Federalism in the Weeds

Federal law (the Controlled Substances Act) prohibits the possession, use, sale etc. of marijuana. What to do about state laws, such as Colorado’s, that not only permit but affirmatively license (and regulate) this commerce? For an instructive discussion of the legal problems, see this debate, co-sponsored by the Federalist Society and the Center for Business Law and Regulation at Case Western Law School (headed by the excellent Jonathan Adler, who organized and moderated the event).

Most conservatives, myself included, find this difficult. On one hand, why shouldn’t states be allowed to have their own laws on marijuana, just as they do on alcohol? On the other hand, there’s the rule of law—in this case, the CSA, which plainly preempts conflicting state laws.

The Department of Justice has finagled the problem through memoranda, pronouncing that it won’t enforce the CSA (for now) in states that have licensed marijuana possession and sales. Par for the course, I suppose: what’s good for immigration law, the ACA, and the Clean Air Act (more soon) is good for the CSA. We’re not really talking about enforcement discretion here; we‘re talking about the suspension of law. It’s the province of the executive of what the law is. And its “law” creates a kind of shadow world. Who really knows what health insurance policies can or can’t be sold, and to whom? Similarly, a federal (provisional) promise not to enforce the criminal sanctions of the CSA against pot sellers in Colorado doesn’t mean the seller can find a bank to handle his account (that remains a crime) or a lawyer (can’t advise a client to violate federal criminal law). Municipalities that aid and abet the conduct remain subject to RICO, among other statutes.

Not a good situation. Before mounting our rule-of-law ponies, though, let’s ask: what would or should a Republican administration actually do—enforce the CSA, ACA, CAA, etc? That does not sound like a good idea? Ask Congress to change the law? It could ask, but it won’t get an answer. Now what?

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

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Comments

  1. Kevin R. Hardwick says

    Michael–

    One of the achievements of the English Constitution celebrated by Blackstone was that it explicitly reined in the power of English monarchs to suspend law. When the English drafted their Bill of Rights in the aftermath of the Glorious Revolution, abuse of the suspending prerogative was one of the crimes that established that James II was a tyrant. When American colonists protested the abuses of Parliament, they did so by valorizing precisely this English constitution. I don’t see how anyone can argue that there exists today a legitimate Constitutional authority for the US executive to suspend law.

    Since it would appear that there are clever lawyers out there making the case for a contemporary US executive power to suspend law, I am curious from what cloth they are cutting it? Where can one possibly go to derive such a power that would appear, at least from my admittedly limited perspective, to be utterly hostile to the American constitutional experiment? The power has to derive from somewhere, if it exists, doesn’t it?

    All best wishes,
    Kevin

  2. Rudy Hernandez says

    Unless there are circumstances that make it impossible, the President should enforce the law. If the President can pick and choose when to enforce the laws, we have edged dangerously close to a monarchy and abandoned the separation of powers. If Colorado can license marijuana dispensaries, Maryland can tax the national bank. Having bad laws enforced alerts Congress of the need to have them repealed.

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