Is Proposition 19 Unconstitutional?

Nine former DEA administrators are urging the Obama administration to challenge Proposition 19, California's marijuana legalization inititiative, if voters approve it in November. They argue that state legalization of marijuana would violate the Constitution's Supremacy Clause, which says "this Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land." Since Prop. 19 conflicts with the federal Controlled Substances Act, they say, it is unconstitutional. "The Justice Department invoked the Supremacy Clause in the State of Arizona," says former DEA Administrator Peter Bensinger, "and in that case the laws weren't even in direct conflict."

Bensinger is talking about the Obama administration's challenge to the Arizona law that requires police to check the immigration status of people they encounter in the course of their work and establishes state penalties for immigration-related offenses such as failure to carry a green card. But while controlling the nation's borders is clearly a federal concern, controlling the intrastate production, distribution, and consumption of marijuana is not. Even allowing for the Commerce Clause casuistry that has blessed such invasions of local territory, Bensinger et al. are wrong in suggesting that states must criminalize any commodity that offends Congress. During alcohol prohibition—which, unlike drug prohibition, was rendered constitutional through the old-fashioned method of amending the Constitution—some states adopted their own drink-suppressing measures but did not necessarily enforce them, while others declined to approve local versions of the Volstead Act or ultimately repealed them. Bruce Fein, who served in the Justice Department during the Reagan administration and now serves on the advisory board of the pro-legalization group Just Say Now, explains:

Nothing in the Constitution requires a state to prohibit as a matter of state law and prosecution what the federal government has chosen to prohibit as a matter of federal law and prosecution. Proposition 19 leaves the power of the federal government to enforce federal prohibitions on marijuana trafficking or use unimpaired.

The DEA, of course, won't have the resources to arrest all the pot growers, sellers, and users in California, or even a substantial portion of them. But that does not mean it can conscript state law enforcement agencies to do its dirty work.

In January, when Los Angeles Times editorialists were making the same argument about state pot legalization that Bensinger et al. are raising now, Drug Policy Alliance attorney Tamar Todd set them straight.