Jaborwocky's Challenge

THE DAWNING OF A NEW DAY COMES

I challenge all Presidential Candidates to discuss the real problems of our national economy, starting with the prohibition of Marijuana. This industriy is capable of infusing our economy with hundreds of thousands of jobs, and billions of dollars. Whereas, the federal prohibition against it is actually costing us hundreds of billions in annual cash and several million lost jobs.

“Hemp” and “cannabis” are the traditional names for what is now called “marijuana” or “pot.” prohibition of hemp makes no sense at all, when the facts are that industrialized hemp:

• has no intoxicating “high” in it,
• is capable of replacing 90% of wood products,
• and 80% of petroleum products—including plastic,
• is annually renewable,
• and outproduces trees 4 to 1.
• Marijuana has never been proven to be a dangerous drug, but smoking it is legally dangerous according to the US Federal Government, which also has mandatory sentencing for it--all the way up to life imprisonment. 

Over 850,000 people last year were arrested in the USA for being caught with marijuana.2 This leads to astronomical costs for courts, police, citizen/taxpayers and our mental states about it.3 Meanwhile, experts estimate 70,000 tons of it are imported each year, as well as 70,000 tons also being grown here in the states. 4 (All of it pot, not hemp—in a black market reaping billions annually)

That is only for the medicinal marijuana! -- not even allowing industrial hemp production for building materials, energy production, and food—potentially 100 times more profitable than pot--which is another lost-cost in our ailing economy. Obviously, using marijuana for food, energy, and building would take us off the petroleum codependency, and not only create jobs, but infuse the economy with billions-- even if medicinal marijuana were still federally illegal. 5

So, that is the first costly irrational argument: 

“industrial hemp is dangerous,”  ---

which is impossible to prove true since it involves non-thc plants in the first place.

But the government refuses to see ANY benefit from marijuana/hemp;

because the government makes money overtly and covertly (i.e.illegal) on their never-ending “Drug War”.

But in an economy like we have now, it is impractical to ignore the economic benefits that industrial hemp could provide.6 And then there are the environmental impacts of continuing the use of petroleum, coal, forest-products, animal-proteins, and poisonous pharmacopoeias. 7

The question now is legally testing the “balance of powers” between the Federal government and the State governments. In fact, the US Supreme Court in a unanimous 9-0 opinion last year, decided that there is the possibility that State laws and Federal Laws and the rights of individuals within their state laws, because they are all equal under our Constitution; citizens may have the right to a legal decision from the courts, especially under citizens’ initiatives and illegitimate federal statutory laws. This is a landmark decision that begs for court cases on this to set precedents. 8

Another mind-boggling Supreme court decision 6 years ago, claims that “medical marijuana” is not a reality on the federal level, and cannot be used as a defense against the Federal drug laws. So, we have a “tweedle-dum and tweedle-dee legal conundrum. 9

The bottom-line is that Industrial hemp is vastly different from medical marijuana, and they should not be lumped together as illegal. Industrial hemp has no drug value whatsoever, thus it has no illegal use. So, why is it illegal?

Obviously, medicinal marijuana and industrial hemp are here to stay. Not even the most advanced state-of-the-art DEA can eradicate what keeps escalating around medical marijuana and industrial hemp. Is there any clarity or logic in this when our economy begs for help?

Some people might say that “if we follow the money” we will find the culprits. However, in an economic slump, if we follow the “Lack of money”, we find that lack filled with innovative black markets. After all, people will do what they need to survive, especially if they are desperate.

I am not trying to rationalize the black-market, I am merely pointing out the obvious. I am pointing out that these multi-billions/year underground industries are the elephant in the room no one is talking about.10 The only logical explanation is that those who choose to abuse the law, are the ones benefiting from these activities; namely illegal growers, crooked cops, and the Global Corporate Empire.

Meanwhile, “state-legal” medical marijuana card holders are punished, berated, and slandered. AND this while the local news publishes locations of outdoor grows in Southern Oregon, thus jeopardizing the security of many people.

