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.