A question for the armchair constitutionalists.

[rick-day.livejournal.com]

A ruling by a 3 judge panel in CO has tremendous potential impact on the politics of prohibition as well as the upheaval of the entire justice system.

The case centered on Brandon Coats, a quadriplegic medical-marijuana patient who was fired in 2010 from his job as a telephone operator for Dish Network after testing positive for the drug. Lawyers for Coats argued he was protected under a Colorado law that states it is illegal for workers to be terminated for participating in lawful activities off the clock.
But a trial court dismissed the claim in 2011, siding with Dish Network that medical marijuana use isn't a "lawful activity" covered by the termination law.
Now, even though the law has changed, the outcome for Coats has not. In its ruling, the Colorado Court of Appeals sought to define the word "lawful," ultimately concluding that for something to be lawful it "must be permitted by, and not contrary to, both state and federal law."

Oh no they didn't...

Of course, I am not a lawyer, but my opinion is if this ruling were upheld, a state's rights to enact their own Code (of laws) would be nullified if they did not mirror the Federal Code. Because if something is not directly codified as 'illegal' then it is assumed to be legal (please don't make me look up the code for that statute, it does exist).

This means all State laws contrary to Federal law are not "Lawful" laws. So all this abortion stuff from the states; now nullified if this ruling is upheld by SCOTUS? It does not even mention local and county/parish laws.

Working the logic backwards, since the word "both" was used, does this piss not run upstream; that for any federal law contrary to any state law, removes the federal statute's "lawfulness"?

Comments

[fizzyland.livejournal.com]

In California, you can't work for State or City government jobs without being fired for marijuana use, despite it being legal with doctor verification. It's unjustified but much like the twisted interpretation of the Interstate Commerce Act used by the federal DEA to harass legal marijuana in states like CA or Colorado, it seems that judges always side with such moves.

[telemann.livejournal.com]

Employer rights seem to trump worker rights quite a bit.

[rick-day.livejournal.com]

The let the pot smoker carry his own liability insurance.

[allhatnocattle.livejournal.com]

pick a good jury instead

[rowsdowerisms.livejournal.com]

Dude, your a Civil War late on this one.

[sandwichwarrior.livejournal.com]

You forget yourself. The US civil war was never about states rights, it was about slavery and showing those ignorant rednecks what for.

;)

[rick-day.livejournal.com]

No doubt. The political sanitized reason was some vague term Calhoun made up called "states rights". Most poor whites refused to fight the rich man's war, even when paid to take the place of the 'Beauregard's sons' who were conscripted.

sidebar: the common white dirt farmer did not join into the fray until the Merchant controlled press started warning about "The Free Negro, taking your jobs from you, allowing your families to starve". You know..economic propaganda.

Things still works this way in The South™ with immigration, btw.

[rowsdowerisms.livejournal.com]

Ahh it was about that too!

[underlankers.livejournal.com]

Well, if the ignorant rednecks brought a brought a butterknife to a gunfight, that's not the government's fault.

[yes-justice.livejournal.com]

The case centered on Brandon Coats, a quadriplegic medical-marijuana patient who was fired in 2010 from his job as a telephone operator for Dish Network after testing positive for the drug.

Seriously? This guy is trying to earn a living. He is in more daily pain than many will ever know. And they fire him for weed from a freaking phone support gig?

Fuck Dish for one thing.

Constitution lovers: Medical marijuana patients cannot own a firearm:
http://blog.sfgate.com/djsaunders/2013/03/26/if-you-own-medical-marijuana-ditch-the-gun/

[rick-day.livejournal.com]

Yeah! I Agree 100%! Fuck em etc...

But what about the ruling?

[yes-justice.livejournal.com]

Not being an armchair constitutionalist, I didn't answer.

I generally oppose fundamentalisms that prevent people from doing the right thing because of some adherence to a centuries old document.

[badlydrawnjeff.livejournal.com]

This means all State laws contrary to Federal law are not "Lawful" laws. So all this abortion stuff from the states; now nullified if this ruling is upheld by SCOTUS?

Welcome to law by SCOTUS, not law as written.

[enders-shadow.livejournal.com]

laws must be constitutional.

SCOTUS has been deemed to be the body that can demarcate what is and what is not constitutional.
they can also rule in other ways (standing or whatnot) but they DO have the power to declare X or Y to be unconstitutional, and since all no laws may contradict the constitution, i do not understand your objection.

could you expand on it for me?

[enders-shadow.livejournal.com]

after finishing reading the majority decision (didnt read dissent) i can tell you, with assuredness, that it does not mean that.

the technical matter was about the term lawful activity, and if it meant only state law or did it include federal law. its not a hard verdict.

[underlankers.livejournal.com]

Where does SCOTUS have the power in the Constitution as written to define what is or isn't constitutional?

[dexeron.livejournal.com]

Gonzalez v. Raich unfortunately spelled the doom for the ability for states to legalize something that the Federal Government doesn't like. If they can make a case that it falls under Art 1, Sec 8, they'll assert authority.

[aviv-b.livejournal.com]

I think you are seeing the application of Preemption of State Law under the Supremacy Clause of the Constitution.


A doctrine based on the Supremacy Clause of the U.S. Constitution that holds that certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. As such, a state may not pass a law inconsistent with the federal law.

A doctrine of state law that holds that a state law displaces a local law or regulation that is in the same field and is in conflict or inconsistent with the state law.