Let me just list the most obvious irrational parts of the Medical Marijuana law and process:

• Medicine takes a doctor's expertise to decide, not politicians and government bureaucracies.
• Anything that medical marijuana helps heal is why any medical marijuana patient should have easy and reasonable access to it.11
• One plant can yield 2-4 pounds or less than an ounce, so limits like “6 mature plants” or “1.5 pounds of dried and cured buds” are ridiculous.
• Access through dispensaries is illegal, but not all patients can grow their own, so where do they get their medicine?
• The “caregiver/grower” is thus in a quandary as to how to afford the expenses of growing if they cannot be compensated for labor as well as supplies.
• With the difference between harvest yields, there can be no accurate number of pounds or plants that fit all patients, as some will need stronger medicine or more often need it than others.
• Medical Marijuana not only covers its own costs through fees, but now can supplement other
  state programs financially. But none of this money would be there if there is not a Medical Marijuana program.
• And this money must be allocated for safe patient access through a dispensary.
• Without dispensaries for those patients who cannot grow their own, there is only one recourse: find a caregiver/grower, which has often led to various unethical situations where growers have ripped off patients as well as the legal process. These people sell to anyone who will buy and do not care how much it hurts the program’s efficiency. So, without dispensaries, many patients have no choice but to keep going through growers who may or may not rip them off.
• If dispensaries were federally legal (they are state-legal in 8 of the 16 Initiative-states that have passed medical marijuana laws),12 They could be monitored for compliance and be a safe access source for patients. But instead of medical marijuana funds helping this happen, we have illegal dispensaries defying the federal law.
• Of course, at some point, the IRS would like to know who is making money on this, so they can tax them. And actually being accountable and transparent would make this work; but without any accountability it is really “organized crime” keeping the books and responsible for their taxes. So, how much tax are we losing on this? Several BILLION dollars a year!
• Most people are not aware that the more money someone invests in a grow, the more yield and better quality they will get. But for most who try to grow, they are limited in their financial resources and cannot afford to grow correctly. This means that the really huge, rich growers hiding behind medical marijuana status are the main ones abusing the program. All the little,
  poor people are left to fend the best they can.
• But for poor people, who have no chance to grow for themselves--If you cannot afford the medicine that keeps you alive, what would you do?
• So, limits on weight or plant numbers is irrelevant, as they make no sense at all.
• Amounts needed for medication are legally arrived at between doctor and patient and are totally up to doctor and patient.
• Access is not legally available except through a caregiver/grower relationship in most of the states that have passed medical marijuana laws.
• The federal law is not going away by itself and now threatens safe access.
• State initiatives are going against federal laws.
• Industrial hemp is completely ignored or discouraged.
• Accountability, at least in the tax on sale of medical marijuana, is nebulous at this time.
• Doing away with medical marijuana laws would not put a dent at all in the “US DRUG WAR,” which existed long before medical marijuana was recognized through initiatives.

Denial is a sure sign of codependency. The denial of common sense, in connection with drug laws is causing tremendous problems now for millions of Americans. Are there any solutions on the horizon?

Well, my solution is simple:

1. Acknowledge that there is a “healthy” way to grow and dispense medical marijuana (and industrial hemp--just collecting all the stems from Oregon growers would already build several homes per year).
2. Admit that “doctor-patient privilege” means just that and is no one else’s business.
3. Agree that plant numbers and pound weight is irrelevant except for taxation of any
   dispensary profits.
4. Allow the individual state initiatives their sovereign rights to decide the law for their state.

Without any legal proof against marijuana’s beneficial effects, the government has held to an illegal law for decades and imposed serious penalties upon millions of citizens. All of that is funded by our taxes, so we are paying for it.

It is about time we demanded PROOF that this plant is dangerous in any way, or else it should be allowed for the states to decide. 

Certainly, politicians have no training in medical realities and it is totally out of their jurisdiction, especially if they cannot prove their point in the face of the overwhelming scientific knowledge about it.

At the least, the government should be researching marijuana as a medicine, but it does not. In fact, it is so totally suspicious that they refuse to relate to the logical economics -- that is, until we discover that Big Pharma has a trillion dollar15 interest in this medicine, has been researching it extensively, and is ready to trademark various components of marijuana for sales. 16 No wonder we get the shaft on our citizen initiatives in the face of this illegal law against medical marijuana.

The important point is, medical marijuana is not only a super powerful medicine for a vast array of ailments from Cancer to menstruation, but it also is one of the few medicines people could grow easily and use for themselves without having to go to a pharmacy.

So, I want to assert my right to grow my medicine in a safe and reasonably priced manner without curtailment whatsoever, as long as I do not break any laws that have victims. If it hurts no one else, my choices in dealing with my health are my rights to exercise and are reserved to me by the Constitution.

