Drug War

Do States Need Federal Permission to Change Their Drug Laws?

|

Drug Policy Alliance attorney Tamar Todd refutes a Los Angeles Times editorial's claim that California "does not have the authority" to legalize marijuana, as a bill approved this week by the state Assembly's Public Safety Committee would do:

The Times is simply wrong to suggest that California does not have the authority to tax and regulate marijuana. There is nothing in the U.S. Constitution that requires states to criminalize anything. We could scrap our entire penal code tomorrow if we wanted to. States get to decide state law, not Washington. This is why California and 13 other states have been able to legalize and regulate medical marijuana despite continuing federal prohibition.

Certainly, even if AB 390 becomes law, the federal government could still enforce its marijuana laws against California residents. The reality is, however, the federal government does not have the resources to undertake sole—or even primary—enforcement responsibility for state drug crimes. More than 95% of all marijuana arrests in this country are made by state and local law enforcement agencies.

Based on an absurdly broad reading of the authority to regulate interstate commerce, the Supreme Court has said the federal government can continue to enforce marijuana prohibition in states that have legalized medical use of the plant, even to the point of prosecuting patients for growing or possessing their own medicine. But the Court has never said the federal government can compel states to help it enforce marijuana prohibition, or that the Constitution requires them to adopt and maintain laws consistent with federal policy. And given the law enforcement reality that Todd notes, federal agencies would not be able to override a state's decision to legalize marijuana, although they certainly could make some trouble. The ensuing conflict would be instructive and could ultimately lead to a greater respect for federalism than the Supreme Court has displayed in recent years.

NEXT: Public Health vs. Free Speech

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Do States Need Federal Permission to Change Their Drug Laws?

    No.

  2. Drug Policy Alliance attorney Tamar Todd refutes a Los Angeles Times editorial’s claim that California “does not have the authority” to legalize marijuana[…]:

    The Times is simply wrong to suggest that California does not have the authority to tax and regulate marijuana. There is nothing in the U.S. Constitution that requires states to criminalize anything.

    Counselor, you don’t understand – the LA Times could not care LESS about State’s rights, the 9th and 10th Amendment, state sovereignty – its staff is so enamoured of the Omnipotent State that it can only consider as legit and acceptable whatever the Fed Gov does.

  3. I don’t think California can stop the feds from arresting people for marijuana possession. But, I don’t see how they are under any obligation to either enforce federal law or make their law match up with the federal code. For example, I doubt insider trading is illegal under many state laws. Any state is free to chose not to enforce a ban even thought the feds have chosen to do so.

    1. Are states obligated to allow Federal agencies to use their facilities? Jails, courts, etc.?

      I imagine that part of the decision to legalize is based on the strain that the War on Drugs puts on the legal system. So if the Feds want to dump their drug busts into CA facilities, I wonder what the chances are of the state telling the Feds to take their potheads and cram them.

      1. State are not obliged to take federal prisoners. When they do, they get paid handsomely for it. And states do turn down the feds when they are overcrowded.

        1. If CA legalizes MJ, then the feds will pass a bill stripping tens or even hundreds of million dollars of funding from CA until they relent. watch going the distance online | watch the switch online

      2. I would say that it would violate the 3rd Amendment, but since we’re at war (until Terror signs a peace treaty at least) that doesn’t matter.

  4. And the feds can’t make the states set the speed limit to 55; or force the states to make people wait seatbelts; or alter the drinking age; or a bunch of other things . . . .

    If CA legalizes MJ, then the feds will pass a bill stripping tens or even hundreds of million dollars of funding from CA until they relent.

    1. If it wasn’t for the fiscal crisis, I would agree, kinnath.

      But as it is, the feds are more likely to give CA a few billion than withhold it.

      1. They will “offer” a billion or two to help with the crunch in CA. This money will have many, many strings attached to it.

        1. At which point the Dems of the state might just oppose such, while the absolutely spineless Repubs grovel at the federal teat.

    2. I am betting on the revenue generated by mary jane lovers. As soon as Californians realize they can collect mucho denaro and piss it away on entitlement programs and fighting global warming, it’ll be there to stay. Besides, Big O has pledged to stay out of it. He promised, and shit!

      1. If drugs are legalized, it will be for pragmatic reasons — revenue generation for the state. It will never be because it is merely the proper thing to do.

        I wish the advocates of legalization well, but I don’t think it will be enough push the matter over the tipping point yet.

