Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, January 14, 2016

Is opposing maijuana reform more important to conservatives than restricting federal power?

The question in the title of this post is prompted by this new Forbes commentary by Jacob Sullum headlined "Legalization Lawsuit Shows Conservative Constitutionalists Have Marijuana-Related Memory Loss."  Here is how it starts and ends (with links from the original):

Last week, two days before Mexican authorities recaptured Joaquín Guzmán Loera, a.k.a. El Chapo, Oklahoma Attorney General Scott Pruitt pointed to another drug lord, this one hiding in plain sight: John Hickenlooper, a.k.a. the governor of Colorado.  “The State of Colorado authorizes, oversees, protects, and profits from a sprawling $100-million-per-month marijuana growing, processing, and retailing organization that exported thousands of pounds of marijuana to some 36 States in 2014,” Pruitt writes in a Supreme Court brief joined by Nebraska Attorney General Douglas Peterson.  “If this entity were based south of our border, the federal government would prosecute it as a drug cartel.”

Hickenlooper actually was a drug dealer of sorts before he got into politics, having cofounded Wynkoop Brewing Company, a Denver brewpub, in 1988.  But he ended up running the drug trafficking organization described in Pruitt’s brief by accident.  He was elected governor two years before Colorado voters decided, against his advice, to legalize marijuana.  Pruitt and Peterson are trying to overturn that result, claiming that it hurt Oklahoma and Nebraska by encouraging an influx of Colorado cannabis.  Their argument shows how readily some conservative Republicans let their anti-pot prejudices override their federalist principles....

Last week Texas Gov. Greg Abbott showed what a more consistent federalism looks like.  Abbott proposed nine constitutional amendments aimed at restoring the balance of power between the states and the federal government.  Number one on his list was an amendment that would “prohibit Congress from regulating activity that occurs wholly within one State,” in line with the original understanding of the Commerce Clause.  In a position paper that draws on the work of libertarian law professor Randy Barnett, who represented the plaintiffs in Raich, Abbott argues that the power to regulate interstate commerce is limited to activities that are both interstate and commerce (meaning the trade or exchange of goods).  He criticizes Raich at length, asking, “What constitutional provision conceivably could allow federal agents to raid a home and destroy plants that were planted, grown, and consumed inside the borders of one State and in accordance with that State’s law?”

Although Abbott does not say so explicitly, the implication of his argument is that federal prohibition — not just of marijuana but of cocaine, heroin, LSD, lawn darts, “assault weapons,” or “partial birth” abortion — is unconstitutional insofar as it extends to purely intrastate activity.  In other words, even if Oklahoma and Nebraska were right that Colorado’s regulation of the marijuana industry violates the CSA, it should not matter, because the CSA itself is unconstitutional.  When it comes to the Constitution, not all conservatives suffer from marijuana-related memory loss.

http://lawprofessors.typepad.com/marijuana_law/2016/01/is-opposing-maijuana-reform-more-important-to-conservatives-than-restricting-federal-power.html

Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink

Comments

My take is a little different than Mr. Sullum’s. Federalism is an important conservative idea, but so are the ideas that (a) Congress, not the President, makes laws, and (b) the President is not allowed to decide which laws he happens to feel like enforcing. If the Supreme Court ever adopts Governor Abbott’s interpretation of the Commerce Clause, I’m sure Mr. Pruitt would drop his suit. But if the Supreme Court’s interpretation is the law, then (he presumably would argue) it should be enforced uniformly.

The really inconsistent position is the one taken by progressives, which is that the federal government is entitled to exert near-total control over every aspect of economic life except selling marijuana, where suddenly all the FDRs turn into John C. Calhoun.

As a pro-legalization guy, I’m very sympathetic to the Obama Administration’s approach to marijuana, but as a precedent for future situations in which the President decides that Congress’s authority doesn’t need to be recognized, it’s a significant problem.

Posted by: Frank Snyder | Jan 15, 2016 8:21:04 AM

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