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


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.