Monday, October 10, 2022

Marijuana Legalization Obstacles and the Frequently False Promise of Veto Gates

 by Michael C. Dorf

On Thursday, President Biden pardoned thousands of people who had been convicted on federal charges of simple possession of marijuana. To be clear, none of those people were in prison. Still, as the president explained, a felony conviction stands as a substantial obstacle to employment and full participation in public life. Given how common marijuana use is, it was profoundly unfair that the people who happened to have simple possession convictions--disproportionately people of color, as the president also noted--were burdened with the concrete and stigmatic disadvantages they bore. I applaud the pardons.

That said, the pardons do not cover people who were convicted of selling marijuana. Nor do they cover people convicted for violating state laws, because the president lacks power to issue pardons for state crimes. These pardons thus do not solve the problem of marijuana criminalization, which would require federal legislation removing "marihuana" (and related terms) from the statutory list of Schedule I substances.

After saying a bit more about what I mean by "solving" the marijuana criminalization problem, I'll explain why the political obstacles to action in Congress undercut a frequently repeated claim about the supposed benefit of so-called veto gates to legislation.

Under a policy first adopted during the Obama administration, continued during the Trump administration despite the reluctance of Trump's first AG Jeff Sessions, and more enthusiastically applied by Merrick Garland's DOJ, the federal government does not pursue criminal charges for marijuana possession or sale when carried out in accordance with state laws that permit and/or regulate such activities. But that policy is solely a matter of voluntary executive forbearance. A future hardline administration could, without seeking any change from Congress, reverse course and prosecute the people running dispensaries in Boston, Denver, Los Angeles, Seattle, and elsewhere. And even now, "state-legal" cannabis/marijuana sellers operate in a nether-zone, cut off from the banking and credit-card facilities available to other kinds of businesses.

To be sure, since 2015, Congress has forbidden DOJ from spending money to enforce federal marijuana laws to prosecute people for state-legal "use, distribution, possession, or cultivation of medical marijuana," but: (a) that provision must be re-enacted with each budget; and more importantly for present purposes (b) does not prevent federal prosecution for recreational marijuana. Thus, a great many people who possess (or cultivate or distribute) marijuana in compliance with state law remain vulnerable to a change in enforcement policy.

The legal limbo is unhealthy for at least two related reasons. First, of course, is the burden it places on cannabis/marijuana businesses in states that have decided (via legislation or ballot initiative) to allow them to operate. The justification for DOJ's forbearance policy is federalism; taking that justification to its logical conclusion would mean that states have full authority over marijuana policy in their respective jurisdictions.

Second, the justification is shaky. As then-Attorney General (later-Justice) Robert Jackson famously observed, given the number of crimes on the books, prosecutorial discretion is inevitable. Still, that discretion should be exercised in a principled manner. It is perfectly legitimate for the government to concentrate its resources on some crimes (or sources of criminal activity) that pose a greater danger than others. A district attorney who threw the book at jaywalkers but ignored murderers would be doing a terrible job. However, one would ordinarily think that federal resources should be allocated where state resources are lacking, i.e., in states that have legalized marijuana, not in those states that haven't. Here's how I illustrated that point in an essay on this site in 2014:

Suppose that a state legalizes hate crimes. If the DOJ had previously relied on state prosecutors to go after low-level hate crimes while saving its resources for a sub-category of federal law consisting of more serious hate crimes, wouldn't the state's legalization decision be a reason for the DOJ to devote more resources to enforcement efforts in that state, not fewer, as with the marijuana example?

As I explained at the time, the decision to de-prioritize enforcement of federal marijuana law in legalizing states while, presumably prioritizing enforcement of federal hate-crime legislation in my hypothetical hate-crime-legalizing state can only reflect a judgment by DOJ that the federal marijuana prohibition is bad policy while the hate-crime law is good policy. Such a determination goes beyond the inevitable executive policy judgment to prioritize enforcement of the murder law over the jaywalking law. It cannot be explained or justified by the standard account of prosecutorial discretion of limited enforcement resources and thus amounts to executive encroachment on the legislative role.

To be clear, I approve of DOJ's marijuana forbearance approach on policy grounds. And as I noted in 2014, I doubt that anyone has standing to challenge it in court. Nonetheless, on principle, we should be uneasy about unfettered executive power to decide not to prosecute some category of crimes not on the ground that others are more important but on the ground that those particular offenses shouldn't be crimes at all. We can recognize an exception to that principle where the executive branch has a good-faith basis for thinking that the laws at issue are unconstitutional. Even then, however, enforce-but-don't-defend -- which was the Obama administration's approach to the Defense of Marriage Act -- is the sounder course. In any event, the exception is irrelevant here, because no one seriously contends that the federal prohibition of marijuana is unconstitutional. (In a 2001 case, SCOTUS left open the possibility that there might be a constitutional right to a necessity defense to a prosecution for marijuana in cases of medical use, while strongly hinting that it would reject such a right even in that limited circumstance.)

Accordingly, Congress should amend federal law to eliminate the crime of simple possession of marijuana. In so doing, it could also pre-empt state laws, thereby making simple possession of marijuana legal throughout the country. While there are good reasons for so doing, that course seems unlikely. A more likely path to federal legalization would simply eliminate the federal crime, leaving the decision whether to fully legalize marijuana to state law. A bill to do that (and more) passed the House in April of this year but has stalled in the Senate, where a very similar bill was introduced in July of this year; that one also seems doomed.

Why? Because Republican Senators oppose legislation decriminalizing marijuana at the federal level, Indeed, they oppose even more modest steps. Thus, Arkansas Senator Tom Cotton characterized the president's action last week this way: "In the midst of a crime wave and on the brink of a recession, Joe Biden is giving blanket pardons to drug offenders."

Cotton's views do not represent the attitudes of most Americans, but under our Constitution, they don't need to. Passing federal legislation is very difficult, even when a clear majority of the country supports such legislation. The Constitution's allocation of two Senators per state regardless of population gives Senators who represent a distinct minority of the national population effective veto power over legislation.

The Constitution's "veto gates"--the requirement of securing a majority in the House and the Senate as well as the President's assent or, absent presidential approval, supermajorities in each chamber--are often said to be a libertarian feature of our system of government. Here's Justice Gorsuch giving voice to that view earlier this year in his concurrence in West Virginia v. EPA:

[L]awmaking under our Constitution can be difficult. But that is nothing particular to our time nor any accident. The framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty. See The Federalist No. 48, at 309–312 (J. Madison); see also id., No. 73, at 441–442 (A. Hamilton). As a result, the framers deliberately sought to make lawmaking difficult by insisting that two houses of Congress must agree to any new law and the President must concur or a legislative supermajority must override his veto. 

The Constitution's veto gates probably do, in the aggregate, have a libertarian bias, but that is hardly the whole story. In the absence of any law, veto gates serve libertarian/anti-regulatory ends. However, in a country in which Congress has been legislating for over 23 decades, the veto gates themselves can "pose a serious threat to individual liberty." Veto gates do not inherently preserve liberty. They preserve the status quo. They make it difficult to enact new laws infringing liberty, but they make it equally difficult to repeal old laws infringing liberty. Congressional failure to reform the marijuana prohibition illustrates the point.

Finally, I should be clear that my main point here is observational, not normative. I am not a libertarian (although I am a civil libertarian). Thus, I do not regard the fact that our Constitution's lawmaking apparatus often preserves regulations as inevitably problematic. Veto gates preserve federal laws I like (such as the environmental laws), not just ones I dislike (such as the federal marijuana prohibition). The takeaway is simply that readers should be skeptical of libertarian rationalizations of the U.S. Constitution.