Under Prop 64, city and county governments will be able to ban almost all cannabis activity except for personal cultivation of up to six plants in an enclosed structure and consumption, both by an adult at least 21 years old. Otherwise,  local governments in California are free to restrict cannabis businesses from operating within its jurisdiction, levy restrictions it determines to be appropriate on what cannabis businesses it does allow, and prohibit outdoor personal cannabis cultivation. For example, a county may allow dispensaries, but prohibit on-site consumption, so that customers may not ingest the cannabis at the dispensary. Should a city or county opt to ban all cannabis businesses it will, however, forego the tax revenue from Prop 64.

In anticipation of cannabis sales going live in January 2018, most counties and other local governments in California have established ordinances determining how much cannabis activity will be allowed within their jurisdictions. For example, Placer County allows indoor and outdoor cultivation of up to six plants, but with some specific requirements. All outdoor cultivation must have fencing to make it not visible to the public or neighbors, and must be set back at least 100 feet from all property lines. Further, Placer County prohibits all commercial sale, manufacturing, delivery, and dispensaries of cannabis, allowing only delivery of medicinal products by a “primary caregiver” to a “qualified patient.” Similarly, Sacramento County does not allow cannabis businesses, including dispensaries, in its unincorporated areas. As another example, the City of Folsom prohibits all outdoor cultivation of cannabis plants. If a city within a county adopts a cannabis ordinance that embodies more restrictive policies than the county requires, the city’s more restrictive laws control within its boundaries.

It probably comes as no great surprise then that conflicts can arise between different cities and counties, since they are given such great leeway within the state to customize their cannabis restrictions. One issue that arises is the legality of cannabis delivery services that necessitate travel through a city or county that bans cannabis delivery, to get to and from areas that do not prohibit such activity. Local governments are able to regulate delivery services as part of their normal business restrictions of cannabis activities under Proposition 64. It has not yet been officially resolved whether local governments can entirely prohibit the presence of cannabis delivery vehicles within their jurisdictions, even if those vehicles are not delivering or picking up cannabis within the city or county at issue. Delivery services already exist for medical cannabis, and these businesses are ready to deliver recreational cannabis as well beginning in January 2018. Other issues are bound to arise as local governments build regulatory schemes.




Protecting Free Speech with Shelby Emmett

I recently sat down with Shelby Emmett, the Director of the Center to Protect Free Speech at the American Legislative Exchange Council (ALEC, for short). Shelby, and the Center to Protect Free speech are based in Arlington, VA.

When it comes to changing policies, ALEC is an interesting organization to look at. It is the country’s largest voluntary membership organization of state lawmakers, it is a 501(c)3 policy think tank, and it has a 501(c)4 affiliate—ALEC Action. The Center falls squarely under the 501(c)3 part of the organization.

To learn more about the work that ALEC, and the Center to Free Speech, do you can visit the links above, or check out their social media feeds.

Facebook: American Legislative Exchange Council

Twitter: @ALEC_states

Shelby Emmett’s Twitter: @SpartanShelby




When California voters passed Prop 64 in the November 2016 election, they legalized the use and possession of recreational cannabis. This may sound simple, but the decriminalization and legalization of a previously illicit substance requires an intensive regulatory scheme. Prop 64 authorizes three main state agencies to promulgate cannabis regulations: The Bureau of Cannabis Control is in charge of licensing cannabis retailers, distributors, and microbusinesses; CalCannabis licenses and regulates cannabis cultivation; and the Manufactured Cannabis Safety Branch licenses and regulates the manufacturing and testing of cannabis.

The Bureau of Cannabis Control (the “Bureau”) is established within the California Department of Consumer Affairs. The Bureau is dedicated to regulating the cannabis industry, both recreational and medical, and is charged with overseeing other state departments that are given specific licensing duties in certain areas of the industry. The Bureau’s activities, as well as the activities of those departments under its supervision, are supported by the Marijuana Control Fund. In turn, the Marijuana Control Fund is supported by taxes levied on marijuana products and cultivation, as well as civil penalties for violations of marijuana regulations. These taxes go into the California Marijuana Tax Fund, which is kept separate from the state’s General Fund.

CalCannabis is set up within the California Department of Food and Agriculture. CalCannabis is the agency that regulates cannabis cultivators and importantly establishes a track-and-trace system for cannabis. It is in charge of giving licenses to cannabis growers. The track-and-trace system is essential to keeping California in line with the Cole and Ogden memos providing states some leeway with recreational cannabis, within federal guidelines outlined in the memos, as discussed in a previous post. CalCannabis will focus much of its regulatory power on ensuring that California-grown cannabis stays within the state and is not sold to underage individuals.

Finally, the Manufactured Cannabis Safety Branch (the “Branch”) is housed within the California Department of Public Health, and is charged with regulating and licensing manufacturers of cannabis products, like edibles and other THC-infused products. The Branch also regulates the transport, distribution, and storage of medical cannabis in California.