Article VI, Section 2, of the U.S. Constitution provides that the "… Constitution, and the Laws of the United States … shall be the supreme Law of the Land." This Supremacy Clause has come to mean that the national government, in exercising any of the powers enumerated in the Constitution, must prevail over any conflicting or inconsistent state exercise of power. The federal preemption doctrine is a judicial response to the conflict between federal and state legislation. When it is clearly established that a federal law preempts a state law, the state law must be declared invalid.

A state law may be struck down even when it does not explicitly conflict with federal law, if a court finds that Congress has legitimately occupied the field with federal legislation. Questions in this area require careful Balancing of important state and federal interests. Problems arise when Congress fails to make its purpose explicit, which is often the case. The court must then draw inferences based on the presumed objectives of federal law and the supposed impact of related State Action.

More on specific rulings (health care, environmental regulations, etc.) here: http://legal-dictionary.thefreedictionary.com/Preemption+of+State+and+Local+Laws (http://legal-dictionary.thefreedictionary.com/Preemption+of+State+and+Local+Laws)

[sandwichwarrior.livejournal.com]

Basically this ^

But it does of course raise the question of just how much should the federal government rule on.

[enders-shadow.livejournal.com]

This is not to sound mean, but:

did you read the entire (majority) decision?

it seems perfectly clear to me after reading it that there is no issue here that risks the upheaval of the justice system, as your first paragraph suggests.

its a good ruling, technically**; it simply sucks that federal law is so shitty on drug policy.


(makes me think of futurama: 'you are technically correct bureaucrat Hermes, the best kind of correct!)

[brother-dour.livejournal.com]

Oh, Colorado. I am disappoint. Historically, as a general rule of thumb in the U.S., an activity is legal if it is not specifically illegal. I think it is prescriptive vs restrictive- one specifically says what is allowed, the other says what is specifically forbidden. The U.S. has generally followed the latter (if its not specifically forbidden it is allowed), but this seems to indicate support of the former (only what is specifically allowed is, well, allowed).

Then again, lawful and legal may not be the same thing, either...

[rick-day.livejournal.com]

I guess I am going to have to look up the Federal Code that states specifically that: "unless it is prohibited by Code of Law it is presumed to be legal."

I used it in a case against the city.

Talk down to others much?

[rick-day.livejournal.com]

But like I said, this post is pretty confused

Pretty condescending, as well. Do us a favor: don't have children - you will never have the patience to answer questions without much more than your condescending tone.

Now..to your assertions...um no, sorry. I DO understand all of this. The confusion lies on your part. Allow me to elaborate.

Re read the decision; between paragraphs 13 and 14 is a HUGE leap of logic. Although the court took great pains to clarify their positions, only Raiche seemed to have any bearing on the case but there was no marijuana laws broken.

The court seems to be taking an apples-to-oranges approach to this 'unlawful activity'. The plaintiff was 'guilty' of violating a policy; the 'unlawful activity' of having certain metabolites in his system. THERE IS NO FEDERAL LAW against possession of metabolites. It is not a federal crime.It is not even a Federal Crime to be high in the privacy of one's home. Sorry, I can not cite what is not there. It's just not unlawful.

Absence of Federal law allows the system to then turn to state law. But state law does not prohibit the possession of metabolites either. Where is the unlawful activity? Only "possession [sales growing etc] of cannabis" is a crime. This is a private employee to private employer issue.

(interpreting the word âœlawfulâ in the North Dakota Human Rights Act to mean âœauthorized by law and not contrary to, nor forbidden by lawâ (citing Blackâ™s Law Dictionary 797 (5th ed. 1979)))

That is their basis? Really?

If that is the basis for their decision in paragraph 14 it would be quite a leap of logic, I must say.

for an activity to be âœlawfulâ in Colorado, it must be permitted by, and not contrary to, both state and federal law. Conversely, an activity that violates federal law but complies with state law cannot be âœlawfulâ under the ordinary meaning of that term. Therefore, applying the plain and ordinary meaning, the term âœlawful activityâ in section 24-34-402.5,
means that the activity â“ here, plaintiffâ™s medical marijuana use â“ must comply with both state and federal law

The court, when using the word conversely, contradicted themselves between the two sentences.

con·verse·ly
/ˈkänvərslē/
Adverb
Introducing a statement or idea that reverses one that has just been made or referred to.

In other words the two statement's conflict, which the court recognizes. The first statement clearly uses the term 'both' when describing if something is lawful or not. This is, according to the wording of the decision, describing legal activity, not illegal activity. The court is confusing the two because technically no laws or statutes were violated here; no crime was committed.

The court clearly is confusing illegal activity codified by law with legal activity not specifically prohibited. They indicate that only activities deemed illegal are subject to the Supremacy Clause (something I am well aware of; this is why I posted my 'pretty confused post' because...guess what..I was CONFUSED about this specific wording. Wow. You are amazing.

The declaratory statement is clear: for an activity to
be âœlawfulâ in Colorado, it must be permitted by, and not contrary to, both state and federal law.

The law codifies only illegal activity, exceptions and specific remedies. It is all 'forbids' and not 'allows'.

That can be interpreted that unless an activity is specifically allowed, it is deemed 'not legal' unless it is allowed by both state and federal law.

This is why I highlighted that specific sentence in the decision. It seems to establish that only lawful activity must be codified and allowed under state and federal law. If it is not specifically allowed, it is specifically prohibited.

That undoes a whole heck of a lot of established rights the states have to determine illegal activity. Because now, all legal activity must be codified, or it is not considered lawful.

The abortion thing is just going over your head so let it go. I'm tired of typing LOL..