Marijuana: State and Federal Conflicts in the New Prohibition

By: Orie Enav

On January 2, 2014, Colorado marked the first day of regulated trade in Marijuana.  Following a state-wide referendum, only specially licensed vendors may sell the previously controlled substance according to strict limits to those over 21 years of age.  Washington has adopted a similar piece of legislation.  Colorado and Washington are the first states to completely legalize marijuana, but the sale of the drug for medical use has been available for some time in many states.  The arguments in favor of and against this initiative are myriad, and have been amply covered by almost everyone.  The reason Marijuana has overcome the bans and controls imposed by governments, is because of an increasing belief that it poses little risk of health consequences or addiction.  Uruguay has completely legalized the drug recently, arguing that federal regulation is preferable to criminal control over the market, not to mention the tax revenue potential.

However, Colorado and Washington are in a grey area when it comes to the law.  Federal law still prohibits the possession, use, purchase, sale, and cultivation of cannabis.  The power of the federal government, vested in Congress’ right to regulate interstate commerce, is unquestionable.  However, this power failed to pass muster when the prohibition of alcohol was challenged in the 1930s.  Furthermore, the Constitution declares federal law to supersede that of the states if they come into conflict.  How, then, may the state laws of Colorado and Washington survive any challenge to the federal government’s Marijuana policy?

In 1999, President Bill Clinton issued an Executive Order regarding the treatment of state laws that conflict with federal law by federal agencies.  This Order required agencies to abide by state laws only so long as the federal laws they violate do not have written within them a specific pre‑emption clause.  The Controlled Substances Act of 1970 (CSA) lacks such a clause.  The question is therefore whether Congress, in its mission to eradicate marijuana, intended for the CSA to preempt state law that contradicts it.  If Congress did intend that to be the case, statutory language to that effect is missing, and the federal agencies tasked with its enforcement are restrained from acting to enforce the CSA by the Executive Order.  Enforcement of federal drug laws that pre-empt state laws seems exclusive to situations where the state law either creates a condition where individuals are required to violate the federal law or create an obstacle to congressional drug eradication.  This is the reason that states have been so careful in their writing of the legalization laws, by creating restraints of free trade and liberalizing other drug-related activities, to name a few.  For an excellent discussion of federal preemption of state drug laws, read Pre-emption under the Controlled Substances Act by Robert K. Mikos.  As is the case with many lackluster aspirational laws, the CSA’s greatest shortcoming is in its enforcement.

Even assuming that the Colorado law can stand, its formulation is poor.  The state has adopted a model from the Netherlands, where, in a bid to prevent drug tourism, the treatment of foreigners is different from that of locals.  In the Netherlands, the sale of cannabis to local citizens is unrestricted with the presentation of a residency card, while to citizens of other countries it is forbidden.  In Colorado, residents may purchase an ounce, which is four times as much as non‑residents.  The European Union has challenged the Netherlands’ rule, but the case has yet to be resolved.  Since the European Union increasingly resembles the United States federal system, legislators in Colorado should watch the European Court of Human Rights with great interest.  Here in the United States, the Equal Protection Clause prohibits disparate treatment of citizens from other states, and applies broadly.  Colorado’s policy is suspect on those grounds, and may be vulnerable to challenge.

As momentum grows towards legalization, Congress will have to decide whether it tries to stem the flood through federal enforcement, or is swept up by the tide by adjusting the CSA.

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