Monday, November 19, 2012

Don't Break Out the Cheetos and Goldfish at All (not even the vegan alternatives)

By Mike Dorf

The legalization of recreational marijuana by the states of Colorado and Washington does not change anything in principle from the status quo ante in which various states (including Colorado and Washington) had legalized medical marijuana.  Before, as now, state legalization created an apparent enforcement conundrum for the federal executive officials (largely in the DEA and the FBI) responsible for enforcing the federal Controlled Substances Act.  At least since the Supreme Court's 2005 decision in Gonzales v. Raich,  it has been clear that federal power under the Commerce Clause extends to marijuana grown within a state for purposes of consumption within that state, even if legal under state law.  In this post, I want to make a few observations about the relations between state and federal law enforcement in areas in which authority overlaps but policy differs.

Prior to the middle of the 19th Century and the Supreme Court's ruling in Cooley v. Board of Wardens, it was possible to argue that the Constitution divided up power to regulate commercial activity into two non-overlapping spheres.  But since Cooley, our conception has been different.  There are activities that fall exclusively in the domain of the states exercising the police power; areas that are exclusively regulable by the federal government; and areas which are regulable by both the states and the federal government, with state law being displaced in the event that federal law is either to the contrary or preempts the field.  Schematically, the post-Cooley conception looks as follows:
Note that pre-Cooley, under a separate spheres approach, we couldn't have the conundrum in which federal authorities now find themselves.  If marijuana was regulable by the states, then it wasn't regulable by the feds, and so a state decision to legalize was final.  Conversely, if marijuana was regulable by the feds, then it wasn't regulable by the states, and so a Congressional statute criminalizing it was definitive.  It's because the regulation of marijuana falls into the area of overlap in the post-Cooley world that we have a problem.

But is it really a problem?  States certainly have no obligation to criminalize everything that the federal government criminalizes, even if state law could also apply.  On a very straightforward view, there is no difficulty here.  Whether or not it is smart policy, the federal law criminalizing marijuana is valid, and so the federal government can enforce it.  Colorado has no obligation to further criminalize marijuana.  Moreover, pursuant to the anti-commandeering principle of Printz v. United States, Colorado officials have no duty to enforce the federal law--unless they volunteer to do so, either on their own or in exchange for federal dollars.  

I think the view just stated may be too simple.  Colorado's Amendment 64 does not simply decriminalize marijuana.  It sets up a regulatory regime that provides for age checks, taxation and other regulation.  In that regard, Colorado's law--like Washington's and, for that matter, the laws in the states that permit only medical marijuana--does appear to affirmatively interfere with federal law enforcement.

Let me try an analogy.  Federal law forbids counterfeiting U.S. currency.  So does the law of most states.  For example, Article 170 of the New York Penal Law criminalizes the use of a "forged instrument."   Case law interpreting the relevant Code sections establishes that knowing possession or use of counterfeit U.S. currency violates state law.  Now suppose that New York amends Article 170 to make an exception for counterfeit U.S. currency.  The legislative history of the amendment states that the legislature is motivated by the perception that the federal Justice Department does a more than adequate job of prosecuting people for passing off counterfeit U.S. currency and that the state legislature wants prosecutors in the state to focus on other crimes.  I see no difficulty at all here.  The state is simply withdrawing its criminal prohibition from conduct that federal law happens to criminalize.

Suppose instead, however, that the state legalizes, taxes and regulates counterfeit U.S. currency, perhaps issuing licenses to businesses that create counterfeit currency.  I think it pretty obvious that such a state law would not merely fail to duplicate the federal prohibition; it would affirmatively violate federal law.  We could imagine that the feds might even prosecute New York officials for aiding and abetting violators of the federal counterfeit law.  It strikes me that officials in any state that licenses marijuana possession, production and distribution--rather than merely not forbidding it--run the risk of federal prosecution.

Of course, federal authorities could forbear from enforcing the federal CSA against state authorities in the same way that they have generally been forbearing from prosecuting medical marijuana users in the states in which it has been legalized under state law.  But even with some such forbearance, I think it is available to a state official to refuse to implement a state's marijuana regulation regime on the ground that he or she cannot do so lawfully.  After all, Article VI makes all state officials swear an oath (or make an affirmation) to uphold the Constitution, including its Supremacy Clause, which makes duly enacted federal laws the Supreme Law of the Land.

