Clarifying Federal Law on Marijuana…U.S. Can Insist that it is Illegal, but Can’t Force States to Enforce the Law

Monday, November 19, 2012

The looming fight over legalized marijuana may not be as one-sided as some initially believed, according to a report recently released by the Congressional Research Service (CRS) regarding the related issue of marijuana use for medical purposes, which 18 states and the District of Columbia have authorized as a matter of state law despite a federal prohibition of marijuana use for any purpose.


The pot wars have now opened a new front, as voters in Colorado and Washington recently legalized the possession of small amounts of marijuana whether used for medical or purely recreational purposes. As AllGov has reported, so far the Obama administration seems committed to continuing the war on pot by declaring that the federal prohibition on weed, in place since 1937, preempts state laws that purport to legalize marijuana. That would not be the end of the story, however.


Although the Supremacy Clause of the Constitution explicitly makes federal law supreme over state law, limits to federal power to force states to toe the line, especially the Tenth Amendment to the Constitution, give the states substantial leverage in resisting federal uniformity. The Tenth Amendment states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”


The courts understand the Tenth Amendment as a key text of American federalism, and have held that it prevents the federal government from mandating that states support or participate in enforcing federal law. Thus Congress may not compel states to enact prohibitions of marijuana (or any other drug) and cannot force state or local police to enforce federal law on pot possession.


The problem for the federal government is that it does not have the resources to fight a war on pot possession by itself, not in two medium size states and certainly not nationwide, given that there are about 750,000 marijuana possession arrests in the U.S. every year. With respective populations of 5.1 and 6.8 million, Colorado and Washington annually see about 12,000 and 16,000 pot arrests. The Drug Enforcement Administration (DEA), which is the leading federal drug law enforcer, has only 5,500 field agents, while the FBI has 15,000, few of whom work on drug prohibition.


The bottom line is this: the Obama administration may want to take a hard line by declaring Colorado and Oregon’s marijuana possession laws preempted, but it cannot order local police to enforce the federal prohibition and it lacks the resources to do so itself. The result of a hard line federal policy could thus backfire by creating a situation in which the states are prevented from regulating marijuana as a legal substance while the feds are unable to enforce prohibition, creating an anarchic situation that could be exploited by criminal elements. Realizing this, the states may be able to negotiate more breathing room with the federal government.

-Matt Bewig


To Learn More:

Medical Marijuana: The Supremacy Clause, Federalism, and the Interplay Between State and Federal Laws (by Todd Garvey, Congressional Research Service) (pdf)

Marijwhatnow? A Guide to Legal Marijuana Use In Seattle (by Jonah Spangenthal-Lee, Seattle Police Department)

Washington and Colorado Brace for Clash with Obama Justice Dept. over Legal Marijuana (by Noel Brinkerhoff, AllGov)

Obama Justice Department Set to Overrule any State that Legalizes Marijuana (by Noel Brinkerhoff, AllGov)

How to Buy Marijuana Legally in California (by Sidney Finster, AllGov)


Tyler 10 years ago
Jillian, Actually, since it is now constitutionally legal in CO to grow marijuana in your home, going after farms would not have that great of an effect. Yes, it might disrupt the regulated sale of cannabis, but would have no effect on the availability of it. And, since it is to be regulated as alcohol, there really isn't much bite to selling outside of the regulatory framework, and there is absolutely no bite to buying (since it is legal to possess, and no law against purchasing or attempting to purchase from a non-licensed individual). Local police are, even now, not enforcing rules against unlicensed sales, and I highly doubt that will change, no matter what the feds do.
kara 11 years ago
The system needs to change but unfortunately it's not going to. So instead of trying to change the system we need to change the players. We need to elect leaders based upon their stand on issues, not based upon looks,charm or color of their skin.
Joyce Clemons 11 years ago
There is Supreme Court Case law both on Fed Crime control/regulatory agencies being unable to commandeer state resources to enforce federal law,and the right of the fed to enforce the law even for small amounts for medical /compassionate use even if legal in the state, through the Commerce Power. Some little old lady got busted for one or two small plants in her bay window. She had glaucoma or something. Imagine a fed agent having nothing better to do than bust old ladies. No wonder our federal budget is so out of control. Just saying. Incidently, in spite of all scientific evidence to the contrary, commercial hemp is also banned as stringently as thc rich THC cannabis. Even though hemp has somewhere around 3% of the typical amount of the THC in cannibis sativa. I don't use pot, but given that George Washington grew enough hemp to make sails for the entire fleet, not to mention his incredibly durable war tent (on display at Yorktown VA in pristine condition)..well this is just one of myriad examples of stupid, irrelevant busy work we pay for. Imported hemp linen is exquisite and incredibly comfortable and durable..the canvas is superior.
Jillian Galloway 11 years ago
The DEA would obviously target the marijuana farms. By killing the industry's legal supply they'd kill the entire legal industry. They wouldn't even need to go after all the marijuana consumers. Without a legal supply, consumers would return to the illegal street dealers and would be arrested by state police for violating state law (buying illegal marijuana). The big question is *why* does the federal government feel the need to keep marijuana illegal? If the American people don't want it illegal and the States don't want it illegal then who are a few hundred elected officials to tell us that it must be illegal? Alcohol legalization has worked incredibly well in this country and marijuana legalization will work just as well. We need to tell our legislators to legalize marijuana like wine and give people the right to switch from the more harmful drug, alcohol, to the less harmful drug, marijuana.

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