« Should we embrace and even enhance the prospect of "Jury 2.0"? | Main | John Grisham finds mysterious Virginia's application of the death penalty »

September 11, 2010

Would and should the feds sue California if it legalizes marijuana through Prop 19?

As detailed in this CBS News piece, which is headlined "Ex-DEA Administrators Call on Obama to Sue if CA Voters Legalize Pot," the prospect of California's voters legalizing marijuana this fall already has fans of big government talking about a federal lawsuit. Here are the details:

As California voters gear up for a November 2 vote on Proposition 19, a ballot measure that would legalize the growth, possession and distribution of marijuana, nine former administrators of the Drug Enforcement Administration have issued a preemptive call to the White House: If Prop 19 passes, they say, President Obama should sue.

The Associated Press reports that in an August 24 letter to Attorney General Eric Holder, the former DEA officials wrote that the potential legalization of marijuana would challenge federal authority and merit a lawsuit against the state --- much like the one Mr. Obama has filed in protest of Arizona's controversial immigration law, which the administration say contradicts national policy. "We would expect the Department of Justice to act just as swiftly and for the same reason," the DEA administrators said of the potential passage of Proposition 19.

The upcoming vote has incited heated national debate on the issue of cannabis legalization, and Californians once again find themselves in a position to set national precedent with a controversial ballot measure. If passed, Californians 21 and older would be the first Americans with the legal right to use marijuana recreationally....

[W]hether or not the Obama administration would be willing to intervene in the matter is unclear.  The Justice Department has not issued a statement in response to the letter, and unlike with the case of immigration, the president has not made the legalization of marijuana a central focus of his political agenda.

Some related posts on pot policy and politics:

September 11, 2010 at 11:16 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Would and should the feds sue California if it legalizes marijuana through Prop 19?:


I have not read the administrators' letter and therefore cannot comment on its specifics.

In general, I don't know why there would be a need to sue the state. Federal law is supreme. If a person violates it, he can be prosecuted in federal court for a violation of the CSA, and state law is no defense, cf. Gonzales v. Raich. Proposed legislation in Congress that would make it a defense has not passed.

If the feds were to sue, however, they would have a much better case than they have against Arizona. The Arizona law is congruent with federal law; the proposed California law will be contrary to federal law. If the Arizona law has to go as inconsistent with federal authority, the California law would have to go a fortiori.

Posted by: Bill Otis | Sep 11, 2010 3:07:26 PM

Agreed, although even ending state enforcement efforts would be a big deal. And I'm not sure that the feds would be able to offer a big enough inducement to get California back on the reservation.

There is a difference between saying that defendants can still be hauled into federal courts, the state not being able to collect taxes (that part I expect to be struck down pretty much instantly) and California having to actively pursue the drug enforcement regime the feds have going. The last I expect could only be accomplished through the spending power, not any sort of supremacy of federal law.

Posted by: Soronel Haetir | Sep 11, 2010 3:26:31 PM

There are not enough federal prosecutors in California with time enough on their hands to fully enforce the federal controlled substances act against all but the most significant marijuana violators. I am not so sure that a federal lawsuit against California for eliminating its criminal sanctions against marijuana use or distribution would be successful. The federal gov't plainly has a right to enforce its laws against marijuana use and distribution notwithstanding a state's different views, by virtue of the Supremacy Clause. But i am not sure, as a matter of constitutional law, that any provision of the constitution would require a state to follow the federal gov't's lead in terms of allocating its own resources to those law enforcement issues it thinks important, vis a vis those it thinks unimportant. For example, a state is likely free under the constitution to not make illegal monopolistic behavior, or other restraints of trade. That does not make such things legal, of course, because it is still illegal under federal law to engage in such conduct. It just means that a state remains free to take a stance of indifference to such things, and leave it up to the federal gov't to enforce such restrictions, if it wishes. A very interesting question, anyway.

Posted by: Grotius | Sep 11, 2010 4:58:14 PM

Again - whatever happened to the US Constitutional Guarantee of "State's Rights"?

Prop 19 is classic example of allowing the people to self-determine what kind of society they want to have.

Posted by: MainTour | Sep 11, 2010 6:07:29 PM

Sounds like the DEA know that a few of their jobs could be at stake if Prop 19 passes.

Posted by: Anon | Sep 11, 2010 7:48:53 PM

Have we not learned that prohibition DOES not work?? Do away with the DEA!

Posted by: Anon | Sep 11, 2010 7:57:46 PM

This is different from Arizona because there immigration policy is involved, which is a core concern of the federal government, and directly involved the feds (in fact, forcing the feds' hands was the point -- some felt this was justified, others not) given the nature of the people involved (that is, the feds deal with undocumented aliens, and expelling them is a core national concern).