    3. While the threat of federal funding losses is certainly real and one of the sleazy ways the bloated federal government gets its way, keep in mind that California is a bastion of blue electoral votes. Our currently blue federal government would not want to risk losing anything in that state at this juncture. To me it seems like the time for this reform is now.

      1. It’s not clear that the votes to penalize California could be found in the House. Would the Republicans vote States’ rights over Prohibition? Figure the California delegation and most of the Prog caucus against.

  5. SCOTUS has in fact said exactly the opposite: the feds can’t compel the state and local gov’t to help it enforce its laws (see the Printz case from the 90’s on the feds’ attempt to make state and local law enforcement conduct background checks to enforce the Brady bill).

  6. But the Court has never said the federal government can compel states to help it enforce marijuana prohibition, or that the Constitution requires them to adopt and maintain laws consistent with federal policy.

    Unfortunately, that’s only true for very limited definitions of “compel”. From an appeal’s court case on the use of federal highway fund withholding to coerce a national speed limit:

    The Supreme Court has clearly, and repeatedly, declared that “Congress may further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.” South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 2796, 97 L.Ed.2d 171 (1987) (quoting Fullilove v. Klutznick, 448 U.S. 448, 474, 100 S.Ct. 2758, 2772, 65 L.Ed.2d 902 (1980) (opinion of Burger, C.J.)).

    So what if Congress can’t actually throw state legislators in jail? They can still raise federal taxes as much as they like, then make the return of that tax money conditional on following their rules.

    And there’s no backlash. As far as the US public seems to be concerned, state governments are an anachronism, or at most a work-sharing scheme intended to give Congress more free time to focus on important issues like MLB steroid scandals.

  7. Since the dea and drug laws are unconsstitional, not to mention Cannabis was made unlawful for dispicable racist reasosns. then NO They dont need the feds permission to overturn unconst. laws

  8. What will prevent the federal government from now exercising one of its oldest tricks: withholding federal dollars from local law enforcement agencies that ignore federal laws?

    1. Nothing. But to do so would mean throwing California under the bus and watching America’s most liberal state go bankrupt. I don’t think the Dems will allow that to happen. My guess is that California will get away with stopping the state enforcement of marijuana.

      1. CA needs money. CA considers legalizing MJ to get taxes. The Feds offer money with the provisio that CA will not legalize MJ. Done deal.

        1. And set the precedent that all a state has to do to get he feds to pay up is threaten to legalize marijuana?

          I see what you are saying. But if California is serious, this is a real problem for the drug warriors.

          1. CA is not serious. No one in any position of authority is serious about reversing the drug war — penny wise and pound foolish.

          2. Prohibition ended because the FEDS needed they money they lost from alcohol taxes.

            The feds have their hands in many, many more pockets now. No one “needs” the tax revenue from legal drugs enough to buck the social nannies and the entrenched groups that profit from the drug war.

            1. Prohibition ended because it was wildly unpopular. The drug war will end to the day it becomes really unpopular. Libertarians don’t like to admit it, but most people support the drug war. They are wrong in doing so. But they support it nonetheless.

              1. No it was about taxes.

                The alcohol tax was a major component of the federal budget and there was no replacement for it when prohibition killed the golden goose.

                It is not a coincidence that prohibition ended early in the depression. The US government really, really needed the money.

              2. That is actually incorrect. A recent survey showed that slightly more than 50% of Americans favor the legalization of marijuana. I can’t remember the source, but I think I posted it here a few months ago.

            2. And it’s no coincidence that CA is talking legalization and taxation while facing bankruptcy.

            3. https://reason.com/archives/200…..rohibition

              Reason, 2 years ago.

            4. I’ve heard it argued that Prohibition ended when they could no longer get convictions. People got tired of throwing there neighbors in jail and used jury nullification to simply stop doing it.

              1. Chris Wright of the Minnesota Grassroots Party researched the repeal of alcohol prohibition about 20 years ago. He discovered that in fact it was the need for revenue, during the Great Depression, which persuaded lawmakers to ditch liquor prohibition. Repeal wasn’t inspired by the crime; corruption; invasions of civil liberty; juvenile drinking; generalized disrespect for law; or other evil features of prohibition– but rather by the fact that legal commerce in booze could bring in some tax dollars. Jury acquittals of prohibition defendants did occur in some jurisdictions, but it wasn’t the primary cause for repeal. And some states DID repeal state prohibition statutes before repeal of the Federal 18th amendment.

