Marijuana

Even the Supreme Court's Super-Elastic Commerce Clause Cannot Force States to Ban Marijuana

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Jacob Sullum

After Oklahoma and Nebraska asked the Supreme Court to reverse the legalization of marijuana in Colorado, several commentators, including Jonathan Adler, Ilya Somin, and Randy Barnett at The Volokh Conspiracy, accused conservatives who support the lawsuit of "fair-weather federalism." Responding to that charge in The Wall Street Journal, David Rivkin, a lawyer who served in the Reagan and George H.W. Bush administrations, and Elizabeth Price Foley, a professor of constitutional law at Florida International University, argue that "there is no federalism defense to Colorado's law, unless one believes that Congress's power to regulate interstate commerce doesn't include the power to regulate the buying and selling of marijuana."

By "regulate," of course, Rivkin and Foley mean "ban," and it is important to keep in mind that alcohol prohibitionists went to a great deal of trouble to amend the Constitution back in 1919 because they took it for granted that Congress's power to regulate interstate commerce did not include the power to ban intoxicants. The Commerce Clause has not changed since then, but the Supreme Court's understanding of it has, to the point that it can be stretched to accommodate almost any congressional whim. Consistent federalists and sincere constitutionalists should resist this super-elastic reading of the Commerce Clause, but instead Rivkin and Foley latch onto to it as an excuse to squash a policy experiment they do not like.

In particular, Rivkin and Foley cite Gonzales v. Raich, the 2005 case in which the Supreme Court said the Commerce Clause gives the federal government the authority to prosecute people for growing and possessing marijuana, even if it is for their own medical use and they are permitted to do so under state law. According to Raich, the power to "regulate commerce…among the several states" encompasses the tiniest speck of marijuana in a cancer patient's bedstand, even if she grew it at home and it never left her property, let alone the state. As Justice Clarence Thomas noted in his dissent,  "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

Even so, Raich cannot do the work that Rivkin and Price (along with Oklahoma and Nebraska) want it to do, as Barnett, the Georgetown law professor who litigated the case, points out. To say that the federal government can enforce its own ban on marijuana even in states that have legalized it for medical or recreational use is not the same as saying the federal government can conscript states in that effort. As Rivkin and Price concede, "states cannot be required to enforce federal law." Nor can they be required to mimic federal law. Whether to treat the cultivation, possession, and distribution of marijuana as crimes under Colorado law is entirely Colorado's decision. So to the extent that Amendment 64, Colorado's legalization initiative, merely eliminated state and local penalties for certain marijuana-related activities, it is perfectly consistent with the congressional authority upheld in Raich.

Arguably that is all Amendment 64 did. Even the regulatory system it created is, in essence, a set of conditions under which Colorado's criminal penalties do not apply. The taxes that Colorado receives from the newly legal marijuana industry may be the most legally vulnerable part of the scheme, since they are forfeitable under federal law and may even implicate the state (or the bank handling its revenue) in money laundering. But Oklahoma and Nebraska do not make that argument, and they probably are not eager to make Colorado marijuana cheaper by eliminating the taxes. In any case, Rivkin and Foley's argument seems to be that Colorado is violating the Controlled Substances Act merely by allowing—i.e., declining to punish—actions that statute proscribes. This they describe as "a full-scale defiance of the CSA" and therefore a violation of the Supremacy Clause. 

Vanderbilt University law professor Robert Mikos notes that the CSA itself expressly limits pre-emption to situations where there is "a positive conflict" between state and federal law "so that the two cannot consistently stand together." He explains that "a positive conflict would seem to arise anytime a state engages in, or requires others to engage in, conduct or inaction that violates the CSA." If state officials grew medical marijuana or distributed it to patients, for example, they would be violating the CSA, and the law establishing that program would be pre-empted. But specifying the criteria for exemption from state penalties does not require anyone to violate the CSA. Mikos concludes that Congress "has left [states] free to regulate marijuana, so long as their regulations do not positively conflict with the CSA."

As Barnett notes, Rivkin and Foley's real beef is not with Colorado's marijuana regulations but with the Obama administration's policy of prosecutorial forbearance for state-licensed cannabusinesses that do not implicate "federal law enforcement priorities." That policy, they say, is "so warping the rule of law that the complaining states' reliance on Raich is justified and necessary." But even if you accept the highly debatable argument that declining to prosecute certain violators of the CSA represents a failure to "take care that the laws be faithfully executed," Obama's alleged neglect of his duties cannot make Raich say something it doesn't. 