Here, California does not want to criminalize marijuana; or so it the idea. It has every power to do this. The Supreme Court has made it clear -- especially in the 1990s -- that "commandeering" state authorities to carry out federal laws is unconstitutional. See, e.g., Printz v. U.S. (guns). Arizona WANTS to get more involved with the enforcement of laws against undocumented aliens. Arguably, it is doing so in an illegal way.

I don't understand what California is doing here to "challenge federal authority." Inaction is allowed. The feds can still go after illegal marijuana possession and commerce to the degree they are allowed under Art. I. The state doesn't have the power to override federal law but that isn't the point here. If California somehow interferes with the feds enforcement, fine, but the feds do not have the power to commandeer the state police force into their efforts.

Posted by: Joe | Sep 11, 2010 8:38:42 PM

Grotius --

Things get interesting when the feds move to forfeit the tax or licensing revenue the state obtains from the sale of a contraband substance.

I would pay money to be in on that lawsuit.

Posted by: Bill Otis | Sep 12, 2010 3:17:02 AM

Another interesting question. California surely has no obligation under the Constitution to criminalize the possession or sale of marijuana, regardless of the Fed's position. But whether it can safely and with impunity extract revenue from its manufacture, possession, or sale, without running afoul of the federal forfeiture laws, is a bit of a different kettle of fish.

Posted by: Grotius | Sep 12, 2010 3:35:56 PM

Some states currently tax possession of controlled substances [tax stamps], and occasionally bring tax collection actions based on them in the wake of a successful criminal prosecution. Unless the Feds take the position that those too are a problem, California's decoupling of tax and criminal sanctions strikes me as a non-issue.

Posted by: Anon23 | Sep 13, 2010 10:47:22 AM

California surely does not want to decriminalize without regulating... that would lead to free-for-all, as well as an inability to discriminate between legal, California-grown pot and illegal, Mexican-smuggled pot. Part of the point of this enterprise is to minimize the market for illegal smuggled pot, thus minimizing the incentive for violent criminality associated with competition for that market. Whether this is sensible or will work is a different question, but I think that is clearly the objective. If all you can do is decriminalize, without regulating the market to favor the legal, taxed, (hopefully) non-violent, domestic growers, you lose a lot of your potential gains from a policy persective. (Not to mention the important issue, mentioned above, of the massive tax revenue the State would surely like to have.)

The Supreme Court's backbending to defer to federal commerce authority in Raich (notwithstanding skepticism of such expansive authority in other contexts) complicates the whole question of state-federal relations in this area, to the detriment of California's position...

Posted by: Anon | Sep 13, 2010 12:00:14 PM

"discriminate between legal, California-grown pot and illegal, Mexican-smuggled pot"

I am not familiar with state laws against possession and sale of smuggled goods (pot or pots) but it should be noted that the proposed measure does not simply decriminalize pot or anything. For instance, to take a single matter, it sets forth an age requirement. It also limits things to a small amount in some situations. And so forth. Maybe, a discussion of the actual proposition would be helpful.

Raich addressed the power of the FEDS to legislate in this area. But, again, it really doesn't address the question of California itself not arresting people. California's power to not arrest those who grow medicinal marijuana was not infringed by the ruling to my knowledge.

Posted by: Joe | Sep 13, 2010 1:29:15 PM

Some aspects of Prop 19, including related to local government regulation of commercial production and sale, can possibly result in federal involvement, perhaps, depending on how it is put in place.

Again, it might be useful to deal with the actual measure or cite someone who did.

Posted by: Joe | Sep 13, 2010 1:31:20 PM

The state of California surely has no duty to criminalize marijuana and use its state resources to enforce marijuana laws. I can't see that this part of the measure is unconstitutional.

It is also probably entitled to sovereign immunity from suits by the federal government pertaining to its involvement, certainly via a forfeiture remedy, although it might have a duty to provide information from its records in response to federal subpoena requests about marijuana commerce.

Gonzales v. Raich seems to make clear that the federal government can enforce federal criminal law to prohibit marijuana, and the proposition's supporters claims probably establish that this is the kind of activity that would come within the commerce cause authority of Congress.

This doesn't mean that the federal government has an easy choice to make if Proposition 19 passes. It doesn't have to prosecute marijuana violations, but it lacks the resources to be the primary enforcement authority for marijuana violations. In a post-Proposition 19 world, jury nullification also becomes a serious concern in every federal marijuana case at both the grand jury and the trial jury level.

In the court of public opinion, even among the large number of people who believe that marijuana should be illegal and that federal government assistance in enforcing this prohibition is a good thing, many probably do not agree that it is the federal government's job to put its finger in the dike to keep marijuana illegal on its own notwithstanding state government's decriminalization of marijuana. A bill from Congress providing that criminal marijuana laws shall include an exception for any marijuana activities that are legal under state law (a bit like the prescription drug exception under current law for many drugs), might win bipartisan support.

Posted by: ohwilleke | Sep 13, 2010 8:33:06 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB