The office of the President of the United States released the below memo (Federal Order) in May of this year. In it there are clear instructions to the DEA and other federal agencies that they should not preempt state law, below the official memo, you will find an analysis of the memo by Omar Figueroa Esq.
Movement in Action as well as the Green Cross Collective were both operating legally under state law. In both cases, court records have shown that undercover officers went to the respective collectives with valid medical marijuana recommendations. Completed all the required procedures for joining the collectives including the membership agreements, patient verification interview, and were distributed in compliance with California State Law medical cannabis as recommended by their physician just as they have been since 2003 as a part of the Bonnie’s continued war against medical cannabis patients in San Diego dubbed “Operation Green Rx”
Testimony from confidential sources inside the District Attorney’s office state Bonnie Dumanis’ the San Diego District attorney and long opponent of medical marijuana and patient’s rights personally requested the participation of the DEA in the 9/9/9 raids. The cross jurisdictional narcotics task force (NTF) helped execute the raids officially on 14 collectives in San Diego. Unofficially a dozen more were targeted and harassed on 9/9/9. In fact in the case of Herbal Health Options in Spring Valley, the Feds (DEA) and NTF came in with no search warrant took everything and told them to shut down.
The Green Cross and Movement in Action are the only two that received federal charges. Come out on Thursday for the Rally at the Federal Courthouse and to Support James Stacy. As soon as we have court information for the Green Cross we will let everyone know.
It is critical for everyone to stand together and to stand up against the continued prosecution, harassment, and outright subversion of state law by a select few.
Take a stand and Get Involved. Come to the Rally this Thursday and to the ASA meeting coming up on October 13th at 7pm at 6070 Mt. Alifan Dr. Ste 202, San Diego CA 92101
Office of the Press Secretary
For Immediate Release May 20, 2009
May 20, 2009
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
From our Nation's founding, the American constitutional order has been a Federal system, ensuring a strong role for both the national Government and the States. The Federal Government's role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.
An understanding of the important role of State governments in our Federal system is reflected in longstanding practices by executive departments and agencies, which have shown respect for the traditional prerogatives of the States. In recent years, however, notwithstanding Executive Order 13132 of August 4, 1999 (Federalism), executive departments and agencies have sometimes announced that their regulations preempt State law, including State common law, without explicit preemption by the Congress or an otherwise sufficient basis under applicable legal principles.
The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more than 70 years ago, "[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."
To ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis:
1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.
2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132.
3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.
Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory authorities. Heads of departments and agencies should consult as necessary with the Attorney General and the Office of Management and Budget's Office of Information and Regulatory Affairs to determine how the requirements of this memorandum apply to particular situations.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.
ANALYSIS OF THE MEMO BY OMAR FIGUEROA, Esq.
#1 – What is the significance of this document/order.
It reiterates the principle of limited federal government articulated by Justice Brandeis of the United States Supreme Court over 70 years ago: "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." California's exercise of of its state's rights with respect to medical cannabis is certainly considered a novel social and economic experiment these days, although if we look back prior to 1937, when federal cannabis prohibition was enacted, the medical use of cannabis was prevalent throughout the United States. In effect, this presidential memorandum undoes a controversial Bush administration rule known as "preemption", which misused federal regulations to override state laws on issues including the environment, health, and public safety. For example, during the Bush years, federal preemption provisions stopped California from enforcing a law limiting greenhouse gas emissions. President Obama directed heads of executive departments and agencies to review regulations issued within the past 10 years (in other words the Bush years) for statements in regulations or regulatory preambles intended to preempt State law, so that those can be amended to conform to the principles set forth in President Obama's Preemption Memorandum. "Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect those circumstances and values." Word.
#2 Is this document an order?
The document is not technically an "Executive Order"; it is a presidential directive which commands, "Executive deparments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory duties." According to a U.S. Department of Justice memorandum issued to the Counsel for the President in 2000, "A presidential directive has the same substantive legal effect as an executive order. It is the substance of the presidential action that is determinative, not the form of the document conveying that action. Both an executive order and a presidential directive remain effective upon a change in administration, unless otherwise specified in the document, and both continue to be effective until subsequent presidential action is taken."
#3. Is the timing linked to the settling of the San Diego lawsuit over ID cards? (Obama doc released 2 days after)
Possibly, if one assumes President Obama sensed a change in how the Supreme Court would deal with issues of conflict between state and federal laws. Remember, the Supreme Court has recently declined to review pro-medical marijuana appellate opinions in both the Garden Grove (return of property) and San Diego (ID card) cases, so the outlook is encouraging.
#4. To whom does this order apply? DEA, CAMP, FBI, Border Patrol, National Parks, border checks, ect
This presidential directive applies technically to all executive departments and agencies, including the United States Department of Justice, the Drug Enforcement Administration, the Federal Bureau of Investigation, as well Immigrations and Customs Enforcement. CAMP (Campaign Against Marijuana Planting) is a program run by the California Department of Justice, Bureau of Narcotic Enforcement, and is not directly affected by this federal presidential directive. President Obama ordered that the memorandum be published in the Federal Register, where federal rules and regulations are promulgated, so this is a formal directive.
#5 Is this a document people can use in either State or Fed Court now for their defense?
Sure, but it may not get a case "thrown out" of court. At a minimum, it can be used to negotiate a more favorable disposition for a federal defendant whose case is still pending. The impact in state court will not be as great.
#6 Will it help Fed defendants like Charles Lynch and Eddy Lepp?
Both of these defendants have been sentenced already, so it will take more than a presidential directive announcing a philosophical change in how the executive branch of government approaches matters of federalism to liberate Charles Lynch and Eddy Lepp from federal prison. And don't forget Mollie Fry, Bryan Epis, and the thousands of other peaceful human beings languishing in cages at taxper expense. All Obama has to do is issue pardons, or at least commutations, to set free these valiant martyrs of cannabis prohibition!