Recent Cases Highlight the Importance of States' Protections of Liberties
	By VIKRAM DAVID AMAR
	Friday, May 22, 2009

Even as most observers are rightfully focused on the effect that the replacement of U.S. Supreme Court Justice David Souter this summer might have on the protection of constitutional rights in America, a pair of recent cases from California should remind us that state law and state courts – as opposed to federal law and federal courts – can often be the most effective guarantors of liberty. In this column, I'll describe those cases and explain their significance.

A Case Challenging California's Proposition Decriminalizing Medical Marijuana

The first case involves California's decriminalization of marijuana for those who have a documented medical use, under a voter initiative (Proposition 215) passed in 1996. Legislation adopted pursuant to the initiative instructed California counties to issue identification cards to those individuals who have established a medical need, so that they would be immune from state or local prosecution for possessing small amounts of marijuana. Even after Proposition 215, California law still criminalizes non-medical possession and use of marijuana.

Two counties in the state filed suit in state court, challenging the state law requirement that they issue ID cards to marijuana users. The counties noted that all marijuana possession and use is made criminal, without exceptions, under federal law – a federal law that was upheld by the Supreme Court as being within Congress' powers earlier this decade. The counties then argued that the relevant federal law "preempts" (that is, displaces) Proposition 215. As the lawyer for one of the counties put it: "State law [impermissibly] authorizes individuals to engage in conduct that the federal law prohibits . . . [creating] a conflict between federal and state law."

The California Court of Appeal rejected this argument and upheld Proposition 215 and the impositions on counties it created. The California Supreme Court then declined to hear the case, and just this week, the U.S. Supreme Court denied the counties' requests to step in.

The U.S. Supreme Court's decision not to grant review in the case does not imply an endorsement of the California court's ruling that Proposition 215 remains valid state law. However, the Court's decision does send a signal that federal courts are disinclined to examine whatever decisions states make about whether and how to enforce state criminal laws against drug users. State laws and state courts, are, in practical terms, likely to be free to condone conduct that might be criminal under the federal code.

On the merits, the counties' claims to the contrary seem far-fetched if not frivolous. To be sure, state entities cannot themselves violate federal law; for instance, state agents cannot themselves possess or distribute marijuana. Moreover, states cannot interfere with federal law enforcement – they cannot, for instance, harbor marijuana users and shield them from federal authorities. But states have no obligation to reinforce the federal criminal law or assist in implementing it.

Although the federal government remains free to administer its own criminal laws, there is nothing in the federal Constitution or federal statute books that tells states what criminal laws states must have or enforce. (Interestingly, the Obama administration has suggested that it will generally not enforce the federal criminal marijuana laws against persons who are not also violating state law, further undermining any notion that state and federal law "conflict" here.)

More generally, contrary to the suggestion of the aggrieved counties, states can indeed "authorize" people to do things that run afoul of federal law -- as long as that authorization does not constitute aiding or abetting under federal criminal law. And a state's decision simply to stop prosecuting a subset of drug users – and its implementation of a system to help identify that subset – surely cannot be preempted (nor is such an omission itself aiding and abetting). In fact, if the federal government tried to prevent a state from merely deciding not to criminalize certain conduct and implementing that decision, there would be serious constitutional doubt about federal power to do so.

In sum, to the extent that the counties have a beef, that beef is with state law, not with any conflict between state and federal law. From the federal point of view, states are free to decriminalize and "authorize" (if by "authorization," we mean simply decrimininalization) anything they want.

A Case Challenging Schools' Claimed Power to Test Students for Drugs

The second recent case, Brown v. Shasta Union High School District, involves not the freedom to use drugs, but rather the freedom from being tested for drugs.

The case arose because a high school district in Northern California (in Shasta county) implemented a drug-testing policy that required high school students engaged in a whole range of "competitive" activities, including but not limited to sports and other extracurricular pursuits, to submit to a urine sample to be tested for illegal drugs.

The U.S. Supreme Court has twice in the past fifteen years upheld drug testing schemes for high schoolers. First, in 1995, in Vernonia School District 47J v. Acton, the Justices upheld a policy under which a school randomly tested high school athletes for drug use. In particular, the Court held that in a variety of ways--communal showers and locker rooms, close physical contact with fellow athletes, and the general need to undergo physical exams and medical testing--student athletes had already surrendered much of their privacy. The Court also noted that student athletes are often role models in high school, and are especially at risk of physical injury if playing while on drugs.

Then, in 2003, the Supreme Court extended (and to my mind betrayed) Vernonia in Board of Education v. Earls, where the Court upheld an Oklahoma local school board rule requiring each student participating in any extracurricular activity-band, choir, or even the Future Farmers of America, to submit to drug testing.

When the Shasta District policy was challenged in state court, however, a California trial judge earlier this month enjoined (that is, blocked the enforcement of) the policy. Although the school authorities might appeal to the higher courts in the state, for now the policy is blocked.

Why the different result from the Earls case? One possibility is that Earls involved only students involved in extracurricular activities, whereas the Shasta policy covered some students who were simply taking classes. The California trial judge did note that possible difference. Yet the reasoning of Earls would seem to suggest that a program requiring all high school students to submit to drug testing before entering the classroom would likewise pass muster.

The key difference in the Shasta case is that the challenger's claims were brought not in federal court under the federal Fourth Amendment, but rather in state court under the California Constitution. Significantly, the California Constitution contains an explicit "privacy" protection clause, and the California Constitution has been understood to require more individualized suspicion than the federal Constitution requires before government searches may be conducted. The California court based its ruling on the simple but compelling ground that government conduct permitted under the Fourth Amendment may still be prohibited under the state constitution.

To my mind, the California trial judge got things right. Indeed, I have argued on this website that the U.S. Supreme Court is under-reading the protections afforded by the federal Fourth Amendment in cases involving high school students.

Yet if the Supreme Court is defining federal rights narrowly, and might continue to do so no matter whom President Obama selects to be on the Court, it is important for the country to remember that the Supreme Court isn't the only court that matters, and that the federal laws it interprets are not our sole source of protections.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.