California should pick fights with Donald Trump it can win

The Trump administration’s plans on immigration, climate change, U.S. relations with Mexico and more have prompted strenuous criticism from high-profile California politicians and promises of vigorous opposition — including, when necessary, court fights.

Now this pattern is playing out again in response to remarks from White House press secretary Sean Spicer and U.S. Attorney General Jeff Sessions that indicate the Trump administration will reverse course from the Obama administration and object to eight states’ moves to decriminalize marijuana use by adults. On Nov. 8, California became one of the eight when voters passed Proposition 64. A recent Los Angeles Times story quoted state Attorney General Xavier Becerra and other officials vowing to enforce the state’s law.

But in taking on President Trump, the state needs to pick its fights carefully and not waste time and money on doomed posturing. When it comes to federal drug laws, judicial history offers little reason to think California’s defense of Proposition 64 could win. This history includes a past fight over marijuana between our state and the federal government.

California passed Proposition 215 in 1996, allowing for the medical use of marijuana. After George W. Bush replaced Bill Clinton in the White House in 2001, his administration abandoned the Clinton Justice Department’s view that medical marijuana should have an exemption from the Controlled Substances Act (CSA), a key provision of a sweeping drug law enacted in 1970. After federal agents raided Diane Monson’s home near Oroville in 2002 and seized and destroyed the physician-approved pot she was growing to use as medicine, Monson and Angel Raich — another Northern California woman who used marijuana with a doctor’s approval — sued U.S. Attorney General Alberto Gonzales. After the women lost at the trial court level and won on appeal, Raich v. Gonzales was taken up by the U.S. Supreme Court. In 2005, six justices — including four liberals — sided with the federal government.

“The question before us ... is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally,” Justice John Paul Stevens wrote in the majority opinion. “Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case.”

The three dissenting justices — all conservatives — did not argue that states should be allowed to exempt themselves from provisions of the 1970 drug law. Instead, they narrowly held that Congress should not be able to prescribe “non-commercial conduct” by using the Commerce Clause of the Constitution.

Since Proposition 64 very much involves “commercial conduct,” there is nothing in the dissents that offers hope for the proposition’s defenders in a court fight. But there is sage advice in Stevens’ majority opinion: Americans who want to change federal marijuana laws should use the “democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.”

The San Diego Union-Tribune Editorial Board endorsed Proposition 64 and believes it would be a mistake for the Trump administration to drop the Obama administration’s decision to let states try a different approach with marijuana. But we have no illusions that state law can supersede federal law — if the feds are in enforcement mode. Nor should Gov. Jerry Brown or Attorney General Becerra.

Twitter: @sdutIdeas

Facebook: UTOpinion