So, what I want is:

1. A reasonably safe way to grow my medicine,

2. A reasonably safe way to dispense my medicine to others who need it,

3. A reasonably safe way to obtain medical marijuana when my crops fail or are ripped off,

4. Reasonable limits to grow as much as I need for that purpose.

5. A reasonable way to be accountable,

6. To receive fair monetary compensation for my work,

7. To pay taxes,

8. Reasonable protection from rippers (including newspapers that publish locations of grow sites),

9. And I want the surplus of OMMP funds going into medical marijuana research and drug-education programs (ones that do not target marijuana--NO D.A.R.E. type programs) in schools.

We are already going in this direction with OMMP; we are now putting millions of dollars into the state coffers with medical marijuana. And if we allowed for dispensary compensation to do the same economically for our state OMMP needs, we would be providing thousands of jobs generating billions of dollars without polluting or going to war.

• imagine growers and dispensaries that are accountable and transparent,
• imagine the taxes from sales of medical marijuana,
• imagine the benefits of hemp building materials (they have the tinsel strength of steel)17,
• imagine healing people and our environment with these economies is possible.
• Imagine 850,00018 people a year in the USA NOT going to jail for pot,
• Imagine 850,000 USA court cases and costs per year eradicated,
• Imagine 850,000 American citizens not having their lives totally disrupted every year,
• Imagine no need for medical marijuana DEA raids or industrial hemp raids,
• Imagine how much pot John Lennon smoked before he wrote “Imagine”
• and would he have written it if he didn’t inhale?

1. I want to see this problem resolved once and for all. I want to heal the cancer19 in my body, medical marijuana will do that. It IS a matter of life and death.
2. I want to heal the environment, industrial hemp will do that.
3. Plus I want to heal the economy. Both Medical marijuana and industrial hemp will do that. They will allow us to move intelligently with a healing modality that could change our dysfunctional systems into efficient tools for humanity’s more noble aspects to manifest.

A final tidbit of marijuana weirdness is that even though they say it has no medical value, the US government several years ago patented marijuana and all and any of its derivatives. What does that mean with all the info we now have? Pharmacopia Pot is on the horizon, Big Pharma is lining up; and yet, obviously, marijuana and hemp use will continue to escalate in our world. All the state-of-the-art DEA drug war militia, and all the laws we could possibly create to deal with the drug war have been impotent in the face of this problem.

I know I am not the only one who notices the emperor is naked and wears “NO CLOTHES” in this global empire, no matter what his tailors say. And I feel confidant that cannabis is ready to play its part In changing the world. Let’s let the medicine heal us and the hemp buildings support our lifestyles. Let’s take our down-economy and use the opportunity to create state-wide industrial hemp growing and processing systems here that will put citizens needing jobs to work.

Personally, I would even give up OMMP for Industrial Hemp, because the industry of it would create the collective understanding of how beneficial this plant is and how dumb the laws are. People would then get over their hemp-phobia too. All my suggestions here are an attempt to create a world where it is possible to have our pot and smoke it too, as well as build our homes out of hemp and save the trees. It might even be so good here that we could call it heaven on earth…. just imagine……..

Editor's note:

Jack Herer once said to me that people tell him "...not to preach about hemp, but," he said, 

“Stress and anxiety are the main causes of disease in the body. If you lessen the stress you stay healthier and so you do not die early. So, I have to tell you to smoke pot to save your life.”

When it comes right down to it, he is right. 

The only abuses in using pot are actually personal growth points dealing with psychological effects and disorientation. 

Even smoking pot with all its tars has helped my lungs survive pollution and tobacco smoke.

God put this amazing healing plant here on Earth, gave us a cannibinoid receptor system in our body, and made cannabis one of the most prolific pants ever; a plant that gives more medicine, food, fuel, and fiber than all the other plants on Earth COMBINED TOGETHER!

<<- Historical pic of hemp harvesting on $10 bill

Cannabis is the # 1 natural renewable resource on the planet, and has been used by humanity ever since the caveman. 

Only in the 20th century, in the age of oil, industrialism and global corporations, has it been made illegal.

Our founding fathers; Thomas Jefferson, Ben Franklin, and George Washington wrote in their journals and letters about this wonderful plant. 

Jefferson encouraged the southern farmers to use hemp instead of tobacco on their plantations, writing them many letters about its benefits. 

He even sent his agents to China to steal hemp seeds. 

In fact, at one point in colonial times it was a law that every farm had to grow 10% of their crops to be hemp. 