        2. CA needs money. CA considers legalizing MJ to get taxes. The Feds offer money with the provisio that CA will not legalize MJ. Done deal.

          Not so fast. You can stop the state legislature from enacting their own marijuana policy using this tactic but you cant stop the voter initative process brought forth by the citizens of California. This will allow citizens to vote for legalization in 2010, already a done deal. If it is passsed then the politicians hands are tied.

    2. Nothing. That is likely the Fed’s next move. Obama doesn’t seem afraid to swing the big stick when he doesn’t get his way.

      1. Not a presidential power, and it’s not clear if the votes could be found in the House. I can’t see the California delegation voting to cut off funds to their home State government.

  9. The federal government is a creation of the states and thus, the states need to start exhorting thier individual sovereignty. Why not start here?

    1. Because Money (stimulus money) talks!

    2. *squawk* Are you serious? Are you serious? *squawk*

    3. F**k the state! They don’t have printing presses.

      1. State(s)

  10. Shorter LA Times

    ‘If we start taking the 10th admendment seriously, we will descend into Anarcho-Capitalist chaos. Los Angeles will become Mogadishu.

    1. You’re right – The LA Times speaks Chad-ese! Thanks for the translation.

    2. Yes because making marijuana a legitimate form of commerce versus the exclusive purview of MS 13 is clearly the way to chaos. Chaos I tell you.

  11. More than 95% of all marijuana arrests in this country are made by state and local law enforcement agencies.

    Like I said – Money Talks. Because how else can one explain a State stomps on the freedoms of its own citizens at the behest of a far away, central government, if not by overt bribery?

    1. It may start out as overt bribery, but, after people accept the loss of their freedom, they just think the state is doing “the right thing.”

      1. Indeed!

        “When the people find they can vote themselves money, that will herald the end of the republic.”

    2. The states don’t need to be bribed in order to enforce drug laws. They are more than happy to enforce drug laws because they can take people’s property.

      1. You r absolutely right. And remember they will bust down ur door without a search warrant as long as they have probable cause.. It’s bullshit!! Oh ya and point guns at u and threaten to shoot ur dog. It’s hypocritical they can have ur shit but u can’t.

  12. What about this scenario:

    Citing the need to control illegal interstate drug trafficking across state lines from California to the rest of the US, the federal government has passed legislation to nationalize California’s police force, citing that it satisfied the “necessary and proper” clause of the Constitution to be able to “regulate interstate commerce.”

    President Obama, signing the legislation on the White House lawn, said “California had left us no choice by legalizing a substance that has been prohibited by federal legislation. Since we cannot compel all of California’s jurisdictions to enforce our laws and we do not have the manpower at the federal level, the only necessary action we could take was to take direct control of the police forces. We promise that these national police will only enforce the nation’s drug laws and that we will repeal this legislation when the state of California repeals their marijuana legalization law.”

    “To address any Constitutional questions, we believe that Congress has the authority to run a police force because police functions ‘substantially affect interstate commerce’ and that taking over the police forces are a ‘necessary and proper’ action by the federal government because it is the only way to enforce drug laws that are constitutionally valid. Thank you and God Bless America.”

  13. I think the editorial board of the Wall Street Journal has seen the light. An anti-prohibition of alcohol column last week and a pro-legalization of pot column today. The drug war industry better hunker down, we’re coming at them from both sides now.

    1. To them, hunker down might mean something different. Like find a way to mandate drug screenings for everyone. Maybe via the new health care. Or increase drug raids.

    2. I didn’t see the pro-legalization WSJ column, do you have a link?

        1. From the WSJ piece:

          Many believe marijuana is a gateway drug?perhaps not so harmful in itself but one that leads to the use of more serious drugs. That is not borne out in practice, except that the illegal purchase of cannabis often exposes consumers to profit-minded dealers who push the hard stuff. In this way, the gateway argument is one in favor of decriminalization. If marijuana were purchased at liquor stores rather than on street corners where heroin and crack are also sold, there would likely be a decrease in the use of more serious drugs.

  14. To them, hunker down might mean something different. Like find a way to mandate drug screenings for everyone. Maybe via the new health care.

    One of the many, many ways that the increasing federalization of health care will suck very hard.

    1. Yeah, only one of very many.

  15. I’m glad to see them pointing this out. Along with several other commenters, I tried pointing out this obvious fallacy in the comments section of the LA Times piece. This is the sort of blatant factual error that should demand a public correction.

