On Nov. 6, Colorado and Washington voters passed ballots that permit the possession, consumption, distribution, and production of marijuana without penalty. This is the first time a state has fully legalized recreational marijuana.
Despite this, federal law still classifies marijuana as a Schedule I controlled substance under the Controlled Substance Act, which means that simple possession of any amount is punishable by up to a year in jail and a minimum fine of $1,000 for a first conviction. This becomes confusing. If I grow weed in Colorado, local authorities don’t mind, but the DEA can arrest me? Ultimately, one law will stand. The Constitution defines the powers of the federal government, and according to the Tenth Amendment, if it’s not in the Constitution, it’s a state power. Nowhere in the Constitution is it written that the federal government can regulate marijuana. Additionally, states have traditionally held “police power”, or the right to regulate crime within their respective jurisdiction. Yet, there are federal laws that regulate marijuana, and under the Supremacy Clause, federal law supersedes state law. If this power isn’t in the constitution, how does the federal government justify regulation?
“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”
The Commerce Clause of the Constitution is used to justify federal regulation of marijuana. This clause gives the federal government the right to regulate interstate commerce. Why shouldn’t states have this ability?
One reason the founders created the commerce clause was to prevent states from imposing trade barriers on each other.
For example, in an effort to improve the local economy, New Jersey may pass a law which establishes a price fixing scheme for milk, discriminating milk producers in New York. Consequently, New York producers are not able to compete in New Jersey. Overall, the law burdens free trade between states and hurts the nation’s economy. Therefore, the federal government has the right to invalidate these types of state laws and regulate interstate commerce.
Expanding the Commerce Clause:
Increasingly, the commerce clause has been used to expand federal powers. In Wickard v. Filburn, SCOTUS recognized the power of the federal government to regulate intrastate economic activity.
In 1938, the federal government enacted a law that limited the amount of wheat that could be produced, in order to drive up prices during the Great Depression. Filburn, a rather rebellious farmer, was growing wheat in excess of this limit for his own private consumption. Although the wheat was produced and consumed in state, the Supreme Court ruled that those activities affected interstate commerce, and thus, could be regulated by the federal government.
How could in-state actions affect interstate commerce? The Court reasoned that if Filburn was not producing excess wheat, he would have to buy wheat from the open market. Since he wasn’t, the price of wheat in all states would be lowered due to less demand. Although Filburn’s actions alone did not have an effect on interstate commerce, if thousands of farmers did not buy from the open market, the price of wheat would most likely decrease. Therefore, the federal law was valid using the commerce clause.
Okay, but what does this have to do with marijuana?
Regulating Marijuana with the Commerce Clause:
In Gonzales v. Raich, SCOTUS ruled that under the commerce clause, the federal government can criminalize the production and consumption of marijuana, even if such activities remained in state and complied with local laws. Raich was growing marijuana for medicinal purposes in accordance with California law, but these actions were still in violation of federal laws. After a DEA raid, Raich sued the government, claiming it had overstepped its constitutional power.
Ultimately, the Supreme Court validated the federal laws, with the explanation that the intrastate medical marijuana market contributes to interstate illicit marijuana trade and thus, affects interstate commerce. For example, people could transport the drug outside of California, affecting prices in other state economies. It did not matter that Raich did not actually transport marijuana out of state. Since it would be impossible for the government to regulate whether the marijuana was leaving the state, the presumption that it would happen was considered valid.
What could happen?
Ultimately, there will be a winner in the battle for marijuana rights. Here are a few ways it could play out.
1) Federal Law Wins. The Supreme Court will determine that regulating marijuana is a valid federal power and thus, invalidate the state laws. This would be similar to when the Supreme Court invalidated SB-1070, Arizona’s controversial immigration law which conflicted with federal powers.
2) Marijuana Wins. An exception will be made to the Controlled Substance Act. On November 20, 2012, Rep. Diana DeGette (D-CO) introduced a bill referred to as the ‘Respect States and Citizens Rights Act’ which aims to amend the Controlled Substances Act by excluding regulation of any state that has legalized marijuana (for medical OR recreational use). Basically as long as a person is acting in accordance with state law, federal regulations will not be applied.
3) In Limbo. Lastly, it is possible to have both state and federal laws co-exist in two ways.
a. The government can continue enforcing the federal laws sporadically as they are currently doing.
b. A policy of discretion can be implemented, where the Department of Justice chooses not to prosecute persons who abide by respective state regulations. Essentially, this is an implicit exception to the CSA.
Raich pushed the limits of federal regulation under the commerce clause. Some critics argue that, in theory, the commerce clause can give the government authority to force people to eat vegetables and brush their teeth in an effort to reduce medical costs, which are linked to nationwide insurance companies.
In today’s society, almost every activity can affect interstate commerce in one way or another. Most products are made of materials that come from many different states and countries, and the possibility of transporting items across state borders has never been easier. Where do we draw the line?
By: Ketan Kaji