AND people could pay their taxes with hemp back then too!

Jack Herer taught many of us the truth about cannabis. More than that, he wrote the most extensive book on the subject ever published, including all the facts, figures and history of the conspiracy against hemp that illegally passed a law banning hemp in 1936. After more than 25 years of republishing this book, no one has ever been able to prove him wrong about hemp.

Cannabis is a wonderful plant that can help us create a beautiful Wonderland. We just need to be honest and truthful about it, then we can get on with the bliss of life on Earth. Thanks for taking the time to read what I have shared. Please pass this around if you want and comment to me,

thanks,

Neriah Lothamer

neriah@neriahlothamer.com

It makes no sense whatsoever in these hard times to ignore and make illegal the #1 natural resource on Earth. 

Until we adjust our collective attitude toward Hemp, we will continue to use polluting and costly poisons for energy and building, and undigestable, chemically polluted, gmo soybeans for plant proteins. 

Deforestation could cease if we used Hemp for building materials. 

The list goes on; plastics, fuel, clothing, glues, sealants, paper, cardboard, ropes, sails, and endless possibilities of other uses of Hemp that would help our world and economy. 

YOU CAN Help clear the Hemp-phobia of America by supporting this common sense approach to jobs, economy, and clean environment with the #1 non-toxic, natural, annually renewable resource on Earth.

The estimated market is in the Trillion$! 

Common sense says, "Legalize Industrial Hemp Now."

Please click the petition below.

Legalize Industrial Hemp

signon.org

I just signed a petition to The Oregon State House, The Oregon State Senate, Governor John Kitzhaber, The United States House of Representatives, The United States Senate, and President Barack Obama: Legalize Industrial (no thc) Hemp for the sake of jobs 

1

Footnotes , references, quotes and more talking-points:

Figure 1. Pharmacological actions of non-psychotropic cannabinoids (with the indication of the proposed mechanisms of action).

.

2 The Supreme Court recently ruled that the U.S. Justice Department, including the Drug Enforcement

Agency, may prosecute state-authorized medical marijuana patients for violating the federal Controlled

Substances Act. What does this decision mean for seriously ill patients and for the ongoing tension between

state and federal laws?

3 Enforcing marijuana prohibition costs taxpayers an estimated $10 billion annually and results in the arrest of more than 858,000 individuals per year -- far more than the total number of arrestees for all violent crimes combined, including murder, rape, robbery and aggravated assault.

4 http://www.prohibitioncosts.org/MironReport.pdf

5 http://www.prohibitioncosts.org/mironreport.html

This report concludes that marijuana legalization would reduce government expenditure by $7.7 billion annually. Marijuana legalization would also generate tax revenue of $2.4 billion annually if marijuana were taxed like all other goods and $6.2 billion annually if marijuana were taxed at rates comparable to those on alcohol and tobacco. These budgetary impacts rely on a range of assumptions, but these probably bias the estimated expenditure reductions and tax revenues downward.

6 http://www.drugscience.org/Archive/bcr2/MJCropReport_2006.pdf

USA 2006 - Marijuana is the largest cash crop in the United States, more valuable than corn and wheat combined. Using conservative price estimates domestic marijuana production has a value of $35.8 billion. The domestic marijuana crop consists of 56.4 million marijuana plants cultivated outdoors worth $31.7 billion and 11.7 million plants cultivated indoors worth $4.1 billion. Despite intensive eradication efforts domestic marijuana production has increased ten fold over the last 25 years from 1,000 metric tons (2.2 million pounds) in 1981 to 10,000 metric tons (22 million pounds) in 2006, according to federal government estimates. 4) Marijuana is the top cash crop in 12 states, one of the top 3 cash crops in 30 states, and one of the top 5 cash crops in 39 states. The domestic marijuana crop is larger than Cotton in Alabama, larger than Grapes, Vegetables and Hay combined in California, larger than Peanuts in Georgia, and larger than Tobacco in both South Carolina and North Carolina.

http://www.drugscience.org/Archive/bcr2/MJCropReport_2006.pdf

7 http://www.olywip.org/site/page/article/2011/01/11.html

"Hemp is the standard fiber of the world. It is used to produce more than 5,000 textile products, ranging from rope to fine laces, and the woody "hurds" remaining after the fiber has been removed contain more than seventy-seven per cent cellulose, and can

be used to produce more than 25,000 products, ranging from dynamite to Cellophane." Popular Mechanics, "Billion Dollar Crop", 1938 The crop is grown in all industrialized nations except one. The European Union subsidizes industrial hemp…..

