Marijuana Federalism: Uncle Sam and Mary Jane

A book released next month will explore the conflict between federal and state marijuana laws, and what to do about it.

Marijuana possession and distribution is illegal under federal law.  Nonetheless, a majority of states have legalized medical marijuana to some degree, and several more states have legalized marijuana possession and use for even recreational purposes. As a practical matter, this means individuals are able to possess and use marijuana without significant fear of prosecution throughout much of the United States. Yet the federal prohibition still influences business decisions related to marijuana as the specter of federal action remains.

Next month, the Brookings Institution will publish my new book, Marijuana Federalism: Uncle Sam and Mary Jane, an edited volume exploring the implications of the conflict between federal and state marijuana laws, and suggesting how the proper reforms could harness federalism to produce better marijuana policy.

As I explain in the introduction,  even though the Justice Department has not sought to preempt or displace state-level reforms, the federal prohibition casts a long shadow across state-level legalization efforts. This federal-state conflict presents multiple important and challenging policy questions that often get overlooked in policy debates over whether to legalize marijuana for medical or recreational purposes. Yet in a "compound republic" like the United States, this federal-state conflict is particularly important if one wishes to understand marijuana law and policy today.

The book's introduction, "Our Federalism on Drugs," is available on SSRN. The book itself may be ordered through Amazon.

Here's a listing of the other chapters:

1. Public Opinion and America's Experimentation with Cannabis Reform - John Hudak and Christine Stenglein

2. The Effect of State Marijuana Legalizations: An Update - Angela Dills, Sietse Goffard, and Jeffrey Miron

3. The Smoke Next Time: Nullification, Commandeering, and the Future of Marijuana Regulation - Ernest A. Young

4. Murphy's Mistake, and How to Fix It - Robert A. Mikos

5. Federal Nonenforcement: A Dubious Precedent - Zachary S. Price

6. Banks and the Marijuana Industry - Julie Andersen Hill

7. Legal Advice for Marijuana Business Entities - Cassandra Burke Robertson

8. The Contingent Federal Power to Regulate Marijuana - William Baude

 

Comments

[Brett Bellmore]

The real problem here is that there isn't any constitutional basis for federal drug laws outside DC and some other federal properties purchased with state permission.(Where the federal government is entitled to exercise the same powers as states.)

The early drug laws even acknowledged that, being written as outrageously high taxes rather than outright prohibitions. It wasn't until the mid-20th century that Congress finally had the gall to pretend they were entitled to ban things.

[Brett Bellmore]

My point here is that this sort of conflict between federal and state law is almost entirely a consequence of the federal government usurping powers it was never delegated. We do not have, constitutionally, a system of overlapping jurisdiction between the states and the federal government. The Tenth amendment reads,

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

There isn't supposed to be any overlap: If the federal government has jurisdiction over a topic, the states don't. If it doesn't, they do, unless otherwise prohibited.

We don't need marijuana federalism. We need marijuana the federal government butting out of things it has no jurisdiction over.

[Sarcastr0]

Commerce Clause jurisprudence isn't going to go away.

[Brett Bellmore]

If somebody comes to you complaining of a headache, you point out their problem is that they've driven a nail into their head, even if they ARE calling it a "piercing", and not willing to remove it.

There is no constitutional solution to a problem which is caused by refusing to follow the Constitution. If the only solution is off the table, the problem simply won't be solved.

At most, at very most, the conflict between federal and state law in the area of marijuana law might be resolved by the federal government choosing not to exercise its usurped power in this one area, while the conflict in numerous other areas continues.

Because the root cause is a wrong our political class want to expand, not cure.

[ReaderY]

Two points.

1. Even under a very traditional interpretation of interstate commerce, the federal government would still have power to ban genuinely interstate trafficking (another word for commerce) in marijuana. It just wouldn’t have power to ban intrastate possession or sale of locally grown marijuana.

2. There has always been potential for conflict between federal and state laws, even under a very narrow construction of interstate commerce. It has long been the case that state has potential power to do anything and state laws remain in force until preempted by Congress. This means states can always regulate many things the federal government could potentially regulate if it wanted to. The constitution simply doesn’t automatically nullify every state law in every subject the federal government could potentially legislate about. Overlap and occasional conflict between state and federal law are inherent elements of the constitution no matter how narrowly or conservatively federal power is construed.