Since Prop 64’s passage in November 2016, these agencies have been working to establish a regulatory scheme comprehensive enough to meet a January 2018 “launch” date, when recreational cannabis sales are scheduled to go “live.” Even with these three agencies working hard to develop regulations in time, some issues remain unresolved – particularly the banking issue, to be covered in a later post. But for now, the Bureau of Cannabis Control, CalCannabis, and the Manufactured Cannabis Safety Branch are rapidly developing regulations to get the new recreational cannabis industry running for the new year.




With the federal indictments of former Trump campaign officials, the President’s pardon power – which he has tweeted about and used, to exonerate Maricopa County sheriff Joe Arpaio – is again in the news.  While questions exist as to the scope of the President’s power, like whether he can pardon himself, one limit is settled – the President’s pardon power only extends to federal crimes.

A consequence of our federal system, which spreads power among multiple levels of government, is that state prosecutors may investigate potential violations of state laws at the same time as the federal special counsel investigates violations of federal laws.  So, New York Attorney General Eric Schneiderman is reportedly investigating whether the Trump campaign officials indicted for federal financial crime violations also violated state financial crime laws.

And if these or other individuals subject to the state investigations seek mercy, the President of the United States does not have the power to help them.  They must appeal to the state’s governor or otherwise seek clemency under state law.

For more on how potential Presidential pardons would affect ongoing investigations, check out Andy Wright’s Possible Presidential Pardon Scenarios on Just Security.




When you think of the right to vote, you probably think about state laws.  But cities and towns make laws that control the right to vote, too.  Did you know that “in November 2016, Berkeley, California decided to lower the voting age to sixteen for its school board elections and San Francisco voters narrowly rejected a referendum to reduce the voting age to sixteen for all of its city elections?”

Professor Joshua A. Douglas of the University of Kentucky College of Law shows how municipalities in California and across the nation are trying out expanded types of voter qualifications, playing their constitutional role as “laboratories of experiment” for new ideas, or “test tubes of experiment” in Professor Douglas’s words.

For the issue brief, see Joshua A. Douglas’s Expanding Voting Rights Through Local Law.

For the full law review article, see The Right to Vote Under Local Law, also by Joshua A. Douglas.

By: Mike Vitiello

Intro to Marijuana Law

Marijuana law is one of the fastest-growing areas of the law in most states throughout the country. California is no exception, particularly since the state’s voters passed Proposition 64 in the November 2016 election, legalizing recreational use of marijuana for adult users. Since then, the state has established new agencies, which in turn have promulgated many new rules to regulate recreational use of marijuana when sales go “live” in January 2018.

With this recent legitimization of marijuana use, the field of “marijuana law” has developed significantly since its previous days as essentially a niche of criminal defense. In states like Colorado, Washington, and now California that have legalized recreational marijuana, individuals in the marijuana business need legal advice on many aspects of the trade – from contract negotiation to licensing applications and insurance issues. Not only is the area developing for private marijuana law practice, but several of these state agencies are hiring as well, including the Bureau of Cannabis Control, the Department of Health, and CalCannabis Cultivation Licensing.

The emerging field of marijuana law is not without a few wrinkles, however. Most notable is the fact that marijuana remains a Schedule I drug under the Controlled Substances Act, meaning that use or possession of the drug in any form and in any amount remains illegal under federal law, regardless of state law. The Obama administration’s tolerance of state legalization can easily be reversed by the Trump administration. Given this balance, lawyers in the field of marijuana law can face professional responsibility issues as to how they advise their clients – a basic tenet of attorney ethics is never to advise one’s client to engage in a violation of the law.

Despite the uncertainty with the new administration’s approach to marijuana, the field prevents many opportunities for lawyers as the new legalization regime develops and becomes more established.




The Controlled Substances Act (CSA), signed into law by President Richard Nixon in 1970, is the main federal statute regulating possession and use of certain substances, such as heroin, LSD, and cocaine. The CSA has five “schedules” that rank these substances based on three main attributes: the drug’s potential for abuse, existence of a current medical use, and its potential for safe use under medical supervision. The Food and Drug Administration (“FDA”) and the Drug Enforcement Administration (DEA) make these determinations.

Schedule I is for substances that the FDA and DEA have determined to have a high potential for abuse, no currently accepted medical use, and a lack of safety for use under medical supervision. Schedule I drugs are the most tightly regulated of all five schedules. Any use, even simple possession, of any amount of a Schedule I substance is illegal and punishable under federal law. Cannabis is currently classified as a Schedule I drug in the CSA, along with heroin, peyote, and MDMA. Any possession or use of the substance, even if legal under state law, is illegal under federal law and punishable under the CSA.