8 http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf

9 http://usgovinfo.about.com/gi/dynamic/offsite.htm?site=http://www.cnn.com/2005/LAW/06/06/scotus.medical.marijuana/index.html

WASHINGTON (CNN) -- The U.S. Supreme Court on Monday ruled doctors can be blocked from prescribing marijuana for patients suffering from pain caused by cancer or other serious illnesses. In a 6-3 vote, the justices ruled the Bush administration can block the

backyard cultivation of pot for personal use, because such use has broader social and financial implications.

10http://usgovinfo.about.com/gi/dynamic/offsite.htm?site=http://www.cnn.com/2005/LA

W/06/06/scotus.medical.marijuana/index.html

"Congress' power to regulate purely activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce is firmly established," Justice John Paul Stevens wrote for the majority.

11 See figure 1 above

12 http://www.medicalmarijuanablog.com/dispensaries/state-by-state-listings-043.html

13 http://hightimes.com/grow/nico/6216

14 http://growweedeasy.com/easiest-grow-method-cfl-coco-coir

15 http://montanabiotech.wordpress.com/patent-trademark-cannabis-medical-marijuanastrains-

varieties-products-and-services/

16 http://online.wsj.com/article/SB10001424052748704677404576285011036650834.html

17 http://www.youtube.com/watch?v=8AzbtWzwK8A

http://www.hemp.org/news/hempcrete-hemp-building-materials

http://www.hemphasis.net/Building/building.htm

http://content.usatoday.com/communities/greenhouse/post/2010/09/hemp-houses-builtasheville/1

http://www.hempcompany.ie/node/186

18From Norml: More than 800,000 Americans were arrested on marijuana charges last year, and more than 5 million Americans have been arrested for marijuana offenses in the past decade. Almost 90 percent of these arrests are for simple possession, not trafficking or sale. This is a misapplication of the criminal sanction that invites government into areas of our private lives that are inappropriate and wastes valuable law enforcement resources that should be focused on serious and violent crime.

19 http://www.cannabisculture.com/articles/5169.html

http://www.thenhf.com/article.php?id=497

http://www.nowpublic.com/thc_marijuana_helps_cure_cancer_says_harvard_study

HEMP OIL CURES CANCER: Medical marijuana is becoming more and more associated with anti-carcinogenic effects, which are responsible in preventing or delaying the development of cancer. This means that cannabinoids offer cancer patients a therapeutic option in the treatment of highly invasive cancers.

Before we look at the hard medical science that sustains these statements go to http://www.youtube.com/chrychek to see a series of videos that will convince you of the validity of these statements on cancer.

The American College of Physicians wants it made legal, as do millions of other people. If you or one of your loved ones every get cancer you will be wishing that the government would begin to listen to this medical organization. 12 Million new cases of Cancer Diagnosed in 2007 in the US. In addition Cancer also killed 8 million people worldwide in 2007 - American Cancer Society After reading the science and watching this video series I am certain that any sane person with cancer or any late stage chronic disease will want free and legal access to hemp oil with a maximum concentration of THC, the active ingredient that is illegal in most places in the world. [ii]

The medical science is strongly in favor of THC laden hemp oil as a primary cancer therapy, not just in a supportive role to control the side effects of chemotherapy. The International Medical Verities Association is putting hemp oil on its cancer protocol. It is a prioritized protocol list whose top five items are magnesium chloride, iodine, selenium, Alpha Lipoic Acid and sodium bicarbonate. It makes perfect sense to drop hemp oil right into the middle of this nutritional crossfire of anti cancer medicines, which are all available without prescription.

Hemp oil has long been recognized as one of the most versatile and beneficial substances known to man. Derived from hemp seeds (a member of the achene family of fruits) it has been regarded as a super food due to its high essential fatty acid content and the unique ratio of omega3 to omega6 and gamma linolenic acid (GLA) – 2:5:1.

Hemp oil, is known to contain up to 5% of pure GLA, a much higher concentration than any other plant, even higher than spirulina. For thousands of years, the hemp plant has been used in elixirs and medicinal teas because of its healing properties and now medical science is zeroing in on the properties of its active substances.

….....................................................