[Brett Bellmore]

1. Granted, but if all the federal government was doing was banning interstate commerce in pot, it would as a practical matter be no big deal. Sure, it would still be causing problems, but it wouldn't be generating any serious conflicts with state law.

2. You seem to have a disagreement with the actual text of the Constitution here. I'm sure practice departed from that actual text in favor of states enacting laws in areas technically reserved for the federal government, without much pushback from the federal government if the topic was one they weren't much interested in anyway. But that's not quite the same as the state having a solid constitutional claim to be able to do so.

The potential for the sort of overlap you suggest is very limited as long as enumerated powers doctrine is being taken seriously. It's the abandonment of that doctrine which has led to massive overlaps of federal and state law.

[Krychek_2]

Brett, I have many disagreements with the text of the Constitution because I don't consider it holy writ. I consider it the work of fallible men who gave us a document that may have worked well in the 1790s but has long since outlived its usefulness. And which we are stuck with because they also made it damn near impossible to amend.

That said, I agree with you that the war on drugs is a bad thing and drug warriors are on the same moral plane pyramid schemers. But that doesn't mean that I can't envision a product that is so harmful that the feds would be within their rights to suppress it nationwide, whether intra- or inter-state, as they currently do with drugs. For example, the ingredients necessary to manufacture a nuclear weapon, or child pornography. I'm just fine with a flat federal ban on those things, even if it's all intra-state.

[Squirrelloid]

Why can't that just be a state power. Why does the federal government have to ban child pornography (for example) when it's already illegal at the state level?

The federal government does not have to address all harms. It's not supposed to do so. (Indeed, it wasn't given the power to do so).

[Krychek_2]

Because when the stakes are as high as they are with child sexual exploitation, and the damage done by child sexual exploitation is so great, you want to attack it with everything you've got and put it out of business to the greatest extent possible.

The feds have more resources than the states do, more experience dealing with stuff that does cross state lines, more experience dealing with international criminals, and a better ability to see the big picture across all fifty states. Probably very little child porn really and truly is completely intra-state, so to the extent that you do snare someone who is strictly a local actor, the damage to him and to federalism is significantly less than the damage if child pornographers are allowed to ply their trade.

Same with nuclear weapons. Suppose I discover plutonium ore on my property and decide to build a bomb with it. The potential level of harm that I'm going to do, either deliberately or through negligence, is large enough that the feds should not have to wait for me to cross a state line before they put a stop to it.

[Brett Bellmore]

Oh, I think the real reason isn't so much that the states couldn't do it, as that they might decide not to.

Whereas if you can do this stuff at the federal level, nobody is allowed to be a holdout.

But, still, you're making excuses for the government being permitted to break the highest law of the land. If the need for federal power in these areas is so obvious, amend the freaking Constitution, don't violate it.

Or are you maybe worried that you wouldn't have the votes?

[Krychek_2]

Brett, the framers in their wisdom gave us a Constitution that is almost impossible to amend, even with strong public support. The overwhelming majority of Americans simply don't subscribe to your brand of federalism, but they can't change it because it's cast in constitutional concrete.

So they, and their elected leaders, do what people always do when faced with an artificial barrier: They find end runs around it. They give it lip service while ignoring its spirit. Or, in some cases, they don't even pretend to play by rules that outlived their usefulness a century ago.

If you want an honest system, then change the amendment process so that the majority can get what it wants. (Oh wait, that, too, would require getting the practical impossibility of amending the Constitution.) Otherwise, get used to the majority doing end runs around the artificial barriers that James Madison gave us. *Of course* the majority and its elected officials are ignoring a document that no longer serves us; why in the hell shouldn't we?

[Brett Bellmore]

"Brett, the framers in their wisdom gave us a Constitution that is almost impossible to amend, even with strong public support."

Oh, bullshit. 27 amendments and counting, and all of them ratified under Article V.

