On Pot Laws, Respect The States

Mar 27, 2013

It may be sur­pris­ing, but no state is required to have a law mak­ing pos­ses­sion of mar­i­juana, or any drug, a crime. There­fore, any state can legal­ize some or all mar­i­juana pos­ses­sion if it chooses. The fed­eral gov­ern­ment, if it chooses, can enforce the fed­eral law against its pos­ses­sion and use, but it is up to each state to decide what to crim­i­nally pro­hibit, based on the 10th Amend­ment. This basic insight has been lost in the pub­lic dis­cus­sion about whether the ini­tia­tives legal­iz­ing pos­ses­sion of small amounts of mar­i­juana passed by Col­orado and Wash­ing­ton vot­ers in Novem­ber are pre­empted by fed­eral law. The two states will soon final­ize reg­u­la­tions to imple­ment those ini­tia­tives, includ­ing how to tax and reg­u­late mar­i­juana. U.S. Atty. Gen. Eric H. Holder Jr. told a recent meet­ing of state attor­neys gen­eral that the Jus­tice Depart­ment review of the ini­tia­tives was wind­ing down, sug­gest­ing an immi­nent deci­sion as to whether it intends to chal­lenge the ini­tia­tives as being pre­empted by fed­eral law. This month, eight for­mer heads of the Drug Enforce­ment Admin­is­tra­tion urged Holder to enjoin the new state laws. Peter Bensinger, DEA chief from 1976 to 1981, told the Asso­ci­ated Press: “This is a no-brainer. It is out­ra­geous that a law­suit hasn’t been filed.” Is it out­ra­geous? Or is it just an intel­li­gent assess­ment of the legal land­scape? The pre­emp­tion doc­trine is based on the supremacy clause of Arti­cle VI of the Con­sti­tu­tion, which makes fed­eral law “the supreme law of the land” trump­ing con­flict­ing state laws. The ques­tion, then, is whether there is a con­flict between the fed­eral gov­ern­ment pro­hibit­ing small amounts of mar­i­juana and some states not doing so. There is not a con­flict when one level of gov­ern­ment pro­hibits some­thing but another level of gov­ern­ment does not. An easy illus­tra­tion is that mur­der is a crime in every state, but, except for very spe­cific cir­cum­stances, it is not a fed­eral crime. No one would say that there is a con­flict. Like­wise, a state can decide that cer­tain con­duct does not vio­late state law even if it offends fed­eral law. It is then for the fed­eral gov­ern­ment to decide how, if at all, it wants to enforce the fed­eral law. Sev­eral other states, includ­ing Cal­i­for­nia, have laws mak­ing pos­ses­sion of up to an ounce of mar­i­juana an infrac­tion pun­ish­able by a fine, even though under fed­eral law, it’s a mis­de­meanor pun­ish­able by up to one year in fed­eral prison. Sim­i­larly, 17 states and Wash­ing­ton, D.C., have laws that allow pos­ses­sion of mar­i­juana for med­ical pur­poses; there is no such fed­eral excep­tion. Although the fed­eral gov­ern­ment can enforce the stricter U.S. law in states that have decrim­i­nal­ized pos­ses­sion or have med­ical mar­i­juana laws, it has never acted to have those state laws inval­i­dated based on the pre­emp­tion doc­trine. Sim­ply put, no state has to have a law pro­hibit­ing mar­i­juana, even though fed­eral law does. And if a state does have such a ban but wants to repeal it in whole or in part, such as for pos­ses­sion for med­ical rea­sons or for small amounts, it may do so. Because states could remove all crim­i­nal sanc­tions for mar­i­juana, this more lim­ited removal of some state sanc­tions can­not be pre­empted, claim­ing a con­flict with fed­eral law. It is true that Col­orado and Wash­ing­ton go fur­ther than allow­ing pos­ses­sion of small amounts of mar­i­juana under state law; their new laws also reg­u­late and tax the sale of mar­i­juana. But this actu­ally helps achieve the fed­eral objec­tive of con­trol­ling mar­i­juana com­pared to a state decrim­i­nal­iz­ing mar­i­juana with­out reg­u­lat­ing its dis­tri­b­u­tion. Beyond the legal argu­ments, there are pol­icy rea­sons for the fed­eral gov­ern­ment to not inter­fere with the Col­orado and Wash­ing­ton laws. An impor­tant fea­ture of fed­er­al­ism is that states are empow­ered to serve as lab­o­ra­to­ries for exper­i­men­ta­tion with social poli­cies. As the nation embarks on per­haps the most sig­nif­i­cant pub­lic debate about drug pol­icy since Pres­i­dent Nixon declared the war on drugs, Wash­ing­ton and Colorado’s exper­i­ment should be allowed to go for­ward. The coun­try can then assess whether it suc­ceeded or failed. Let’s hope Holder’s response will be more nuanced and respect­ful of the states than that urged by the retired drug war­riors. Erwin Chemerin­sky is dean of the UC Irvine School of Law. Allen Hop­per is crim­i­nal jus­tice and drug pol­icy direc­tor of the ACLU of Cal­i­for­nia. Source: Los Ange­les Times (CA) Author: Erwin Chemerin­sky and Allen Hop­per Pub­lished: March 27, 2013 Copy­right: 2013 Los Ange­les Times Con­tact: letters@​latimes.​com Web­site: http://​www​.latimes​.com/

 On Pot Laws, Respect The States

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On Pot Laws, Respect The States

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