Editorial: What is San Diego smoking?

October 21, 2008

Editorial, Orange County Register

The California Supreme Court has declined to review a landmark law that requires counties to implement a medical marijuana patient identification program. The court's decision also makes it clear that the federal prohibition on marijuana does not preempt the medical marijuana law California voters approved in 1996.

The 1996 law carved out exceptions to California's anti-marijuana laws for patients with a valid recommendation from a licensed physician. In 2005 the Legislature passed Senate Bill 420, which, among other things, required counties to screen patients for a voluntary state ID card system for patients to help police identify bona fide patients.

San Diego County, along with Merced and San Bernardino counties, sued the state in 2006, arguing not only that it should not be required to screen patients applying for identifications cards, but that federal law preempts state law and that California's medical marijuana law should be declared invalid.

A San Diego Superior Court judge rejected that argument in December 2006, after which Merced County opted out of the litigation and moved to set up a patient ID card system. The Fourth District Court of Appeal also rejected it in July of this year. The decision by the state Supreme Court not to review it means counties must set up an ID card program and, perhaps most importantly, as Joe Elford, chief council of Americans for Safe Access, noted, makes it clear "that federal law does not preempt state law relating to medical marijuana."

San Diego County has vowed to take the issue all the way to the U.S. Supreme Court. It is likely to have a steep hill to climb. The high court has had several medical marijuana cases before it and has opted not to invoke federal supremacy to invalidate the medical marijuana laws of California and the 11 other states. In addition, there is no disagreement among federal circuits that would require resolution by the U.S. Supreme Court.

San Diego County would be better off not to spend taxpayers' money pursuing this inversion of the federalist principle that is so central to the U.S. Constitution. The Constitution gives only certain enumerated powers to the national government and reserves all other rights and powers to the states and the people.

It has been 12 years since the people voted to allow sick people to use marijuana, and all subsequent polls suggest there is no chance they would reverse their decision. For San Diego County to try to do so through judicial fiat by bolstering the power of the central government and reducing the flexibility allowed to the states by the U.S. Constitution is repugnant.



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