Federalism in the Weeds

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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?