We confront here the facially anomalous request that we approve state confiscation of a substance which is legal in the circumstances under which it was possessed. This request is terra incognita, as will be most of the many confusing aspects of the current tension between California marijuana laws and those of the federal government. Our conclusions are therefore more a matter of analytical accouchement than precedential accretion. But we are convinced by the Attorney General’s argument that governmental subdivisions of the state are bound by the state’s laws in this instance and must return materials the state considers legally possessed. We are persuaded due process will allow nothing less. Accordingly, we deny the City’s petition.
Interesting California case flagged by my weekly Findlaw listing of cases received by its useful mailing lists. The "analytical accouchement than precedential accretion" bit called to mind the much riduculed "peneumbra" and "emanations" bit from Griswold, even if its basic principle (a true security of constitutional rights includes security of things not expressly listed, just like an outlying fence protects a home) is sound. It is almost hard to believe that wasn't used for some verbal effect.
But, aside from that, the case itself puts forth an important principle of federalism. It underlines that concept is not just some conservative excuse for backward thinking, though it is quite true that the consistent federalist tends to be hard to find. (Some want to use it for liberal ends -- consider Justice Brennan citing the idea of state constitutions of broader reach than the more conservative views of the post-Warren Supreme Court -- but often not when conservative results are likely.) As noted here:
By complying with the trial court’s order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens.
The case involved a motorist in California involved a traffic violation after which a small amount of marijuana was found in his possession. This was seized, but it later it was found that he was authorized by state law to have it for medicinal reasons. The police did not want to give it back to him because federal law does not allow such an exception. But, especially because its claim of concern of liability was unlikely in practice (immunity tends to apply), this was not controlling.*
States do not have a general obligation to enforce federal law that does not particularly "preempt" state allowance of the conduct in question. If I assault someone in a post office, the state in which this crime takes place might very well in various ways assist the feds in catching and prosecuting me. For instance, perhaps if I am seen at a certain location, and state authorities in some matter learns about it. However, the state is under no obligation to help, or seize evidence to bring me to justice. Past cases also prohibits the feds from forcing them to do so (e.g., Printz v. U.S.," commandeering"). As the court here noted: "The California courts long ago recognized that state courts do not enforce the federal criminal statutes."
States are not just subdivisions of the federal government akin to counties in states, which themselves often are given broad discretion. The principle is particularly important when dealing with disputed points. This was seen in the slavery context. Prigg v. Pennsylvania held states could not be forced to assist in the return of fugitive slaves, leading to the Compromise of 1850 in part putting in place a federal regime, involving federal commissioners. Ditto in more recent times, including the regulation of medicine (thus the federal "partial birth" abortion was targeted in the recent Cato Supreme Court Review collection on federalist grounds).
It is quite true that Gonzales v. Raich (dubiously) upheld the right of the federal government to arrest the person in question. The opinion here cited Justice Thomas' dissent to augment how the actions here had "no impact" on such enforcement. True or not, the majority thought differently. It might be not "likely," but federal prosecution for small possession is possible. The case was after all about the right to own small amounts of marijuana for medicinal use. This was deemed to affect interstate commerce enough to come within congressional power. So, if the California court is right here, the reason has to be at least somewhat broader.
Simply put, if the feds want to enforce their dubious policy, they have to do so without expecting police officials in more friendly states to help them. States might very well on their own decide not to allow medicinal marijuana in part because they figure federal policy would make it hazardous. [In practice, without local assistance, law enforced from afar is much weaker. But, in various cases, it has bite. Angela Raich found that out as did other unfortunates.] Or, the feds might use the power of the purse or some other means to encourage such involvement.
All the same, states can still not enable various federal policies they oppose. To cite Justice Brandeis, they can be laboratories. Such discretion might in various ways not be free of restraint. The federal government has broad powers that touch upon many local matters. But quite often locals have real discretion, especially as applied to everyday effect. And, as a result, can call attention to and limit the harm (in some cases, the benefits) of controversial policies.
"By complying with the trial court’s order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens."
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* The fact that the police was probably not going to be liable made the very standing of local authorities (the state and local authorities were on separate sides here; cf: Romer v. Evans, involving a more conservative state policy as to homosexuals after local areas put into place a more liberal policy). Nonetheless, though some dispute over the proper resolution over the issue was cited, the court took a pragmatic stance here. The matter was important and "here it appears quite likely the City will not be able to obtain judicial review of the trial court’s order unless it is afforded standing in this proceeding."
Cf. Use of standing to keep federal surveillance methods from court scrutiny. See also, this link to a discussion of FISA and its recent progeny from an insider. I particularly think this is a fundamental point:
Like many competing American values, liberty and security converge in law. We strike the balance between them not only in the many particular statutes, orders, and policies of the government, but also in the ongoing process of Legislative, Executive, and Judicial action – and reaction – within the framework prescribed by the Constitution. Our national security is therefore cast, and continually recast, in the crucible of our legal system.
[see also, my comment there]