It's not that it's all that hard to amend the thing. The problem is that the values of our entrenched political class have diverged from those of the general public, to the point where they don't WANT to amend the Constitution in ways that might be ratified. The last amendment they sent out was the ERA back in the 1970's, that got defeated, and they just stopped trying. The only amendments they want are things that the public would reject. So they suborn judges to impose them, instead of writing them up as amendments and seeing them shot down.

Look at Gingrich's "Contract with America": He promised us a couple of quite popular amendments, a term limits amendment, and an balanced budget amendment. Then he carefully managed the effort, bringing multiple versions to the floor, so that everybody who needed to vote for them could without any risk that any one version would get enough votes to be sent to the states. It was a sham.

That's why pressure for a Convention is rising. There are plenty of amendments that could be ratified, Congress refuses to originate them because they WOULD be ratified.

[Krychek_2]

Brett, I'm fine with a balanced budget amendment (though I would raise taxes rather than cut spending), but those aren't the sorts of amendments I'm talking about. I'm talking about stuff the minority-population red states would never go for since it would mean them giving up power over the majority. Like:

Abolishing the electoral college
Abolishing the two-senator per state rule
Banning gerrymandering, and giving courts power to enforce a ban on gerrymandering

In other words, structural changes to our form of governance that would allow the majority to actually have self rule.

Polling data indicates there is broad popular support for those amendments, but they're never going to pass, because the minority won't give up power. So we have a system in which the majority cannot get what it wants unless it runs the table multiple elections in a row.

Which then takes us back to my earlier question: The Constitution does not serve the needs of the majority, so why should the majority pay attention to it?

[Squirrelloid]

Krychek/
"Abolishing the electoral college" - terrible idea. The US is a union of sovereign states. The electoral college is critical to ensuring a system where california (or some small number of high population states) doesn't just run everything.

"Abolishing the two-senator per state rule" - also a terrible idea, for the same reason. (And frankly, direct elections of senators was also a terrible idea).

"Banning gerrymandering, and giving courts power to enforce a ban on gerrymandering" - how would you even do this? Can you define 'gerrymandering' in an objective way so that we can tell when a map is gerrymandered and when it isn't? How do you construct a district map that doesn't involve gerrymandering to some degree?

I think we disagree fundamentally on whether majority rule would be a good idea or not. I'd note that majorities are capable of truly evil things. The whole purpose of the constitution and bill of rights was to prevent the government from letting the majority have its way all the time. The constitution is supposed to serve and protect individuals, not groups, because we're all minorities some of the time, and that's when we most need protection.

[Squirrelloid]

Addendum: 9 states have ~50% of the US population. Nine. (CA, TX, FL, NY, PA, IL, OH, GA, NC). And, strangely enough, CA is less underrepresented than FL or TX in the electoral college (in terms of population/electoral vote), so it's not even clear that the party you think is suffering actually is, electorally.

Nor is it clear that the small states bias the electoral college the way you seem to think it does. The smallest states aren't some monolithic voting block. RI and VT are as reliably liberal as WY and ND are reliably conservative.

[Krychek_2]

Squirroid, yes, majorities are capable of doing bad things, but so are minorities, and I've yet to hear a compelling argument for why the majority is any more likely to be wrong than is the minority. One of the most basic, fundamental rights of a free people is self governance, which implies that the majority actually gets to govern.

And the US being a union of sovereign states rather than the collective people of all those sovereign states combined is an example of where public opinion has moved away from where it was in 1790.

But the issue is not whether we agree that abolishing the electoral college is a good idea or a bad idea. The issue is that even though there is broad public support for it (I've seen one poll as high as 60%) it can't happen because of the current amendment process. Your argument basically boils down to you like the electoral college so the majority shouldn't be allowed to get rid of it.

[Squirrelloid]

Krychek/ But the minority isn't doing anything either. It has no control. The lack of change is not the same as the minority getting its way. The status quo simply persists.

The constitution is specifically designed to require a super majority so that a change has to be very broadly popular (no, 60% doesn't cut it. 3/4 or bust). Making the document hard to amend means its hard to make a bad amendment. And even then, we've had *at least* one terrible amendment pass (prohibition). I'd much rather fail to pass 10 worthy amendments than pass 1 bad amendment, so if anything, the constitution is *too easy* to amend.

