Drug War

Unbanned in Phoenix

States can't call off the war on drugs, but they don't have to fight it.


On May 27 Arizona Gov. Jan Brewer asked a federal judge to decide whether her state's Medical Marijuana Act, narrowly approved by voters last November, "complies with federal law" or is "preempted in whole or in part because of an irreconcilable conflict with federal law." Oddly, Brewer expressed no preference between those two diametrically opposed choices, which reinforced the impression that her suit was a veiled attempt to overturn Arizona's law without antagonizing its supporters.

Whatever her motives, Brewer, who opposed the initiative before the election, raised questions that have important implications for the future of federalism in America, especially in the area of drug policy, where almost all of the encouraging action is happening at the state level. But the outcome she seemed to prefer—nullification of the Arizona Medical Marijuana Act by the federal Controlled Substances Act—would be a severe blow to state autonomy, a constitutional principle she zealously defends in other contexts.

As a legal matter, it's clear the Justice Department can prosecute state-licensed suppliers of medical marijuana if it wants to; it can even go after the patients and caregivers that it says need not fear federal charges. In the 2001 case U.S. v. Oakland Cannabis Buyers' Cooperative, the U.S. Supreme Court ruled that federal law does not recognize a medical necessity defense against prosecution under the Controlled Substances Act, which bans marijuana for all purposes. Four years later, in Gonzales v. Raich, the Court said the federal government's power to "regulate commerce…among the several states" extends to the tiniest speck of marijuana wherever it may be found, even in the home of a woman who grows it for her own medical use in compliance with state law.

Based on this absolute federal ban, drug warriors claim state laws allowing marijuana use, whether for medical or recreational purposes, violate the 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." The nation's experience with alcohol prohibition refutes this argument. Even under a prohibition system that, unlike the current one, was explicitly authorized by the Constitution (via the 18th Amendment), states had no obligation to ban what Congress banned or to punish what Congress punished. In fact, state and local resistance to alcohol prohibition led the way to national repeal.

From the beginning, alcohol prohibition was resented in America's wetter provinces, where the authorities often declined to enforce it. Maryland never passed its own version of the Volstead Act, while New York repealed its alcohol prohibition law in 1923. Eleven other states eliminated their statutes by referendum in November 1932, months before Congress presented the 21st Amendment (which repealed the 18th) and more than a year before it was ratified.

In the 1996 case Printz v. United States, which overturned provisions of the Brady Handgun Violence Prevention Act that commanded local law enforcement officials to do background checks on gun buyers, the Supreme Court reaffirmed that "even where Congress has the authority…to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts." Hence the federal government cannot require states to establish and enforce their own penalties for marijuana cultivation, distribution, and possession, let alone insist that they allow no exceptions.

Although Brewer claimed to be worried that the federal government could prosecute state employees for licensing and regulating dispensaries under the Arizona Medical Marijuana Act, Dennis Burke, the U.S. attorney for Arizona, said he had "no intention" of doing that. In any case, all state regulators would be doing is determining who qualifies for a medical exemption from state drug penalties. As the American Civil Liberties Union noted in a motion seeking dismissal of Brewer's suit, performing that function does not conflict with the Controlled Substances Act or prevent the federal government from enforcing it.

The ACLU argues that there are no plausible grounds for charging state employees with a federal crime, since licensing and regulating dispensaries do not involve growing or distributing marijuana and do not meet the intent and knowledge requirements for convicting someone of conspiracy, aiding and abetting, acting as an accessory, or money laundering. The group adds that regulators could not be prosecuted simply for failing to rat out licensees to the feds, since "respecting confidentiality does not constitute an affirmative act," which is required to convict someone of concealing a felony.

In short, although the Supreme Court says states cannot carve out exceptions to the Controlled Substances Act, that does not mean they cannot carve out exceptions to their own drug laws (or repeal them entirely). Under the Court's absurdly broad reading of the Commerce Clause, Congress can decide to treat just about anything as a crime. But states are still free to disagree.  

Senior Editor Jacob Sullum is the author of Saying Yes: In Defense of Drug Use (Tarcher Penguin).

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  1. On May 27 Arizona Gov. Jan Brewer asked a federal judge to decide whether her state’s Medical Marijuana Act, narrowly approved by voters last November, “complies with federal law” or is “preempted in whole or in part because of an irreconcilable conflict with federal law.”

    And who said that principles mattered in politics? Bah, humbug!

  2. Consent of the governed, indeed.

  3. Although Brewer claimed to be worried that the federal government could prosecute state employees for licensing and regulating dispensaries under the Arizona Medical Marijuana Act, Dennis Burke, the U.S. attorney for Arizona, said he had “no intention” of doing that.

    So what? Why should we trust the US attorney for Arizona not to pull an Eric Holder and raid the very offices he promised not to raid?

    1. Even then, to be overridden by someone higher in the food chain, or to have him replaced?

  4. anyone else feel that the drug war dies with old cunts like her?

    1. I’m sure hippies said the same thing 40 years ago.

      1. and many of those hippies became the very drug warriors (or at least enablers of same) we see today

        1. no they didn’t

          1. Proof?

            Oh, wait, sorry for a minute there I thought you might actually know something about the subject, then I saw that I was asking an imbecile.

    2. Nope. Plenty of second and third generation scolds. Or the people who will agree it’s not really harmful, but we have to keep it banned for the children. I live around those types.


        1. You can go to prison for that.

  5. Ironic that Brewer now want to defer to the Feds…

  6. Brewer is such a fuckstick — admittedly, not as much of one as Napolitano, but it doesn’t take much to trip over that particular bar. Brewer *always* passes the buck; it’s what she’s always done, and what she’ll continue to do.

