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December 11, 2012

Timely new Cato policy analysis on federal supremacy and pot prohibition reform

I was pleased to learn via e-mail that the Cato Institute has just released a new policy analysis by Vanderbilt law prof Robert Mikos concerning the interplay between federal law and state law concerning marijuana policy reforms. The Cato paper, available via this link, is titled "On the Limits of Federal Supremacy: When States Relax (or Abandon) Marijuana Bans," and here is the executive summary:

The American Constitution divides governmental power between the federal government and several state governments.  In the event of a conflict between federal law and state law, the Supremacy Clause of the Constitution (Article VI, Clause 2) makes it clear that state policies are subordinate to federal policies. There are, however, important limitations to the doctrine of federal supremacy.

First, there must be a valid constitutional basis for the federal policy in question.  The powers of the federal government are limited and enumerated, and the president and Congress must always respect the boundary lines that the Constitution created.

Second, even in the areas where federal authorities may enact law, they may not use the states as instruments of federal governance.  This anticommandeering limitation upon federal power is often overlooked, but the Supreme Court will enforce that principle in appropriate cases.

Using medical marijuana as a case study, I examine how the anti-commandeering principle protects the states’ prerogative to legalize activity that Congress bans.  The federal government has banned marijuana outright, and for years federal officials have lobbied against local efforts to legalize medical use of the drug.  However, an ever-growing number of states have adopted legalization measures.  I explain why these state laws, and most related regulations, have not been — and cannot be — preempted by Congress.  I also develop a new framework for analyzing the boundary between the proper exercise of federal supremacy and prohibited commandeering.

Although I focus on medical marijuana, the legal analysis applies to any issue pitting permissive state laws against restrictive federal regulations.  Recent referenda in Colorado and Washington that legalize the recreational use of marijuana for adults will likely prompt federal officials to respond by touting the supremacy of the federal ban and challenging the constitutionality of state efforts at legalization.  Such state reforms should carry the day in the event of such a legal challenge.

December 11, 2012 at 05:41 PM | Permalink

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"Recent referenda in Colorado and Washington that legalize the recreational use of marijuana for adults will likely prompt federal officials to respond by touting the supremacy of the federal ban and challenging the constitutionality of state efforts at legalization. Such state reforms should carry the day in the event of such a legal challenge."

An interesting conclusion. I wonder if Prof. Mikos can cite a single federal case in the last 50 years in which a conflict between state permissiveness on marijuana and federal criminal prohibition has been resolved in favor of the state.

I don't believe there is such a case, but if someone could supply a citation to one, I'll certainly take a look.

Posted by: Bill Otis | Dec 11, 2012 7:34:41 PM

Certainly if it were only a matter of the state saying ""Private possession and use is no longer illegal" I do think the supremacy clause would not help the feds, simply on the basis that I do think the states can choose to allocate their law enforcement efforts in ways other than what the federal government would desire. The feds can entice state enforcement, not command it.

But saying "We are now going to license retailers and tax sales" is a much bigger step and one I do think the states would lose on if it comes to a court challenge.

Posted by: Soronel Haetir | Dec 11, 2012 8:29:35 PM

Soronel --

I don't think the feds can force the state authorities to do squat. On the other hand, that's not what's going on, nor is it what I'm asking. What I'm asking is whether the existence of a state law purporting to legalize pot can prevent the feds from arresting and indicting a person in that state for a violation of FEDERAL law, specifically, the CSA.

As I said, I never heard of a case prohibiting the feds from doing that. Again, if anyone has the citation to such a case, I'm eager to see it.

Posted by: Bill Otis | Dec 11, 2012 8:53:23 PM

Bill:

You and I both know that no such case exists. All the federal ex-US ADA's in black pajamas don't recognize the enumerated rights clause of the Constitution because, heaven forbid, it was intended to limit the reach of the Feds.

Do you believe what you read in the Constitution or what was told you in law school and in your previous job? As a conservative, do you consider yourself a strict constitutionalist?

Posted by: albeed | Dec 11, 2012 10:30:34 PM

albeed --

"You and I both know that no such case exists. All the federal ex-US ADA's in black pajamas don't recognize the enumerated rights clause of the Constitution because, heaven forbid, it was intended to limit the reach of the Feds."

You'd have to take that up with the Supreme Court. No one ever appointed me a judge.

"Do you believe what you read in the Constitution or what was told you in law school and in your previous job?"

I don't know that the two are different, but it wouldn't matter anyway. The Supreme Court has the last say on the meaning of the Constitution whether I agree with it or not. I think both Miranda and the Obamacare cases were wrongly decided as a matter of Constitutional interpretation (as did the four dissenters in each), but my obligation to follow the law as interpreted by SCOTUS does not depend on my agreement with any particular outcome. It depends on my respect for the rule of law generally.

"As a conservative, do you consider yourself a strict constitutionalist?"

I consider myself subordinate to the Supreme Court. I might not like that postion, but modesty and adherance to the social contract require me to live with its implications, whatever my own strict construction of the Constitution might tell me.

Posted by: Bill Otis | Dec 11, 2012 11:30:42 PM

Bill:

I have to admit that you are at the very least, sincere and consistent in your views.

Posted by: albeed | Dec 12, 2012 8:57:53 PM

albeed --

Thank you and Merry Christmas.

Posted by: Bill Otis | Dec 16, 2012 1:06:23 PM

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