If the majority could just do whatever it wanted, the constitution would change every time a different party seized control of Congress. That would be madness. And tons of bad amendments would happen.

Further, relatively easy amendments would defeat the very purpose of the constitution - to create a government of limited powers. If the government could routinely expand the scope of its allowed powers, they wouldn't be limited.

[Squirrelloid]

replying to your later comment: the majority isn't supposed to get what it wants. The tyranny of the majority is just as bad as the tyranny of a monarch. The constitutional amendment process is *supposed* to be hard, to stop just a bare majority abusing everyone else.

child pornography/
I would disagree that the stakes are that high (there aren't that many child pornographers, and the direct harm, while bad for the affected children, isn't exactly a national security threat), that the feds have more relevant experience (most child pornography involves things like child abuse, which local police have much more experience with than feds and far more direct contact with the community), and are pretty terrible at seeing the big picture. These are the same people who demanded access to all our phone metadata and started zero prosecutions from it. Incompetence is the defining feature of the federal government.

I mean, I don't want to underemphasize the moral evil of child pornography, but the actual harm is certainly no greater than a murder, and likely less than many modern fraud cases. And the total threat of child pornography is *dramatically overclaimed* by federal law enforcement. (Similar to the threat of sex trafficking - its a terrible evil, but it's incredibly rare, and in no way justifies the resources the feds throw at it). Don't let your moral revulsion lead you to overestimate the actual danger. There's no reason murder or fraud cases need to be pursued at the federal level, either.

And if i had to guess, local police catch far more pedophiles and child pornographers than federal agencies do. (I'm not actually sure of a good source of statistics on the matter though, especially since many local and state police aren't required to report arrest statistics in any uniform way). Being involved in communities gives them a much better intel than the feds could ever have. Hayek's information problem applies just as much to law enforcement as it does to markets.

Finally, even if the federal government devotes resources to assist in catching such criminals, there's no reason they have to be prosecuted by the federal government. The feds could provide logistical support and other expertise to assist state law enforcement, and leave prosecution to state or local jurisdictions. Catching criminals and prosecuting them are distinct activities.

Plutonium/ Let's be honest, you're not going to just *find* plutonium. It does not really occur in nature (only minute traces in uranium deposits). It needs to be produced by a nuclear reactor if you want to build a bomb. The sophistication needed to produce plutonium and extract it is such that anything less than a large company isn't going to be able to acquire any. And the justifications for federal involvement are a lot greater - since any such operation would have national security implications, which is a federal responsibility.

[Krychek_2]

I will respond in more detail to your points about child porn later, but for now, why is tyranny of the minority any better than tyranny of the majority? Whoever loses an election is likely to feel tyrannized but who says the minority is any more likely to be right than the majority?

[Krychek_2]

Assume, for sake of argument, that I'm right about child pornography being more efficiently addressed at the federal level (not that I would oppose states banning it as well). With that assumption, the reason to then involve the feds is that we get a good result. Period, full stop. And that's the big picture we need to discuss, because whether or not child pornography is the best example, sooner or later there will be an issue as to which there is no question the feds get us a better result, and which under originalism is a state issue. So then the question is do we go with federalism, or do we go with the better result. And for me, that's a no-brainer: I'll choose the better result every time, federalism be damned.

Why should we deprive ourselves of a better result because the framers, all of whom have been dead for centuries, didn't trust the federal government? I just don't share the near religious zeal that some have for what was laid down as good polity 230 years ago. That was then, this is now.

It's the old dispute between Hume's utilitarianism and Kant's unyielding principles. I'm a utilitarian. If it gets us a good result, that's all the reason I need.

[Squirrelloid]

/Krychek
Minority/majority - see above.

Federal/state
There is very rarely anything that is efficiently addressed by the feds, because different states will have different needs and different contexts. One-size-fits-all never actually fits.

