Marijuana Federalism

“Colorado and Washington were the first states to withdraw fully from the federal war against marijuana,” Case Western Reserve law professor Jonathan Adler writes in the introduction to Marijuana Federalism, a book he edited. “These rapid changes in state marijuana policy both exploit and challenge American federalism.”

It’s no secret that state legalizations of medical and recreational cannabis are in direct violation of the 1971 federal Controlled Substances Act, which placed marijuana alongside heroin, LSD, methamphetamine, and other drugs declared to have no medical use and a high potential for abuse. Under this law possession is illegal anyplace in America, and the federal government can conceivably arrest anyone found to be carrying even small amounts.

Americans in a growing number of states, meanwhile, are just saying “no” to the feds and building a rapidly expanding cannabis industry that is both legal and illegal at the same time. It’s not a situation that can persist indefinitely.

So what is the legal situation? Murky, as this book explains.

In between state legalization and federal criminalization lies the commerce clause of the Constitution, which allows congress to regulate interstate commerce, but not the economic activity within individual states. In theory this should clear the way for legal cannabis that remains within a state. But as with all things in the legal realm, in practice it quickly gets complicated.

First, there are the natural limits of federal powers. At one time, and following the federal lead, marijuana was outlawed by all fifty states and the District of Columbia. The federal government cannot demand this of states, however, and simply revoking part or all of state prohibitions is entirely legal. Furthermore, the federal government has no power to force states to uphold federal law. Cooperation is appreciated by the Drug Enforcement Agency, but if state and municipal police forces are stripped of the authority to make arrests for cannabis, there is nothing the federal government can do to reverse this. And with limited resources, the feds have to choose which violations to pursue.

For casual consumers there’s little to worry about, then. But the legal standing of producers and retailers is, to put it kindly, tenuous.

The first states to legalize recreational use – including Alaska – did so during the Obama Administration, which formally announced that it would not prioritize prosecutions of in-state marijuana offenses. While this did not legalize what has been happening in states, it did serve as a green light for it to proceed. During the Trump Administration this position was officially reversed, but prosecutions were not pursued. We’ve yet to see how the Biden White House will proceed.

The lack of federal prosecutions created a legal void where it isn’t just growers and shop owners who could find themselves imprisoned if a cannabis-hostile administration is seated in Washington. In separate chapters, authors here examine implications for bankers and lawyers, both of whom could face federal charges for working with the industry.

Financial institutions that allow cannabis businesses to open accounts are at potential risk for money laundering charges, while attorneys who assist clients in the industry as they build their businesses could be arrested for criminal conspiracy.

The federal government, along with several states, has produced memos that create pathways for bankers and attorneys to aid cannabis businesses. But these are not laws. They’re end-runs around the laws, and they restrain the federal hand for the moment. But this could change without warning, leaving those who have acted under the current policies scrambling for legal cover.

These are the gaps between law and enforcement that the authors presented in this book explore deftly, and in surprisingly clear language that’s easily accessible to lay readers. Several concepts lie at the heart of this book, chief among them, the question of, where does federal power end? The consensus here is, for the most part anyway, at the state line.

But of course it doesn’t end there. Supreme Court rulings have lent the regulatory state the ability to reach into state economies if activity can be determined to have an unwanted spillover effect into other states. What this means on a practical level is, if legal cannabis from Colorado is pouring over the border into Nebraska, where it remains forbidden, the federal government has the right to shut down legal cannabis in Colorado, because under the Constitution it regulates interstate commerce, and because the plant is illegal under federal law.

And so there are two bedrock constitutional components in conflict here. The right of states to determine their own paths, and the power of the federal government to maintain peace between the states. The authors grapple with ways that both values can be upheld. They don’t always offer satisfactory answers, but they do point in productive directions.

The key essay here, and one even the most ardent proponent of legal cannabis should consider, comes from University of California law professor Zachary Price, who points out the precedent that was set by the Obama Administration when it declared that it would not prioritize marijuana cases.

The effect of this was that the administration unilaterally opted not to uphold federal law, a constitutionally dubious move that opened the door for subsequent administrations to start cherrypicking which laws they will or won’t defend. Previous administrations have always prioritized or de-prioritized the crimes they prosecute, both for political and philosophical reasons. But never so bluntly.

Regardless of one’s partisan outlook, the potential future fallout from this should be of grave concern. It’s the job of Congress, not the president, to determine the laws. Presidents are supposed to carry them out regardless of their preferences. Obama, followed by Trump, and for the moment at least, Biden, have all opted to let cannabis legalization continue. But the question is, what other laws are we willing to see presidents unilaterally dispose of?

And this leads to the inevitable conclusion to which this book will lead readers, even though it remains largely unspoken in the text. The best solution here is for Congress to decriminalize marijuana.

The industry, at this point, has grown quite sizable and won’t go away easily. Meanwhile, the apocalyptic warnings about legalization from cannabis opponents have failed to materialize (this is extensively documented in an early chapter), so the argument for marijuana being a social ill have vaporized. Support for legalized marijuana is strong in some states, scant in others.

Congress could simply reschedule the plant in a manner that allows statewide legalizations while prohibiting its transfer over state lines. This would not only satisfy those states where the majority opposes legalization, it would also better balance the federal position on cannabis in regards to the commerce clause, with implications for other conflicts between state and federal powers.

And for the thousands of small businesses that have cropped up in legal states to serve cannabis customers, this would remove two threats with one sweep: criminal prosecution from the feds, and economic destruction by corporations waiting to grab the bulk of the pie for themselves, which full legalization would allow but decriminalization would not.

If compromise is the key to a functioning free society, this would be a giant step toward making just about everyone happy.

David James is a freelance writer in Fairbanks. Comments about this story? Email jstricker@AlaskaCannabist.com.

Marijuana

Federalism:

Uncle Sam

and Mary Jane

Edited by Jonathan H. Adler

Brookings Institution

196 pages

2020

$34.99

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