NEXT: Eric Posner on the rationality of opposition to surge pricing [updated with a rejoinder to Posner's reply to this post]

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  1. “there is no federalism defense to Colorado’s law, unless one believes that Congress’s power to regulate interstate commerce doesn’t include the power to regulate the buying and selling of marijuana.”

    Huh. That’s exactly what I believe. And I’m right.

    1. One (me) believes that Interstate Commerce doesn’t include Intrastate Commerce.

      1. You obviously don’t understand legal reasoning. If the Nagul dictate Intra=Tnter, then it does. Take your logic and walk. These are the greatest legal minds EVAH!!!!

        1. Intra=Inter*

    2. Even if you don’t believe that, the statement makes no sense. Federalism absolutely does mean that the feds can’t force a state to have any particular laws, even if you think that the federal government does have the power to ban drugs that haven’t actually crossed state lines.

      Now, if a state passed a law forbidding federal enforcement of drug laws, they might have a point, but that hasn’t happened (though I’d kind of like to see that. Watching state police arresting DEA agents would be the coolest thing ever).

      1. It would be like Super Troopers. In other words, awesome.

        1. Another on the long list of movies that everyone else has seen, but I have not.

      2. Something similar has happened in the distant past. Slave catchers and even US Marshals were arrested for kidnapping in some northern states.

  2. Elizabeth Price Foley? The same one who wrote the Tea Party book? Speaking of fair-weather Federalism…

  3. “Even the Supreme Court’s Super-Elastic Commerce Clause Cannot Force States to Ban Marijuana”

    If it is up to SCOTUS to decide it, I would want good odds before taking that bet.

    1. If the commerce clause gives the federal government the power to stop one man from growing wheat on his own land for personal use, why would it not give then the power to stop people from growing pot?

      1. The feds banning it is not the same thing as the feds forcing a state to ban it.

        1. I was just about to write the same thing.

      2. why would it not give then the power to stop people from growing pot?

        It does according to current precedent. The feds can stop people from growing pot. They just can’t make state governments do it for them. That is a completely different issue from forcing a state to have certain criminal laws. And would be completely unprecedented.

      3. “Everything not compulsory is forbidden.”

  4. Now, let’s not bring the 18th Amendment into the federal prohibition on recreational drug use.

    1. Or any of that pesky Constitution/Bill of Rights stuff.

  5. By “regulate,” of course, Rivkin and Foley mean “ban,”

    Banning is regulating. Far more so than radio waves and electrical transmissions are speech, so be careful how restrictively you want to interpret constitutional wording.

    and it is important to keep in mind that alcohol prohibitionists went to a great deal of trouble to amend the Constitution back in 1919 because they took it for granted that Congress’s power to regulate interstate commerce did not include the power to ban intoxicants.

    This is quoted all the time but does not necessarily follow. Another purpose of passing a constitutional amendment rather than an ordinary law is to make it harder to repeal.

    1. It doesn’t necessarily follow, but it is clearly the case.

      Tulpa?

      1. Yeah, that one gave it away.

      2. How is it “clearly the case” if it doesn’t follow? Prohibition would have ended a lot earlier if all it took was repealing a law.

        1. Because we know more about history than simply the fact that prohibition lasted for a certain amount of time and was enabled by a constitutional amendment.

  6. TBH I’m surprised Congress hasn’t tried the highway-funding extortion that they used in the 1980s to force states to raise drinking ages.

    1. They do. Police get a bounty for drug arrests.

  7. Actually there is historical precedent for a federal law that required state and local LEOs to help enforce it, under extreme penalties for noncooperation. And that federal law was explicitly authorized in Article IV Section 2 by those freedom and liberty-loving Founders, sorry for the blasphemy, Constitution-worshippers.

    1. Definitely tulpa. Drop the sock, asshole.

    2. Definitely tulpa. Drop the sock, asshole.

      1. Says the sockpuppet. What perfect hypocrisy.

    3. Explain how it’s authorized Tulpa.

  8. The taxes that Colorado receives from the newly legal marijuana industry may be the most legally vulnerable part of the scheme, since they are forfeitable under federal law and may even implicate the state (or the bank handling its revenue) in money laundering.

    Isn’t there a place on certain IRS forms to declare income from illegal drug sales for the purpose of taxing that illicit income? I guess the federal government is engaged in money laundering then.

    1. But Oklahoma and Nebraska do not make that argument, and they probably are not eager to make Colorado marijuana cheaper by eliminating the taxes.

      And at that point, I’m sure Colorado’s social experiment would end.

      1. Isn’t that the situation in DC right now?

      2. Doubt it. Too far gone. Legalization is a political winner.

  9. So what this article is saying is that NE and KS should sue Obama for not faithfully executing that law. But would NE and KS have standing? I guess they’d have to show some kind of harm done to them, which would be dubious if not interesting.

    1. It’s also kind of hard to maintain the pretense that marijuana is some horrible dangerous threat when it is now legal in some places and clearly is not a huge problem. The only damages NE and KS can claim is that it makes it slightly harder for them to enforce their drug laws. But even that is pretty thin; I’m sure people in those states could get pot when they wanted even before CO legalized.

    2. It just means that they are too lazy and incompetent to do their own job.

  10. Even the Supreme Court’s Super-Elastic Commerce Clause Cannot Force States to Ban MarijuanaEven the Supreme Court’s Super-Elastic Commerce Clause Cannot Force States to Ban Marijuana

    No, but in a just world, the commerce clause might allow the feds to force mj-illegal states to legalize it, seeing that the historic purpose of the CC was to maintain a free-trade zone amongst the several states.

    1. seeing that the historic purpose of the CC was to maintain a free-trade zone amongst the several states.

      Which is why it says the opposite of that, I suppose?

      States were explicitly forbidden from enacting tariffs in Article I, Section 10, so I’m not sure why they would add a very convoluted restatement of that in the form of the commerce clause. Well unless they were getting paid by the word or something.

      1. Tariffs are the only thing that can restrain trade?

        1. They are the main thing that does in practice. The commerce clause’s only relation to a “free trade zone” is via the so-called Dormant Commerce Clause, which is not justified by the text of the Constitution and was invented out of whole cloth by the judiciary.

          In the same article Congress gets the power to coin money and build a navy for instance; while states are explicitly forbidden from doing same. Thus, it’s clear that granting a power to Congress did not automatically forbid the same power to the states.

          1. Main != only. And citation needed.

            1. Where did I say it was only.

              Explain what part of Congress regulating commerce among the several states creates a free trade zone.

              1. These provisions deny Congress the same degree of regulatory power over domestic commerce that it has over commerce with foreign nations. And they provide circumstantial textual evidence that the domestic portion of the Commerce Clause lacked the prohibitory aspect that was included in the power to regulate commerce with foreign nations and was instead intended to eliminate and prevent any state-imposed barriers to trade between the states

                […]

                Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.

                http://www.bu.edu/rbarnett/Original.htm#CONCLU

                1. Cool, I can link to a bunch of other law professors’ opinions that contradict what he says.

                  The question none of you (including Barnett) can seem to answer is why the writer of the Commerce Clause didn’t just write that there would be free trade across state lines if that was supposed to be the intent.

                  1. We don’t have links to their brain-stems through time, therefore Tulpa must be right!

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  12. What I think is scary is that since SCOTUS is not bound by logic, facts, or the Constitution, they could very well impose upon Colorado a duty to make weed illegal. Hell, they only have to “reasonably believe” they are getting the law right anyway. If Roberts can pull the penaltax out of his ass, he can pull something squalid example what goes for logic with those cocksuckers and make it so.

    1. I think that’s too much of a stretch even for Roberts. That would mean compelling states to have specific laws on the books and the court tends to defer to legislators. And what are they going to do? Hold a gun to the head of enough state legislators to get the laws passed?
      Even at their most activisty, the Court really only strikes down laws or declines to strike them down. I don’t think there is any precedent at all for them making up criminal laws from whole cloth. I could see them possibly striking down the parts of the laws where the states tax and regulate, but somehow I don’t think that is terribly likely.

      1. That would mean compelling states to have specific laws on the books That would mean compelling states to have specific laws on the books

        Why so specific/complex? Why not say that the states much adhere with existing Federal Law in this area?

      2. I think that’s too much of a stretch even for Roberts.

        I think he could.

        The difference is that he would not have the left side of the bench to cover him.

        It is simply a matter of votes not logic that holds him back. Both The Federalist right and the left would all vote against him though for different reasons.

  13. alcohol prohibitionists went to a great deal of trouble to amend the Constitution back in 1919 because they took it for granted that Congress’s power to regulate interstate commerce did not include the power to ban intoxicants.

    What is weird is that it was still sort of legal. You could brew or distill your own is my understanding. So it was a regulation not even a full ban.

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