This is NOT a Supreme Court RULING, but an"OPINION" they made about "standing" issues of the court. The important thing they say (unanimously) is that: under the "federalism" the Constitutional founders used in the Constitution there are reasons for federalism, namely to protect individual citizens and state's rights with a true balance of powers. The statements they make in this document lend arguments to the balancing of the rights when states or individuals are dealing with federal laws. In other words, they comment that there may be times when the federal law does not supercede state law.

NOTE: All BOLD & underline & italics are my additions, text is from the original but this is a partial copy of the text, the complete document is in pdf above as SupremeCourtOinion.pdf

Held: Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States. Pp. 3–14.

(a) The Third Circuit relied on a single sentence in Tennessee Elec. Power Co. v. TVA, 306 U. S. 118. Pp. 3–8.

(1) The Court has disapproved of Tennessee Electric as authoritative for purposes of Article III’s case-or-controversy requirement.

.............

(b) Amicus, appointed to defend the judgment, contends that for Bond to argue the National Government has interfered with state sovereignty in violation of the Tenth Amendment is to assert only a State’s legal rights and interests. But in arguing that the Government has acted in excess of the authority that federalism defines, Bond seeks to vindicate her own constitutional interests. Pp. 8–14.

(1) Federalism has more than one dynamic. In allocating powers between the States and National Government, federalism “ ‘secures to citizens the liberties that derive from the diffusion of sovereign power,’ ” New York v. United States, 505 U. S. 144, 181. It enables States to enact positive law in response to the initiative of those whoseek a voice in shaping the destiny of their own times, and it protects the liberty of all persons within a State by ensuring that law enactedin excess of delegated governmental power cannot direct or control their actions. See Gregory v. Ashcroft, 501 U. S. 452, 458. Federalism’s limitations are not therefore a matter of rights belonging only to the States. In a proper case, a litigant may challenge a law as enacted in contravention of federalism, just as injured individuals maychallenge actions that transgress, e.g., separation-of-powers limitations, see, e.g., INS v. Chadha, 462 U. S. 919. The claim need not depend on the vicarious assertion of a State’s constitutional interests,even if those interests are also implicated. Pp. 8–12.

......................

3 Cite as: 564 U. S. ____ (2011)

Syllabus

(2) The Government errs in contending that Bond should be permitted to assert only that Congress could not enact the challenged statute under its enumerated powers but that standing should be denied if she argues that the statute interferes with state sovereignty. Here, Bond asserts that the public policy of the Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of theNational Government. The law to which she is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about had the matter been left for Pennsylvania to decide. There is no support for the Government’s proposed distinctionbetween different federalism arguments for purposes of prudential standing rules. The principles of limited national powers and state sovereignty are intertwined. Impermissible interference with state sovereignty is not within the National Government’s enumerated powers, and action exceeding the National Government’s enumerated powers undermines the States’ sovereign interests. Individuals seeking to challenge such measures are subject to Article III and prudential standing rules applicable to all litigants and claims, but here,where the litigant is a party to an otherwise justiciable case or controversy, she is not forbidden to object that her injury results from disregard of the federal structure of the Government. Pp. 12–14.

(c) The Court expresses no view on the merits of Bond’s challenge

to the statute’s validity. P. 14. 581 F. 3d 128, reversed and remanded.
.....................

SUPREME COURT OF THE UNITED STATES

No. 09–1227 CAROL ANNE BOND, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT [June 16, 2011]

JUSTICE KENNEDY delivered the opinion of the Court.

This case presents the question whether a person indicted for violating a federal statute has standing to challenge its validity on grounds that, by enacting it, Congress exceeded its powers under the Constitution, thus intruding upon the sovereignty and authority of the States.....

The Court of Appeals held that because a State was not a party to the federal criminal proceeding, petitioner had no standing to challenge the statute as an infringement upon the powers reserved to the States. Having concluded that petitioner does have standing to challenge the federal statute on these grounds, this Court now reverses that determination. The merits of petitioner’s challenge to the statute’s validity are to be considered, in the first instance, by the Court of Appeals on remand and are not addressed in this opinion.......

In the instant case, moreover, it is apparent—and in fact conceded not only by the Government but also by amicus—that Article III poses no barrier. One who seeks to initiate or continue proceedings in federal court must demonstrate, among other requirements, both standing to obtain the relief requested, see Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992), and, in addition, an “ongoing interest in the dispute” on the part of the opposing party that is sufficient to establish “concrete adverseness.” Camreta v. Greene, 563 U. S. ___, ___ (2011) (slip op., at 5) (internal quotation marks omitted). When those conditions are met, Article III does not restrict the opposing party’s ability to object to relief being sought at its expense. The requirement of Article III standing thus had no bearing upon Bond’s capacity to assert defenses in the District Court. As for Bond’s standing to appeal, it is clear Article III’s prerequisites are met. Bond’s challengeto her conviction and sentence “satisfies the case-orcontroversy requirement, because the incarceration . . . constitutes a concrete injury, caused by the conviction andredressable by invalidation of the conviction.” Spencer v. Kemna, 523 U. S. 1, 7 (1998).

..................................

As explained below, Bond seeks to vindicate her own constitutional interests. The individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines. Her rights in this regard do not belong to a State.

A The federal system rests on what might at first seem a counter intuitive insight, that “freedom is enhanced by the creation of two governments, not one.” Alden v. Maine, 527 U. S. 706, 758 (1999). The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.

Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.

But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” New York v. United States, 505 U. S. 144, 181 (1992) (quoting Coleman

5. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)).

Some of these liberties are of a political character. The federal structure allows local policies “more sensitive to the diverse needs of a heterogeneous society,” permits“innovation and experimentation,” enables greater citizen “involvement in democratic processes,” and makes government “more responsive by putting the States in competition for a mobile citizenry.” Gregory v. Ashcroft, 501

U. S. 452, 458 (1991).

Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.

Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. See ibid.

By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawfulpowers, that liberty is at stake.

The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. See New York, supra, at 181. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.

The recognition of an injured person’s standing to object to a violation of a constitutional principle that allocates power within government is illustrated, in an analogouscontext, by cases in which individuals sustain discrete, justiciable injury from actions that transgress separation of-powers limitations. Separation-of-powers principles are intended, in part, to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution’s concern. The structural principles secured bythe separation of powers protect the individual as well.

In the precedents of this Court, the claims of individuals—not of Government departments—have been the principal source of judicial decisions concerning separationof powers and checks and balances. For example, the requirement that a bill enacted by Congress be presented to the President for signature before it can become law gives the President a check over Congress’ exercise of legislative power. See U. S. Const., Art. I, §7. Yet individuals, too, are protected by the operations of separation of powers and checks and balances; and they are not disabled from relying on those principles in otherwise justiciable cases and controversies.

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If the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object.

Just as it is appropriate for an individual, in a proper case, to invoke separation-of-powers or checks-andbalances constraints, so too may a litigant, in a proper case, challenge a law as enacted in contravention of constitutional principles of federalism. That claim need not depend on the vicarious assertion of a State’s constitutional interests, even if a State’s constitutional interests are also implicated.

In this regard it is necessary to address a misconceptionin the position the Government now urges this Court to adopt. As noted, the Government agrees that petitioner has standing to challenge the validity of §229. That concession, however, depends on describing petitioner’s claimin a narrow way. The Government contends petitioner asserts only that Congress could not enact the challenged statute under its enumerated powers. Were she to argue, the Government insists, that the statute “interferes with a specific aspect of state sovereignty,” either instead of or in addition to her enumerated powers contention, the Court should deny her standing.

Brief for United States 18 (filedDec. 3, 2010).The premise that petitioner does or should avoid making an “interference-with-sovereignty” argument is flawed. Id., at 33. Here she asserts, for example, that the conduct with which she is charged is “local in nature” and “should be left to local authorities to prosecute” and that congressional regulation of that conduct “signals a massive and unjustifiable expansion of federal law enforcement intostate-regulated domain.” Record in No. 2:07–cr–00528– JG–1 (ED Pa.), Doc. 27, pp. 6, 19.

The public policy of theCommonwealth of Pennsylvania, enacted in its capacity assovereign, has been displaced by that of the NationalGovernment. The law to which petitioner is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about if the matter were left for the Commonwealth of Pennsylvania to decide.Indeed, petitioner argues that under Pennsylvania law the expected maximum term of imprisonment she could havereceived for the same conduct was barely more than a third of her federal sentence.