    Take SB1070. Brewer had nothing to do with the bill, and no one in the state knew whether or not she would sign it until the moment that it crossed her desk. Since that point she’s been reading the lines she’s been given with aplomb, but rest assured that the position she took is far from a controversial one in AZ.

    The budget battle really illustrates what a useless tool she is: she’s completely abdicated any sort of responsibility in that area, and just sort of mumbled something about raising taxes and making sure that education is funded. Some of the freshmen legislators are actually trying to cut something in the bloated budget; I guess we’ll see whether or not Brewer finds it in herself to sign whatever comes out of the legislature.

    Garnering controversy isn’t in Brewer’s blood, and that passive-aggressive letter is exactly what she is, and always has been, all about.

  7. Funny how she never asked the federal government about that Nazi immigration act her state passed.

    This is (one of) the problems with conservatives. Federalism is only applied when they want it applied.

    1. That’s the problem with anyone. Any ism is applied only when they want it.

      The problem with people is that they want only what they want.

    2. right. an act that gives arizona police far less power to question and regulate illegals than such obvious nazi strongholds as … say Belgium. or Mexico

      nazis! they’re everywhere!

  8. Has anyone explained to me yet why drug reformers would not welcome a declaratory judgment on this issue, since it will surely go favorably and be a great publicity shot in the arm?

  9. “States can’t call off the war on drugs, but they don’t have to fight it.”

    Yes, they can — tell the federal behemoth to go fuck itself and secede. Or pass laws declaring it a heinous crime for federales to enforce drug laws, and ignore federal courts when they try to nullify. Something, for fuck’s sake.

    1. i’d like to see ONE governor (god knows liberal democrat in WA gregoire won’t do it, but rolled over for the feds like the compliant wrinkled lap dog she is) just ONE say…


    2. No one’s going to secede, the myth of one nation, rather a union of nations has set in too far.

      1. I hope you’re wrong, but I fear you may not be.

        1. Len’s analysis is entirely correct.

    3. Rick Perry for President of the United States. All of them except Texas. When the Lone Star State secedes he will let his people go. It was his idea after all.

  10. Any state that wants to can opt out of the war on drugs. Repeal whatever of their own laws they want, and instruct their own LEOs not to cooperate with the DEA.

    Constitutionally bullet-proof.

    The fed response, of course, will be to tie their highway funding to “maintenance of effort” on the drug war or somesuch. That response should catch its own Constitutional challenge, and one with a fair chance of success.

    1. I keep hoping that someday we’ll elect a governor somewhere with enough balls who will do just that.

    2. Actually, the Feds have very limited control over highway funding. They can only cut off money over issues DIRECTLY related to highway safety, condition, etc., because the Interstate highway system enabling legislation was passed under “military necessity” rather than as a civil program.

      1. Actually, you’ve seen the Commerce Clause currently being bastardized right?

        And you’re actually stupid enough to pretend that arbitrary limits such as “highway safety” (which is all the excuse they need, in case you’re too fucking dumb to realize) are sufficient to prevent Federal intrusion?

        You’re really THAT fucking stupid?

        1. No, if I was THAT fucking stupid, I would have to be YOU, and that job was already filled by a lowlife.

          Have a nice day.

      2. They’ve used the threat of cutting off highway funds to dictate state alcohol laws (21 year-old drinking age). Why not drug laws too?

        1. Reagan did this by the way… just in case anyone is still under the delusion, that only Democrats are assholes..

  11. Yup, the third time AZ politicians tried to say “fuck you” to the people they supposedly represent.

  12. You guys don’t get it. The issue isn’t drugs, the issue is whether states are required to enforce Federal law.

    Brewer has just handed the Feds a no-win situation.

    If they say that Arizona MUST enforce dope laws, then they lose any ability to say that they may NOT enforce immigration law. If the answer is that AZ is not required to enforce Federal law, then states’ rights have been given a major boost. AZ is a strongly pro-gun-owners’-rights state, and the folks there can be counted on to pass initiatives limiting the power of local cops to enforce Federal gun laws.

    By bundling immigration and dope law together, Brewer has called their bluff and raised the stakes, and EITHER way we win and the Feds lose. She doesn’t say which way she wants it to go because she wants there to be no way for the Feds to point at her as attempting to influence the decision.

    1. “You guys don’t get it. The issue isn’t drugs, the issue is whether states are required to enforce Federal law.”

      NO, asshole pretty much everyone here gets that. You;re not witty, or insightful, or in any way contributing to the conversation.

      1. Nobody else was mentioning it, and most of the comments showed clearly that they DIDN’T get it (kind of like the way you didn’t get much brain when they were handing them out).

        Have a nice day.

  13. Before the fraud of the Global War On Terror was the fraud of the Drug War.

  14. The War on Drugs failed $1 Trillion ago! This money could have been used for outreach programs to clean up the bad end of drug abuse by providing free HIV testing, free rehab, and clean needles. Harmless drugs like marijuana could be legalized to help boost our damaged economy. Cannabis can provide hemp for countless natural recourses and the tax revenue from sales alone would pull every state in our country out of the red! Vote Teapot, PASS IT, and legalize it. Voice you opinion with the movement and read more on my artist’s blog at http://dregstudiosart.blogspot…..-2011.html

  15. OK, I smoke weed, kill me. I have it in my house and I buy it from people that are just like anyone else. They are lawyers, bankers, realtors, etc.. the country is wasting time and money legalize and move on.

  16. who opposed the initiative before the election, raised questions

  17. Thanks for post. s?ve, mantolama fiyatlar?, ?s? yal?t?m?
    | mantolama | | s?ve modelleri |

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