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    I was referring to the one you couldn't find. Kudos to you for trying though.
     
  14. PayrollHRGuy

    PayrollHRGuy Active Member

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    It does not in many cases.
     
  15. KatDini

    KatDini Well-Known Member

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    It does, if the Feds get involved.
     
    army judge likes this.
  16. Tax Counsel

    Tax Counsel Well-Known Member

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    There are many instances in which federal and state laws do not conflict. If there is no conflict then there is nothing for the federal law to "trump". So in that sense at least I agree with you. But where there is an actual conflict between the two the federal law will indeed take precedence over the state law unless the federal law is unconstitutional or otherwise invalid.
     
  17. zddoodah

    zddoodah Well-Known Member

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    "PayrollHRGuy's" statement is quite accurate (i.e., there are, in fact, many cases where federal law does not "trump" state and local laws), and the statement that "Federal law trumps state and local laws" is to broad to be correct. Depending on the circumstances, federal law might preempt (i.e., trump) state or local law, but whether "the Feds get involved" or not is not a relevant concern.

    Federal preemption law is an incredibly complicated subject. In some cases, any state or local law on a subject is preempted. Copyright is a good example of this. In other cases, there is no preemption at all. Most family law falls into this category. In other situations, both the feds and the states can and do legislate on a subject. Criminal drug laws are a great example of this. Congress may criminalize something if it has power to do so under the Constitution, and the several states may choose to criminalize or not criminalize the same thing. That a state chooses not to criminalize something doesn't have anything to do with Congress's ability to do so, and that's not a preemption issue at all. This, I think, is the point you were trying to make in your first response in this thread.
     
  18. army judge

    army judge Super Moderator

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    Agreed, and if a state law isn't contrary to federal law, there would be no problem.
    However, certain state laws allowing the evil cousin of slavery to exist, long after the Civil War ended, were corrected and declared unconstitutional throughout the turbulent 1960s. State officials denied Black children the right to an equal public education, the right to vote, the right to engage in commerce by partaking of a meal at a public dining facility, the right to travel on public conveyances without being segregated, etc...

    Yet, we see states legalizing behavior outlawed by federal law: creating sanctuary cities for lawbreakers, ordering local law enforcement agencies not to cooperate with certain federal law enforcement agencies, "legalizing" dangerous drugs outlawed by the federal law, etc...

    Just as evil "Jim Crow" laws were overturned, if the federal ban on marijuana stays in place, the legalization of marijuana contrary to federal law will one day be addressed by The Nine Supremes.

    This isn't a difficult question. It is, however, a very, hot, political potato.

    9th Amendment, amendment to the Constitution of the United States: One of the ten items addressed by The Bill of Rights, Rights Reserved to States or People.

    The people retain rights absent specific enumeration under law. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    10th Amendment to the Constitution of the United States: One of the ten items addressed by The Bill of Rights, Rights Reserved to States or People.
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    As regards the legality of the outlawed drug, marijuana: According to US Federal law, cannabis is treated like every other controlled substance, such as cocaine and heroin. The federal government places every controlled substance in a schedule, according to its relative potential for abuse and medicinal value. Under the CSA, cannabis is classified as a Schedule I drug, which means that the federal government views cannabis as highly addictive and having no medical value. Doctors may not "prescribe" cannabis for medical use under federal law, though they can "recommend" its use under the First Amendment.

    Federal cannabis laws are very strict, and punishment for people found guilty is frequently very steep. Federal law still considers cannabis a dangerous illegal drug with no acceptable medicinal value. In several federal cases, judges have ruled that medical issues cannot be used as a defense, though defense attorneys should attempt to raise the issue whenever possible during trial. Federal law applies throughout Washington D.C. and the United States, not just on federal property.

    As of 2016, several federal agencies have issued guidelines and other policy memorandums to manage the conflict between federal and state laws as they pertain to medical marijuana. On August 29, 2013 the Department of Justice (DOJ) issued a guidance memo to prosecutors concerning marijuana enforcement under the Controlled Substance Act (CSA) making it clear that prosecuting state legal medical marijuana cases is not a priority. The memo included eight guidelines for prosecutors to use to determine current federal enforcement priorities. Fortunately, most medical cannabis program’s regulations require the same guidelines ensuring that any business with a licenses are meeting these requirements as well. These guidelines include:

    1. Preventing of distribution of marijuana to minors;

    2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs or cartels;

    3. Preventing the diversion of marijuana from states where it is legal under to state law in some form to other states;

    4. Preventing state-authorized marijuana activity from being used as a cover or a pretext to traffic other illegal drugs or other illegal activity;

    5. Preventing violence or the use of firearms in cultivation and distribution of marijuana;

    6. Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;

    7. Preventing the growing of marijuana on public lands and the attendant public safety and environment dangers posed by marijuana production on public lands;

    8. Preventing marijuana possession or use on federal property.
     
  19. army judge

    army judge Super Moderator

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    Think back to the 60s, my friend.

    There were similar issues, three of the most prominent involved civil rights, abortion rights, and the war in Nam.

    It took time.

    There were protests.

    There were even riots, and some assassinations of politician and civil rights advocates.

    In some cases, states even authorized terroristic behavior by local and state law enforcement officials against people exercising their constitutional rights.

    Hopefully we won't see that level of violence, but we'll see the chatter and hear the arguments until the feds take the appropriate enforcement activities to ensure no state is can take actions that allow their residents to ignore federal laws.
     
  20. Green River Hemp Farm

    Green River Hemp Farm Law Topic Starter New Member

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    No I am not claiming to be a sovereign citizen

    My charges are state of Illinois.

    I was represented by a local attorney but he was arrested for rape. His formal withdrawal was last week.
    I am in the process of looking for a new attorney. Zachary Townsend of Rockford Il is one that I would like to talk to. He wrote a brief concerning challenging the drug asset forfeiture laws. He does seem to specialize in criminal law but his writing is very much in the same vein as my thoughts

    I’m sorry the case I have been referring to as Raiven is actually Raich v Gonzales..........just a miner detail....lol

    And yes I meant to say challenge (based on )RFRA

    The commerce clause does not apply to possession on private property of homegrown cannabis. Raiven v Gonzales is effectively overturned by Morrison. The commerce clause only applies to economic activities.

    When I say constitutions I am referring to Illinois as well as federal. In Morrison and Lopez the commerce clause is defined differently then Raich v Gonzale

    . My issues are mostly with Illinois but I see many conflicts with both constitutions. I have no beef with congress regulating what is actually economic. However I firmly believe the majority got it wrong in Raich v Gonzales.

    In Illinois there are multiple other conflicts mostly revolving around due process and equal protection. The state has had a medical law on the books for since 1978 that was never implemented by the executive branch. They have a medical marijuana program, now permanent, and recreational use will be legal in less then a month. Violating federal law.

    The penalties under the cannabis control act and drug asset forfeiture act act are excessive.

    The state took virtually everything I own. 2 autos, an atv , an enclosed trailer, most of the tools I use for income and anything else of value or that makes life difficult for me.

    My legal point on Raich v Gonzales is narrow. Homegrown anything is not economic if for personal use.. the commerce clause should not reach that far. I am not trying to reverse whole prohibition law ( although that would be good too) ......just Raich v Gonzales

    Another point. By congress delegating scheduling to the executive branch, it seems to violate due process and even creates a conflict of interest between the two branches of government.

    Thanks everyone for the comments


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