There is no basis to support the Government’s proposed distinction between different federalism arguments for purposes of prudential standing rules. The principles of limited national powers and state sovereignty are intertwined. While neither originates in the Tenth Amendment, both are expressed by it. Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, see New York, 505

U. S., at 155–159, and action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States. See United States v. Lopez, 514

U. S. 549, 564 (1995). The unconstitutional action can cause concomitant injury to persons in individual cases.

An individual who challenges federal action on these grounds is, of course, subject to the Article III requirements, as well as prudential rules, applicable to all litigants and claims. Individuals have “no standing to complain simply that their Government is violating the law.” Allen v. Wright, 468 U. S. 737, 755 (1984). It is not enough that a litigant “suffers in some indefinite way in common with people generally.” Frothingham v. Mellon, 262 U. S. 447, 488 (1923) (decided with Massachusetts v. Mellon). If, in connection with the claim being asserted, a litigant who commences suit fails to show actual or imminent harm that is concrete and particular, fairly traceableto the conduct complained of, and likely to be redressed bya favorable decision, the Federal Judiciary cannot hear the claim. Lujan, 504 U. S., at 560–561. These requirements must be satisfied before an individual may assert a constitutional claim; and in some instances, the result may be that a State is the only entity capable of demonstrating the requisite injury.

In this case, however, where the litigant is a party to anotherwise justiciable case or controversy, she is not forbidden to object that her injury results from disregard of the federal structure of our Government. Whether the Tenth Amendment is regarded as simply a “‘truism,’” New York, supra, at 156 (quoting United States v. Darby, 312 U. S. 100, 124 (1941)), or whether it has independent force of its own, the result here is the same.

* * * There is no basis in precedent or principle to deny petitioner’s standing to raise her claims. The ultimate issue of the statute’s validity turns in part on whether the law can be deemed “necessary and proper for carrying into Execution” the President’s Article II, §2 Treaty Power, see U. S. Const., Art. I, §8, cl. 18. This Court expresses no view on the merits of that argument. It can be addressed by the Court of Appeals on remand.The judgment of the Court of Appeals is reversed, andthe case is remanded for further proceedings consistentwith this opinion. It is so ordered. .......................

JUSTICE GINSBURG, with whom JUSTICE BREYER joins,concurring.

I join the Court’s opinion and write separately to makethe following observation. Bond, like any other defendant, has a personal right not to be convicted under a constitutionally invalid law.

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In this case, Bond argues that the statute under which she was charged, 18 U. S. C. §229, exceeds Congress’ enumerated powers and violates the Tenth Amendment. Other defendants might assert that a law exceeds Congress’ power because it violates the Ex Post Facto Clause, or the Establishment Clause, or the Due Process Clause.

Whatever the claim, success on the merits would require reversal of the conviction. “An offence created by [an unconstitutional law],” the Court has held, “is not a crime.” Ex parte Siebold, 100 U. S. 371, 376 (1880). “A conviction under [such a law] is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.” Id., at 376–377. If a law is invalid as applied to the criminal defendant’s conduct, the defendant is entitled to go free.

For this reason, a court has no “prudential” license to decline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct. And that is so even where the constitutional provision that would render the conviction void is directed at protecting a party not before the Court. Our decisions concerning criminal laws infected with discrimination are illustrative. The Court must entertain the objection—and reverse the conviction—even if the right to equal treatment resides in someone other than the defendant.

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In short, a law “beyond the power of Congress,” for any reason, is “no law at all.” Nigro v. United States, 276 U. S. 332, 341 (1928). The validity of Bond’s conviction depends upon whether the Constitution permits Congress to enact§229. Her claim that it does not must be considered and decided on the merits.

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editor's note: The 10th Amendment guarantees that the states and citizens hold the rights listed in the Bill of Rights, which are all the rights not given to the federal government...remember, the states formed the federal government to protect their rights, the federal government DID NOT FORM THE STATES, they already existed and had claims to their sovereignty that they wanted protected.

Note from Lee: Federalism is a much more complicated concept than what this describes. But here are 3 important pieces:

1.  The US Supreme Court sets a floor (or minimum amount of protection) under the Bill of Rights (the first 10 Amendments to the US Constitution.)  States can exceed them (for example, Article I, Section 9 of the Oregon Constitution provides more protection than the 4th Amendment; Article I, Section 8 more than the First Amendments) 

2.  The Supremacy Clause in the US Constitution means that where there is a 'positive conflict' between federal law and state law, federal law trumps state law. 

3.  The federal government cannot 'commandeer' the states by requiring the criminalization of certain acts. 

Number 1 explains why no state can outlaw (or make criminal) an abortion during the first or second trimester of pregnancy. 

Number 3 explains why the OMPI/CSLE (const.) and Sensible Oregon (statutory) proposals would not be subject to federal preemption.  Number 2, at least arguably, describes a potential problem with OCTA. Lee Berger, Portland 

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