Further, very rarely is the first plan of action you settle on the best possible plan of action. But once the feds get involved, no further discussion is possible, and no alternate solutions can be tried. (Marijuana federalism is currently a mess because of federal laws). But if states don't have the feds looking over their shoulders, they can try individual approaches, and states can compare what they're doing to what other states are doing. Brandeis called this 'laboratories of democracy', and regulation competition between states is an important way to figure out *what actually works*. It supports finding efficient solutions. Federal action *cannot access this kind of comparative testing*.

So, no, there's no situation in which it is more efficiently addressed at the federal level. The feds will always be hamfisted, ill-considered, poorly implemented, and incapable of finding better solutions, because no competition is possible, and thus no ability to figure out that what they're doing isn't working as well as it could be.

Federalism, real federalism, always leads to better results, because only it has a process which allows you to find even local optima. So if you want to choose the better result, you should never advocate for federal power.

So you're utilitarian desires? Better served by federalism.

The only time to ever turn to the federal government is when states *cannot* address a problem. It's still going to be hamfisted and inefficient, but then it's the only game in town. And if the states *cannot* address it, there is no conflict between state and federal powers.

[Krychek_2]

Dude, federalism is beautiful theory but it is so wrong on the facts. Take a look at elder poverty rates both before and after social security. Or child poverty both before and after AFDC. We have cold, hard numbers for both before and after the federal government began to play an active role in making people's lives better, and they're not even close. Further, if you compare American numbers on things like infant mortality, life expectancy, and education levels to social democracies like Sweden, Norway and Japan, there is no question that people in those countries are much better off. If you want to argue, on principle, that big government is bad, make that argument, but the idea that a small federal government is better on utilitarian grounds is just not borne out by the numbers.

On the majority/minority thing, here is what your argument boils down to: Your side can't win fair elections, so let's not have fair elections.

[Squirrelloid]

majority/minority: I don't have a side. I'm very much 'a pox on both their houses'. And regardless, you're entirely missing my point - that's not it at all. My point is that we're supposed to have a government of limited powers that's relatively stable, not wildly changing every few years and possessing every power it wants.

federalism/
SS: I dispute your causal conclusion. I don't think SS had much of an effect on elderly poverty rates. If it did, you wouldn't see a continuous decline in elderly poverty rates over decades, you'd see a clear 'before' and 'after', with little variation within those groups.

A continuous decline suggests a continuous process - such as the massively increasing wealth in US society over the last century. Elderly poverty is lower than child poverty (which makes sense, most children are born to relatively younger adults, who tend to be poorer than older people because they don't have the same history of earnings to build up their wealth). When you compare elderly poverty rates to regular poverty rates, the big drop in elderly poverty mirrors the big drop in regular poverty with ~10 year lag. (Also sensible, as elderly people have generally retired and are living off what they made during their working lifetime, so there's a time lag). That strongly suggests a causal relationship between societal poverty and elderly poverty. That elderly poverty has continued to drop while society-wide poverty has stayed reasonably constant is probably due to immigration and mortality. (New immigrants tend to be younger and poorer, which would depress the societal poverty rate relative to the elderly poverty rate. Poorer people also have higher mortality rates pre-retirement, so within an age cohort, relatively more wealthy people make it to 'elderly' than poor people).

(Data note: the last big drop in poverty rate starts ~1959 for society-wide, and *predates* Great Society programs. Last big drop in elderly poverty starts ~1968).

Further, SS directly contributes to generational poverty by destroying wealth creation, especially by poorer families. It robs americans of cash during their working lifetime, and leaves them with an underperforming investment (just investing in average stock market performance or even treasury bonds would do better) that they cannot pass on to their heirs. It's also a regressive tax, because wealthy people tend to live longer, and therefor collect more benefits, all while the loss of income matters less for building wealth because they have more income to start with.

So I'd call SS an abject failure.

And beyond that, it's a moral failure. It destroys core values like responsibility and self governance. We're apparently not smart enough to plan for our futures, so our benevolent overlords have to do it for us. That's nonsense.

