Imagine you’re an adviser to the Attorney General. One morning you get the following email from your boss:
Recently, several states have passed legislation decriminalizing the possession of _______. Of course, federal law continues to treat possession of _______ as a crime punishable by prison time. Please write a memo outlining the policy arguments for and against continuing federal enforcement of the _______ ban in states that have legalized its possession, and concluding with a recommendation either for or against continued enforcement.
What would you recommend?
Does it depend on what _______ is?
The issue of whether and to what extent the federal government should enforce prohibitions that conflict with state law is highly relevant these days. In case you haven’t heard, last November, Colorado and Washington became the first states to legalize recreational marijuana possession, and 16 other states and the District of Columbia have legalized the drug for medical purposes. But marijuana continues to be illegal under the Controlled Substances Act (CSA), which Congress passed in 1970, leaving many people confused about what happens when states and Congress disagree.
The basic legal issues are actually pretty simple. In theory, what states do with their drug laws has nothing to do with federal prosecutions. Because federal law is supreme under the Constitution, state laws that conflict with it are preempted– if the feds want to prosecute you for something that’s legal in your state but forbidden by Congress, they can; you can’t hide behind state law. And since it’s unconstitutional for Congress to force state and local law enforcement officials to do its bidding, federal law is carried out by federal agencies like the FBI and the DEA.
What that means–again in theory–is that the legalization of medicinal or recreational marijuana possession in a growing number of states shouldn’t have any impact on prosecutions under the CSA.
But in practice, federal prosecutors and agencies have limited resources, and they have to use discretion in deciding what kinds of cases those resources should be applied to. One factor that understandably influences these discretionary decisions is state legislation, especially when it is passed directly by the people in the form of ballot referendums, as in Colorado and Washington.
In 2009, the DOJ seemed to adopt a position of deference to state legalization efforts. A memo sent by Deputy Attorney General David W. Ogden advised federal prosecutors in states that permitted medical marijuana that they “should not focus federal resources… on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”
Pretty straightforward, right? Well, not exactly. Although that portion of the memo seemed to announce that the DOJ would no longer be prosecuting medical marijuana users and suppliers in states that had legalized the drug for that purpose, other sections stressed that marijuana was still illegal under federal law, and that U.S. Attorneys retained the right to prosecute, notwithstanding state law. In fact, in the years since the memo, some marijuana dispensers who thought they were safe based on the “clear and unambiguous compliance” clause have found themselves subject to prosecution. In Washington, which even before last November had legalized medical marijuana, the U.S. Attorneys advised the state government against facilitating the establishment of dispensaries, warning that they would bring cases against people involved in the medical marijuana system “even if such activities are permitted under state law.”
The result is that some people face serious prison time for doing something that they had a pretty reasonable expectation wouldn’t get them in trouble.
I’m guessing your reaction to all this probably correlates with your political leanings. If you’re a young, college-educated liberal, you might think marijuana is pretty harmless and that at any rate, if states have decided to legalize it, the federal government should leave them alone. On the other hand, if you’re a social conservative (and not a diehard federalist or libertarian), you might oppose letting liberal states like California and Maine undermine our national drug policies. (Fifteen of the eighteen states that have legalized medical marijuana went for Obama in the last election.)
Let’s go back to that memo assignment. What if we filled in the blank with something other than marijuana—say, machine guns? Suppose the Texas legislature decides to legalize them. (Believe it or not, machine guns, which Congress outlawed in 1986, are also banned by the Lone Star State.) Would you want the DOJ to keep prosecuting Texans who violate the federal ban? Is that the same answer you’d give in the marijuana example?
Support for “states’ rights” is usually cast as a conservative position, but the issues of marijuana legalization and gun control are useful reminders that for most people, it’s hard to separate feelings about “states’ rights” from the particular substantive rights being vindicated. For example, in recent decades, the NRA has been happy to use its influence to undermine state gun limitations by pushing pro-gun legislation through Congress. But as my friend Sam Kleiner writes in The Nation, now that Congress might actually be willing to pass a gun control bill, the NRA is furiously recasting itself as a champion of states’ rights. The liberal embrace of state autonomy on the marijuana question, while perhaps less cynical—because no one tops the NRA—is a similar example of selective federalism.
In the 2005 case Gonzalez v. Raich, the Supreme Court upheld Congress’s ability to criminalize possession of home-grown medicinal marijuana under its power to regulate interstate commerce. Antonin Scalia and Anthony Kennedy joined the majority, despite having agreed ten years earlier, in United States v. Lopez, that the government lacked the authority under the interstate commerce power to ban possession of guns in school zones. It doesn’t take extreme cynicism to suspect that they were a little less sympathetic to marijuana users than to gun owners; Scalia in particular tied himself in knots trying to explain the difference.
In dissent, Sandra Day O’Connor mounted a spirited defense of Louis Brandeis’s idea that a state should be able to “serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” She argued that even though she thought California’s medical marijuana law was a bad idea, the state should be left to “come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering.” When I first read that dissent, I remember thinking, Wow, federalism makes so much sense! But then I realized that the “laboratory” idea only sounds smart if you start with the assumption that the idea being tested isn’t really dangerous. In other words, letting states experiment with drug legalization only appeals to me because I’m confident they would prove that it’s way better than our current laws. On the other hand, I wouldn’t be that excited about letting states “experiment” with legalizing machine guns or armor-piercing “cop killer” bullets—not because I think guns are inherently more “national” than drugs, but because I think they’re dangerous and weed isn’t. Of course it’s circular reasoning to say that state experimentation is only okay when a policy isn’t harmful. The point of legislation like the CSA or the Gun-Free School Zones Act is that sometimes we decide, as a country, that some stuff is harmful, and we don’t want anyone to experiment with it.
Part of the liberal appeal of congressional action is that it allows us, as a nation, to protect the interests of vulnerable groups in other states, like blacks in Mississippi or inner-city teens in Indiana. It’s not unreasonable to think that the DOJ should quit prosecuting people who are complying with state marijuana laws, but holding that belief means being comfortable with the right of the executive branch to let states opt out of national legislation that it doesn’t support. What if states could opt out of things like the Civil Rights Act or the Age Employment Discrimination Act? What if a Republican Attorney General advised prosecutors not to enforce any federal gun restrictions?
As harmless as I think marijuana is, I can imagine some pretty scary outcomes if states could unilaterally legalize things that the whole country, represented (roughly) by Congress, has decided are dangerous. That doesn’t mean I want people going to federal prison for marijuana possession, but it might mean that we shouldn’t expect the states, or the DOJ, to solve problems of Congress’s making.
Gilad Edelman is a student at Yale Law School. He has also been known to play a bit of jazz saxophone.
Photo credit: Seekingalpha.com