  16. I was just discussing something similar with some people on a forum. we were talking about how Mexico and the Czech Republic both recently legalized small amounts of personal possession of all drugs. a few people argued that it was decriminalization but I fail to see how it isn’t legalization, if small possession under the amounts permitted is not a criminal nor civil offense how is it not legal possession. they also argued that they couldn’t pass “legalization” laws as opposed to decriminalization laws because of their obligation to UN treaties. my take on it was that nothing would happen, no one is going to get sanctions placed on them or be invaded for violating a drug treaty, at least I really doubt it.

    1. and forgot to add that this article makes a great point how the states challenged the feds authority to meddle in state drug laws and won.

      1. ^… with medical marijuana. I don’t think the feds would win fighting recreational cannabis state law.

    2. The Single Convention signatories promised not to allow unlicensed manufacture or distribution, with the Treaty making no mention of an obligation to criminalize possession. The Dutch license coffee shops, and various other nations their hemp producers.

  17. Can we just legalize the stuff and move on? It’s time to end the hypocrisy, wake up and smell the truth. We’re wasting so much time, money and resources on this insanity that it is going to be our demise. All governments need to allow adults their human right to do whatever we want with our bodies. No man has the right to tell another what they can or cannot put inside their flesh.

    LEGALIZE IT and lets focus our tax dollars and energy on things that matter.

    1. “”We’re wasting so much time, money and resources on this insanity””

      The problem is, for some, it’s not waste. It supports the LEO industry. It gives them weapons, authority, and purpose. The latter means they will fight their last breath to prevent losing the first two.

      Legalization is not impossible, but the bar for critical mass to legalize is very, very, high. Because, as John said earlier, a portion of the citizenry doesn’t see it as a waste either. They support LEO effort.

      Legislatures usually have to be pressured to restore liberty, it’s just unnatural for them, they like to restrict and expand.

      1. Purpose generally applies to the hard core drug warriors, there are rank and file LEOs that would rather not enforce drug laws, but it is the law, and enforcing that law can help with their career.

        1. Can BE their career.

  18. after the whitewashing obama has given y’all in his first year, you still think there’s fairness and justice in the world? I applaud your tenacity. Check out the executive order obama signed monday, that creates the council of governors (10 of em), THAT WILL OVERSEE THE DEPLOYMENT OF NATIONAL GUARD ON US SOIL.. state rights are going to dissapear hard and fast apparently. Do your homework people, the food price hikes are only a few months away, and they know it. This cold snap in the southern US was the nail in the coffin (google HAARP)

  19. Tim, do you get Sirius on your fillings or just AM/FM?

    1. I know it sounds a bit Times-Square-Doomsday-ish, but at the same time….not entirely implausible.

      I just keep praying for an asteroid strike. I want it all to end, quickly.

  20. the entire drug war against people is sick and DELIBERATE.

    let us repeal our police state nixonian vengeful hippie hating 1970 controlled substance act.

    levitate the dea too.

  21. @hugh: do you always dispute fact with personal attacks? Or are you capable of an adult-like debate regarding the FACTS I’ve posted. I even gave you the gov link. Are you dumb, or afraid?

    1. tim, have you looked into chemtrails by chance?

  22. If the point being made that a state making some product or activity legal has no effect on whether or not the federal government will consider it legal inside the borders of that state. The question of whether the feds should consider it illegal or even have the authority to make it illegal in the first place is a different issue.

  23. With many new announcement about the wizard of oz movies in the news, you might want to consider starting to obtain Wizard of Oz books series either as collectible or investment at http://www.RareOzBooks.com.

  24. I even gave you the gov link.

  25. Thank you for your suggestion! We feel it very good and we are willing to accept it!

  26. Thank you for your suggestion! We feel it very good and we are willing to accept it!

  27. I think drug law should be one of the strict law.

  28. If anyone ever stuck by the idea to buy authentic gucci,come to us http://www.authenticguccibags.com.
    We set our Gucci store at Hong Kong, selling Authentic Gucci online now by a discounted price. As we all know,to buy fake Gucci is not only vulgar but also illegal, visit our store as we will teach you how to spot the fake Gucci,moreover, we’d like to offer chances to buy authentic gucci,gucci tote,gucci boston,gucci messenger,gucci hobo,gucci by gucci,gucci sukey in an affordable price, to extend our business to a larger scale.

  29. help, i want to buy authentic gucci, Thanks for sharing. i like gucci

Please to post comments

Comments are closed.