Thus, although I agree with the policy of marijuana legalization and would--as a state legislator or member of Congress--vote for repeal of laws criminalizing it, I think it is a close question whether state officials are even permitted to implement state marijuana legalization, at least in states with comprehensive regulatory regimes.  Sorry dude.


rhen356 said...

I have to agree. The logic is sound. Like you said, consistent with their oath to uphold the Constitution (and the Supremacy Clause), they have the right (and some would say the duty) to not enforce these regulatory schemes. But I don't like it. Loophole, anyone?!

Joe said...

The regulation of sale that is at issue here goes beyond the dissenting opinions in Gonzalez v. Raich, which provided [or at least offered in theory] an ideal case of personal possession of a small amount of marijuana.

I understand how states that decriminalize marijuana would wish to regulate the substance but am inclined to agree with the article.

I'd be interested to find a good counterargument.

Paul Scott said...

The best counter argument isn't a legal one. The States should defy the feds on this issue in much the same way they did with medical marijuana. We have already seen some, small, success with a group in congress encouraging the Administration to ignore enforcement options in States that legalized.

Marty Lederman said...

Not sure I follow, Mike.

I don't know exactly how the Colorado law will operate, but as you describe it, it will include "age checks, taxation and other regulation" of marijuana possession, and possibly "licensing," as well.

As so described, those are all state-law *limitations* on the activity, albeit limitations that are not as severe as the federal prohibition. Instead of absolutely prohibiting marijuana possession, Colorado will tax it, and prevent minors from possessing it, etc. What about the Colorado "license"? Well, what is that license, exactly? I assume it is, in effect, an exemption from what would otherwise be a state-law prohibition on possession (e.g., "No one may possess X without a license from the state.").

I don't see how any such less-than-prohibition half-measures would "affirmatively interfere with federal law enforcement." Nor is the aiding-and-abetting analogy apt. Taxing an activity, or placing limits upon it short of those some other sovereign imposes, is hardly assistance of that activity.

Therefore a Colorado official whose duty is to collect taxes on marijuana, or to prevent minors from using it, or to hand out licenses to those eligible for them (licenses that will merely preclude state, but not federal, prosecution), could not refuse to perform such activities on the theory that they are preempted by federal law.

Is there something else about the Colorado law that I'm overlooking?

Michael C. Dorf said...


It may be possible to recharacterize the provisions of Amendment 64 as the mere withholding of prohibition, but that's also true in my counterfeiting example. And I just don't see that as a fair reading of the provision, which you can find here:

For example, under Section 5bII, if faced with competing bids for scarce licenses, Colorado authorities must consider the prior experience of a marijuana retailer (perhaps including the quality of the product). The initiative also authorizes implementing regs which are likely to entangle the state authorities even further in the marijuana business in Colorado--much as, say, State agriculture departments work to assist farmers in producing other crops.

As I said, given my policy druthers, I hope that the extensive regulatory regime could be characterized in what I described as the "simple" view that you endorse. I just don't see that as the best way to so characterize it. That becomes clearer if we imagine that Colorado had decided to decriminalize, tax and regulate counterfeiting--or slavery.

Marty Lederman said...

Mike: Of course if your reading is correct -- if the law will "entangle the state authorities even further in the marijuana business in Colorado" in the sense of "assist[ing] farmers in producing [it]" -- then yes, provisions of that kind would be preempted by federal law.

But I don't see anything in the Colorado statute of that nature.

You invoke 5(b)(II), which provides that *if* the Department establishes a competitive licensing system (which it's not required to do, far as I can tell), then in deciding which competing bids should receive licenses (i.e., exemptions from a state law ban), the Department should consider whether the bidders have complied with Colorado law in their prior experience producing or distributing marijuana.

Can't see any problem with that. You suggest that "perhaps" that assessment would (could?) "includ[e] the quality of the product." Of course, to the extent the Department were to establish a practice of assessing the product for, say, awesome taste, or the sort of high it produces, then yes, that might be preempted. But the statute doesn't contemplate, let alone require, such assessments, far as I can see -- the Department is merely supposed to consider whether the applicant has been law-abiding.

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