I'd also note that the government's claims about SS are frequently misleading and draw unwarranted causal conclusions. Many times they compare SS to a world with that SS income simply gone - not accounting for the decades of income they've taxed away. Yes, of course poverty is higher in that case, but that income wouldn't be simply gone if it had never been taxed away. I've also seen the government and elderly advocacy groups claim they can prove SS is causally responsible for decreased elderly poverty... without citation or accurate link, however. (The link i found goes to a slide show of general economic trend graphs... which isn't even responsive to elderly poverty rates, much less capable of demonstrating a causal relationship). Needless to say, that kind of claim requires strong, statistically rigorous evidence and good methodology, not just an r^2 value on a trend line.

Meanwhile, other government poverty-fighting measures have been an abject failure. LBJ's Great Society and War on Poverty have had NO MEASURABLE EFFECT on poverty rate. If those programs do absolutely nothing, that makes any claims about SS's effectiveness suspect.

Which brings us to healthcare. Let's please not ignore the studies which demonstrate health outcomes for people on medicaid are no better than no insurance at all. The problems with US healthcare are caused by too much government meddling in the economy, not too little. (Primary culprit: insurance cutting consumers out of the loop on medical billing - ultimately an unintended consequence of government salary caps during WW2. That destroys any semblance of a market, and stops competition from working. US healthcare was the envy of the world before the consequences of government meddling in various forms had enough time to thoroughly wreck things).

(It's probably also worth pointing out that other nations depend on US medical R+D - we spend more because we're basically funding R+D for the whole world, and the rest of the world reaps the benefits without paying for it.)

Which brings us to a tangential point - there are things that not only the fed shouldn't do, but that no government should do.

And meanwhile, federal entitlement spending is driving unsustainable federal spending which will ultimately eat economic growth and drive us into an inescapable never-ending depression. Because everyone wants to be Greece, right?

[Squirrelloid]

Oh, and child poverty? It was decreasing rapidly UNTIL Great Society programs went into effect, and then it increased to just under ~20%, and hovers there to this day. So government action on child poverty arguably made things worse.

[Krychek_2]

I would really like to see some citations for those claims you're making, especially the inference that the Great Society made child poverty worse. And I never said that social security was the *only* factor in reducing elder poverty, but your claim that it's an abject failure would be disputed by most economists who aren't libertarian ideologues.

And if you really and truly didn't have a side, then you wouldn't care if we had an electoral college or not. Your "side" is to keep progressives from winning elections. You basically admit that you want limited government (as you define it) cast in constitutional concrete, even though that's not where most people are any more.

[Squirrelloid]

Can i prove Great Society causally made it worse? No. I never claimed a causal connection. But the child poverty rate did stop decreasing right about when the Great Society programs went into effect. Child poverty reaches its all time low in the mid-60s (~14%), only for that rapid decline to halt, and then it pops up to hover around 20% thereafter. Hence "arguably" made it worse. I'd need to spend a couple weeks with a pile of primary data and do a path analysis to see if I could make a good argument that Great Society caused it. But there's certainly no evidence Great Society programs helped.

I'd like to see any proof that social security had a causal effect on elderly poverty rates. (I actually have expertise in statistical modelling and analysis, I want to see this study that claims it so I can see if their methodology survives the laugh test. Proving causal relationships is hard).

It's certainly the case that SS helps maintain intergenerational poverty. I already laid out the causal mechanism. The (negative) relationship between inheritance and poverty is well-known. And we'd prima facia expect SS to reduce heritable wealth most strongly among people who are poor, because it represents a more significant fraction of their lifetime earnings, and a much bigger fraction of their resources after retirement.

And SS isn't even a good deal. The Real Rate of Return of Social Security, assuming no further SS tax increases or benefit changes, is ~1.67% for people born in 1975, but only ~0.21% for people born in 2000 and ~0.14% for people who will be born in 2025. Even people born in 1975 would have done better to invest in treasury bonds. For people who will be born in 2025, you could probably find savings accounts that pay better interest. Letting people invest the money, rather than have government tax it and fund a pyramid scheme, would have been vastly better for pretty much every generation. (Even people born in 1925 only got a net rate of return of ~4.78%, significantly worse than just investing in the performance of the stock market, and possibly worse than treasury bonds over their working lifetime). That's an objectively bad deal. And SS can't even maintain current the benefits:taxes ratio - it's going to go bankrupt in ~2034, and then either benefits will need to be cut, or taxes will need to increase (or both), making it an even worse deal. At some point in time, the net rate of return is going to go negative.

