Bench Memos

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Tokin’ Federalism


I can’t quite get my head around the NR editors’ mixed reaction to the Obama Justice Department’s decision to cease “prosecuting medical-marijuana users and distributors who are acting in accord with state laws.”  My reaction to it is quite unmixed: I think it’s a terrible idea.  Apart from any questions regarding the medical utility of marijuana, or the matter of the drug’s prohibition more generally–on which I disagree with NR’s long-stated position but have no claim to know much–I think there is a constitutional anomaly lurking in the Obama administration’s choice here.

By announcing the non-prosecution of marijuana cases only in those 14 states that legalize some use of the drug for medical purposes, the administration has effectively proclaimed that federal law means one thing in those 14 states, and something else in the other 36.  That could readily give rise to equal protection claims in the 36 states where the federal government still considers itself free to prosecute.  I don’t think they’d be frivolous claims.  This is not, properly speaking, a matter of prosecutorial discretion, but an announced public policy choice about the applicability of a criminal statute in some places but not others.

Worse, by conditioning the prospect of prosecution on the presence or absence of state laws that contradict a nationwide federal prohibition, the Justice Department has effectively subjected the validity of federal law to the will of state legislators.  This turns one of the most important principles of the Constitution–the supremacy principle expressed in Article VI–on its head.  It’s not up to the states to be flipping switches that turn federal statutes on and off within their jurisdictions.  In the 2005 Gonzales v. Raich case, the Supreme Court decided that federal prosecutions were still lawful in California in cases where the defendants were acting in accord with the state’s medical marijuana law, and even in cases where no “interstate” transaction had occurred.  Some conservatives didn’t like the ruling (I do not include myself among that number), but I wonder if any of them considered that a contrary outcome in the Raich case would have looked an awful lot like what the Obama administration has now done–establishing a patchwork of enforcement here and nonenforcement there, with federal law inferior to state law.  That isn’t remotely like the federalism the Framers created.

If this is a prelude to relaxation of federal marijuana prosecution nationwide, I wouldn’t be at all surprised.  But the way to do that is to go to Congress with a proposal to change the law.  This way evinces Professor Obama’s usual respect for the Constitution: he rolls his own.


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