Will Medical Marijuana Be the Next Exception to Rick Perry's Federalism?


While researching this week's column, which highlights Texas Gov. Rick Perry's inconsistent federalism, I came across a November 2010 Daily Show interview in which he allowed that if "you want to go somewhere where you can smoke medicinal weed, then you ought to be able to do that." Then I dipped into the Republican presidential contender's 2010 book Fed Up!: Our Fight to Save America From Washington, where I found some interesting passages about marijuana and the 10th Amendment (emphasis added):

Crucial to understanding federalism in modern-day America is the concept of mobility, or "the ability to vote with your feet." If you don't support the death penalty and citizens packing a pistol, don't come to Texas. If you don't like medicinal marijuana and gay marriage, don't move to California….

In the 1990s, there was a brief, glorious retreat from the previous 60 years of the [Supreme] Court's allowing unfettered discretion by the federal government to legislate anything it wanted under [the Commerce Clause]. The Court, for example, found that a handful of activities were simply too far removed from commerce to be federally regulated, such as gun [possession] near schools and the battering of women. The Court also found unconstitutional the federal government's "compel[led] enlistment of state employees in carrying out federal policies, one of the more powerful antistatist doctrines now available. But the trend was short-lived. The Court subsequently ruled that Congress, using its Commerce Clause power, could prevent California from legalizing medicinal marijuana. In other words, the federal government has the full prerogative to intervene in your private home if you are engaged in any activity that has some minimal relationship to the exchange of goods….

When the federal government oversteps its authority, states should tell Washington they will not be complicit in enforcing laws with which they do not agree. Again, the best example is an issue I don't even agree with—the partial legalization of marijuana. Californians clearly want some level of legalized marijuana, be it for medicinal use or otherwise. The federal government is telling them they cannot. But states are not bound to enforce federal law, and the federal government cannot commandeer state resources and require them to enforce it. So good luck to the federal government if it wants to enforce every law on its books without the help of state and local law enforcement. When the federal government oversteps its bounds, states should think hard about whether a single state resource should be committed to carry out the intrusive policy in question.

Perry's gloss on Gonzales v. Raich, the 2005 medical marijuana decision, is a bit misleading. The Supreme Court did not say California could not legalize the cultivation and possession of marijuana for medical purposes—i.e., make exceptions to its own criminal penalties. The Court said federal penalties remain in force regardless of what California does, so the DEA and the Justice Department have the authority to pursue medical marijuana suppliers and users even when they are complying with state law. Still, Perry is rightly outraged by the absurdly broad reading of the Commerce Clause underlying Raich, and he supports state resistance to federal laws that overstep Congress' constitutional authority.

Or at least he did. As I note in my column, Perry has sought to solidify his position as "unapologetic social conservative" by repudiating his formerly federalist approaches to marriage and abortion, so marijuana could be next.

Mike Riggs and Steve Chapman comment on the gay-marriage exception to Perry's 10th Amendment devotion here and here. State resistance to federal drug policy is a major theme of Reason's October cover story, in which I explain how Barack Obama disappointed critics of the war on drugs. (It's a pretty long story.)