So as a practical 'return on investment' matter, SS can't be doing anything to solve poverty, because it's terribly mismanaging the wealth under its control relative to all forms of investment the workers could have done instead. That means its basically actively destroying wealth relative to the alternatives. Oops? (ie, the right comparison is a world in which SS was an investment program where workers withheld what is now their SS tax and invested it, and owned those investments to draw on in retirement).

This is of course a perfect example of government getting it badly wrong on first guess, and being a federal program, no significant correction was possible.

[Squirrelloid]

Oh, I'd provide links, but then the comment gets lost in moderation for forever. This stuff is all trivially found using google.

[Brett Bellmore]

"I’m just fine with a flat federal ban on those things, even if it’s all intra-state."

Well, I'm not. Not just because, as Squirrelloid points out, states can do this stuff even if the federal government can't.

Because once you decide, "This is important, so the government doesn't have to act legally in this case." an ever expanding number of cases become important.

And, gradually, people lose sight of the fact these are violations being permitted in extraordinary cases, and start to think of them as the actual constitutional principle.

To which the same sort of reasoning will be applied, justifying still further violations. Rinse and repeat, over and over.

You can see this in the progression from, "We can't ban guns, but we can tax them heavily!" to "We'll just stop accepting the tax!" to "Well, of course we can ban guns if they've moved in interstate commerce." to "Where'd you get the idea we can't ban stuff?"

[Squirrelloid]

1/ Disagree. The primary purpose of the commerce clause was to *stop the states from interfering in commerce* (ie, banning tariffs at state borders for internal commerce). I doubt the framers even believed that 'trafficking' was a thing (that is, banning the possession or use of a good, such that transportation or sale of that good was illegal, wouldn't have been seen as a valid exercise of government power under the constitution, and the commerce clause further prohibited such actions to the states). There's a reason prohibition required a constitutional amendment, because banning the production or use of something wasn't a power granted by the constitution.

Virtually all 20th century commerce clause jurisprudence is unconstitutional.

2/ Definitely disagree. If the constitution was followed, there's a small number of enumerated powers that the states couldn't usurp, and everything else was left to the states and the feds weren't allowed to interfere (because it wasn't an enumerated power).

The primary problem in modern american jurisprudence is otherwise intelligent people confused the preamble (which gave reasons for the possession of the enumerated powers, not powers itself) with enumerated powers, and as those reasons were broad, they read all sorts of unenumerated powers into the constitution that simply weren't there.

[markm23]

"1. Even under a very traditional interpretation of interstate commerce, the federal government would still have power to ban genuinely interstate trafficking (another word for commerce) in marijuana. "

As I understand it, the meaning of "regulate" at the time the Constitution was ratified was "make run properly". That did _not_ include "ban"". Even in the 1930's period of boundless federal programs and an intimidated Supreme Court, the Interstate Commerce clause was used at most to justify severe restrictions, not an outright ban.

[apedad]

BB, the feds can and will prevail because they can regulate all interstate activities.

You're looking only at simple marijuana possession but the feds are including interstate transportation (so no flying, no trains, no buses, etc.), interstate finances (that's why banks are so reluctant to accept $$$ from MJ businesses), interstate post (so no mailings, etc.), etc.

[Brett Bellmore]

I agree they'll prevail, but it's not because they can regulate interstate commerce, (NOT all interstate "activities", just the commerce.) it's because they're being permitted to regulate a lot of intrastate activities under the guise of regulating interstate commerce.

I understand this usurpation of power is very unlikely to ever be undone. I'm just unwilling to pretend, on that basis, that it is somehow legitimate, or that the consequences of that usurpation are the consequences of the Constitution, rather than of its violation.

[Armchair Lawyer]

"There isn’t supposed to be any overlap: If the federal government has jurisdiction over a topic, the states don’t. If it doesn’t, they do, unless otherwise prohibited."