There is substantial public support for marijuana’s medical use, indicated by 29 states in the country legalizing some form of medical or recreational marijuana. The CSA has not caught up to public sentiment, largely in part to the different processes between a state ballot initiative and rescheduling of a substance in the CSA. At the state level, citizens can generally make any change to the law by drafting an initiative, qualifying it the ballot, and passing it by the required vote at an election. By contrast, the CSA entails a more stringent process. Generally, in order for the DEA ad FDA to find a substance to just have medical treatment value – let alone make determinations regarding potential for abuse or potential for safe use under medical supervision – it must meet five conditions:

  1. The drug’s chemistry must be known and reproducible;
  2. There must be adequate safety studies;
  3. There must be adequate and well-controlled studies proving efficacy;
  4. The drug must be accepted by qualified experts; and
  5. The scientific evidence must be widely available.”[1]

One of the most prominent difficulties for cannabis in meeting these five conditions is that it is very difficult, if not impossible, to have two different samples of cannabis leaves with the exact same chemical makeup. This is due to the fact that it is harvested off of a natural plant. Further, different varieties of cannabis plants have different chemical makeups, creating even more variations. Therefore, under the CSA’s current structure and requirements, it is unlikely that cannabis can be rescheduled as a drug with potential medical value.

In response to this difficulty, members of Congress have introduced bills that would reschedule cannabis within the CSA. The most recent attempt at legislative rescheduling is House Resolution 2020, which would place cannabis in Schedule III (which lists drugs that have lower potential for abuse, currently accepted medical use, and low/moderate risk of dependence if abused). Possession and use of Schedule III drugs without a prescription is illegal, so rescheduling cannabis to this category would greatly restrict, if not outlaw entirely, its recreational use. H.R. 2020 was introduced by Rep. Matt Gaetz, a Florida Republican, in April 2017. Given the public sentiment overall in support of medical marijuana and a new wave of support in Congress, a legislative rescheduling may be possible, however it remains unlikely that cannabis will be rescheduled by the DEA and FDA.

[1] Jonathan P. Caulkins et al., Marijuana Legalization: What Everyone Needs to Know 84 (2d ed. 2016).




Congress has the power to regulate how guns are sold at gun shows, or to prohibit gun show sales entirely.  But it has not done so. This leaves a patchwork of different state rules across the nation. And while states may create and enforce their own rules within their geographical areas, policy choices of neighboring states inevitably bleed across the borders. A recent UC Berkeley study showed that gun violence increased 70 percent in parts of California after Nevada gun shows.

The National Institutes of Health (NIH) partially funded the gun show study. However, for two decades, the Centers for Disease Control and Prevention (CDC) has not funded gun violence research because the CDC is prohibited by Congress from using appropriated money“to advocate or promote gun control.” Since 2012, the NIH has been subject to a similar restriction, but has interpreted it to permit funding research such as the Nevada gun show study. According to a piece in JAMA:

Why the 2 federal agencies have interpreted the same rider so differently is not clear. Critics say the CDC has overreacted to the amendment’s vague language. But other observers note that the size of the NIH budget gives it less reason to be concerned about retaliation by pro-gun members of Congress.”

To read the entire article, see: Tale of 2 Agencies: CDC Avoids Gun Violence Research But NIH Funds It

Check out our In Briefs:

Congress’s Commerce Power




Congress’s Commerce Power

In some countries, the national government could devise a way to combat homelessness, fund it, and implement a single solution in the same way throughout the country.  Not so in the United States.  Despite the Court’s broad interpretation Congress’s commerce power, Congress does not have the power to tell states that they must adopt a particular solution to homelessness.

It can, however, use taxpayer money to encourage states to develop solutions.  That’s what Congress and the Department of Health and Human Services (DHHS) have done.  Congress gives money to manage the Medicaid program to the states.  DHHS granted California a waiver from Medicaid rules to implement its own solution, which is to use the federal money to award “Whole Person Care” grants to cities and other groups to coordinate the number of different types of care that vulnerable populations, such as the homelessness, need.

Sacramento received one of the grants.  But while cities, like Sacramento, have the power to create and coordinate the extensive outreach necessary to direct homeless people to medical and mental health care services, counties are the entities charged by the state with delivering those services, and counties are the ones that receive taxpayer funding to do so.  So, implementing a “Whole Person” homelessness solution requires a team of government entities, at different levels, working together to exercise their various powers granted in a constitution or delegated by a legislative body to get the job done. While a system of diffused power encourages new ideas and fresh approaches, it also increases the likelihood of complications, when entities charged with addressing different parts of a policy problem, like homelessness, find it difficult to collaborate.

Yesterday, the Sacramento Bee’s Editorial Board penned its opinion on the current situation in Sacramento. You can read it here.

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The filibuster is an oddity of Senate procedure at the federal level, which, when available, allows Senators in the minority to influence the content of bills by threatening to block consideration of it.  In the last number of years, the Democratic and Republican Senate leaders have eliminated this rule for Presidential appointments.  Although it still remains for legislation, the Senate can write it away for bills with budgetary impacts.  That’s what the Senate did last week, paving the way for passage of a tax reform bill by a mere Senate majority, rather than 60 votes out of 100 if the filibuster were available.

USA Today explains:

The biggest thing — which senators from both parties emphasized this week — is the passage of “reconciliation instructions” that tell the Senate Finance Committee that a tax bill cannot be filibustered if it adds $1.5 trillion or less to the deficit. …

The budget also includes reconciliation language that the energy committee could use to ease restrictions on oil drilling in the Arctic, so a bill that is brought up to do that also may not be filibustered.”

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