#16: Preempting Pot

Soon, we’ll be reading a commerce power case called Gonzales v. Raich (2005). In that case, the Court held that Commerce Clause gives Congress the power to regulate the intrastate cultivation and possession of marijuana for medical use. Because the Controlled Substances Act (21 U.S.C. 801) was a constitutionally permissible use of federal power, the law could be validly applied to California residents who possessed marijuana for medical use under California’s Prop 215.

“The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is “`superior to that of the States to provide for the welfare or necessities of their inhabitants,'” however legitimate or dire those necessities may be. Just as state acquiescence to federal regulation cannot expand the bounds of the Commerce Clause, so too state action cannot circumscribe Congress’ plenary commerce power.”Compassionate Use Act of 1996). The Court used the language of preemption when discussing the right of the federal government to pursue violations of the Controlled Substances Act in California, even when the violators were using marijuana in accordance with what is permissible under state law:

The Court’s decision in Raich, however, did not fully “preempt” California law. While the federal government reserved its right to enforce its stricter marijuana laws in California, state enforcement agencies were not obliged to follow.

This enforcement conundrum has only increased as more states have adopted more permissive marijuana laws. In light of the recent decriminalization measures in Colorado and Washington State, the Department of Justice has had to confront this difficulty head-on.

In a Senate Judiciary Committee hearing last year, the Deputy Attorney General addressed the problem of enforcement. Read this summary of the hearing.

In the hearing, Deputy AG James Cole invoked the 10th Amendment in his argument about why the federal government will not challenge the legalization of marijuana in Colorado and Washington. This has flummoxed some conservative opponents of legalization. Read this WND article about the controversy. In it, Rep. Cory Gardner (R-CO) is quoted as asking:

“Eric Holder has said that states cannot opt out of federal law, yet here he is doing the exact opposite. What is the administration’s guidance on when a state can assert 10th amendment freedoms and when they can’t?”

This issue is on its way to the courts, and Colorado is in the hot seat. Colorado is being sued by neighboring states over the legalization. SCOTUSblog has a primer on the litigation here. Colorado is now also being sued by residents of the state. Read this article for a quick background on the issue.

Paper Topic #16: What does this conflict–and the DOJ’s apparent capitulation on marijuana laws–say about federalism today, especially in light of the recreational use legalization laws in Washington and Colorado? How will Colorado fare in the litigation instigated by Nebraska and Oklahoma?

Suggested Reading: Renehan, A. (2014). Clearing the Haze Surrounding State Medical Marijuana Laws: A Preemption Analysis and Proposed Solutions. Hous. J. Health L. & Pol’y14, 299-299.

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