Sorry Brett, that's not quite how it works. There are numerous powers that the federal government is specifically given that the state governments also have. The simplest one is the judiciary power. The Federal Government was specifically given it. But the states also have it. Alternatively, the ability to tax income. Originally just the states had it. The 16th Amendment granted this to the federal government. But that did not take the power away from the states

[Longtobefree]

Here's a crazy idea; the feds acknowledge that there are multiple studies showing a positive medical use of marijuana, so it cannot be classified as a schedule one drug.
Then all the funding for the 'war' dries up, and the pressure will be off at the federal level. Then the DOJ can just say no.

[ReaderY]

How is that? Cocaine, heroin, and metamphtamemes are all considered drugs that have legitimate medical uses, all three can potentially be had with a prescription under controlled conditions, and it’s not like funding for the war on them has completely dried up.

[jjrzw72]

Heroin has no recognized medical uses in the United States.

[Brett Bellmore]

It was INVENTED for recognized medical uses!

What you mean is that, once they decided to ban it, it couldn't be legally used any more for medical purposes. Not that it lacks medical purposes.

[Armchair Lawyer]

Heroin, like many other things was "invented for recognized medical uses" that were later realized to be way, way, too dangerous, and really didn't do what the supposed medical use was. Radithor comes to mind, a mixture of radioactive radium in water that was a supposed cure for impotence, among other things.

It lacks a real medical purpose

[Eddy]

"Radithor comes to mind, a mixture of radioactive radium in water that was a supposed cure for impotence"

So that's how all those X-Men got conceived, their dads were using Radithor.

[Sebastian Cremmington]

Nobody would shoot up heroin if Oxy was cheap and easily accessible. Oh nooos, I can’t poop...what will I ever do?!? Wait, I could stop popping Oxy. Btw, Rush Limbaugh was taking handfuls of Oxy and none of his 20 million listeners noticed. The only reason opioid addiction is bad is because Oxy is expensive and difficult to acquire.

[Gamebug]

I've been alone with you inside my mind
And in my dreams I've kissed your lips a thousand times
I sometimes see you pass outside my door
Hello, is it me you're looking for?

[Rev. Arthur L. Kirkland]

Any work intended to curb drug warriors is good work.

Good libertarian work.

[jubulent]

The Federal Government's refusal to enforce its laws equally across states creates a problem. If an action is illegal under federal law when performed in Utah it should be equally illegal when performed in Colorado.

The solution is to either enforce federal law consistently across jurisdictions or to repeal federal drug prohibition laws that conflict with state laws.

Fortunately, there's an easy solution for both. Start vigorously enforcing federal drug prohibition laws and force Congress to fix the mess it created.

Unfortunately, politics is a concern.

[Armchair Lawyer]

"Medical Marijuana" is one of the greatest lies of the 21st century. Because it's not a real medicine, and exists just to get a person high. The reasoning behind this is clear.

1. Marijuana is actually a mixture of two psychoactive compounds (THC and CBD), as well as a bunch of other non-drug crap.

2. The psychoactives have use. CBD is actually an FDA approved drug (Epidiolex) for epilepsy, which you can get a prescription for, nation wide. If you have epilepsy, take that. THC is also an FDA approved drug (Marinol) taken orally to treat anorexia and vomiting in AIDS patient. Note, both are purified forms of an individual compound.

3. Marijuana, by contrast, involves burning crap and inhaling it. Not a single FDA-approved drug for medical purposes ever involves BURNING the drug substance and inhaling it, with a lot of other toxins and crap. It's ridiculous, inefficient, and basically not that safe. (inhaling burnt particulates is never really that safe long term.)

[Sebastian Cremmington]

Lol, it’s 2020—nobody that starts consuming cannabis is going to “smoke” it. Have you heard of vaping?? Are you a time traveler that is from the 1960s?? If you can go back in time remember to invest in Apple. And bet on the Jets to upset the Colts in Super Bowl 3.

[Armchair Lawyer]

Uh huh....

Smoking marijuana is still the most common way of use.

[Eddy]

This looks like a job for Dr. Greenthumb, too bad he's NSFW:

https://www.youtube.com/watch?v=xExSdzkZZB0