Governor Arnold Schwarzenegger, Immigration, and Medical Marijuana

June 01, 2006

Kenneth Michael White ,

At a 2 p.m. press conference on June 1, 2006, Governor Arnold Schwarzenegger decided to end a 17-day standoff with the Bush Administration over immigration policy and the California National Guard.

Schwarzenegger agreed to send California’s troops to help participate in the Federal Government’s plan to secure the Mexican border with 6,000 National Guard personnel, even though the governor first appeared opposed to the idea.

Schwarzenegger has now indicated that he will send the troops to the border, but he also suggested that he could later change his mind on the matter. He was quoted as saying, “I'm the commander-in-chief…so I can take back the National Guard at any time that I want."

That is some bold talk from Schwarzenegger and it implies that if he does not like how the Bush Administration uses California’s troops, then the governor will call them back from the border.

The principle behind Schwarzenegger’s position is federalism. These are California’s troops; provided for with California’s resources and controlled by the State of California. Therefore, Schwarzenegger, as commander-in-chief of the California National Guard, can deploy the troops or not deploy them as he sees fit.

Of course, the governor must “see fit” to abide by the laws of the State of California, which begs the question: could Californians, through the ballot process, prevent their guard troops from enforcing Federal immigration law?

It is not a far-fetched question, to the extent that when it comes to medical marijuana that is basically what the voters of California have asked to be done.

In 1996, the voters of California passed the Compassionate Use Act, which decriminalized medical marijuana under State law (even though the Federal Government views all marijuana as illegal).

In 2002, a unanimous California Supreme Court upheld the constitutionality of the Compassionate Use Act and called it a “wholly” State law affair. Despite this ruling there are still some local officers in California who participate in Federal-led medical marijuana raids.

In 2005, the United States Supreme Court held that Federal officials may enforce medical marijuana prohibition against those people who distribute and manufacture medical marijuana to individual patients, but the issue here is not about the behavior of Federal officials, it is about the behavior of California officials. After all, these Federal-led raids use California’s resources to in effect criminalize conduct the State of California does not consider illegal.

Where is Schwarzenegger on this problem? Why hasn’t he prevented California’s resources from being used by the Federal Government to criminalize medical marijuana? Why hasn’t he asked the Bush Administration to recognize federalism when it comes to medical marijuana?

If Schwarzenegger is willing to let the Federal Government misuse California’s resources when it comes to medical marijuana, then he is probably willing to let the Federal Government misuse California’s National Guard when it comes to immigration policy.

Kenneth Michael White is an attorney and the author of The Beginning of Today: The Marihuana Tax Act of 1937 and Buck (both by PublishAmerica 2004).

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