Bench Memos

Re: Tokin’ Federalism

Jonathan Adler’s response to my original post makes two points and I’ll take them each in turn.

1.  Jonathan takes the Obama administration’s announcement of nonenforcement of the marijuana laws in the medical-marijuana states as analogous to 27 U.S.C. 122, under which “it is against federal law to transport alcoholic beverages into a state in violation of state law.”  I don’t think the two cases are parallel at all.  The law Jonathan cites is one in which Congress has fashioned federal law deliberately to vary according to applicable state law on the same question (and this particular example is a direct legislative implementation of the terms of Section 2 of the 21st Amendment).  By contrast, the Controlled Substances Act under which marijuana possession and distribution are criminalized is intended by its terms to have uniform meaning and application nationwide.  There’s a large difference between Congress conforming federal policy to diverse state laws, and Congress establishing uniform policy notwithstanding diverse state laws, only to have the executive announce that it plans to frustrate that statutory uniformity wherever states have chosen to legislate opposing policies–an announcement that runs contrary to the supremacy principle of the Constitution.

2.  I have trouble buying the “it’s just prosecutorial discretion” line of argument.  Yes, the exercise of such discretion need not be totally ad hoc and case by case, but might be usefully guided by sound public policy choices.  But to be truly prosecutorial discretion (not thinly disguised legislating), those policy choices ought to be keyed to truly prosecutorial considerations.  Enforcement resources matter, as do considerations of the magnitude or triviality of harms.  The prospect of bringing victorious prosecutions is no small consideration as well.  There are 14 states legalizing some medical use of marijuana, and 36 states not doing so.  I have difficulty believing that resources to prosecute, or the magnitude of harm, or the prospects of success in prosecution, weigh more heavily against the choice to prosecute in the 14 states than in the 36.  It is impossible not to notice that the only decisive difference between the two prosecutorial environments is that in one set of states the legislatures have decided to pass laws that are concededly trumped by contrary federal law under the supremacy principle.  And precisely where federal law has been challenged–and vindicated four years ago by the Supreme Court–the Obama administration has decided to cave.

Postscript: An alert reader reminds me that the equal protection clause, by its terms, does not apply to the federal government.  This is true, and on my own more alert days I have been known to point this out.  But the principle of equal protection has long been held (rightly or wrongly) to bind the federal government no less than the states.