From the Pew Trust: Report: No Easy Options for Feds in Legal Marijuana States
The federal government may not have much choice but to continue its mellow attitude toward legal marijuana in Washington and Colorado.
New laws legalizing recreational marijuana use in Washington and Colorado probably fall under the states’ “power to decide what is criminal and what is not,” according to a new report from the Congressional Research Service (CRS). The report analyzes court precedent and lays out what the Justice Department and the Obama administration might do to enforce federal law now that several states have passed marijuana laws that contradict it.
The agency’s conclusion: The feds face an array of unappealing options.
Here’s the report: State Legalization of Recreational Marijuana: Selected Legal Issues (pdf)
As you may know, the Congressional Research Service is the entity that Congress turns to for detailed policy and legal analysis.
Here’s the key:
In Section 708 of the CSA (21 U.S.C. Â§903), Congress specifically articulated the degree to which federal law was to preempt state controlled substances laws. This express preemption61
provision recites language that evokes the principles of conflict preemption, stating,
No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.62
Notably, the provision clarifies that Congress did not intend to entirely occupy the regulatory field concerning controlled substances or wholly supplant traditional state authority in the area. Indeed, Congress expressly declined to assert field preemption as grounds for preempting state law under the CSA. The Supreme Court has stated that this provision suggests that Congress â€œexplicitly contemplate[d] a role for the States in regulating controlled substances.â€63 As such, the preemptive effect of the CSA is not as broad as congressional authority could have allowed. States remain free to pass laws relating to marijuana, or other controlled substances, so long as they do not create a â€œpositive conflictâ€ with federal law, such that the two laws â€œcannot consistently stand together.â€
This is crucial, and why the Feds can’t simply overturn the Colorado and Washington laws, for example (or any of the medical marijuana laws, either). The states, of course, have to dance a bit of a fine line to make sure they don’t implement laws in a way that conflict with federal law, but the mere notion of the state having a different way of dealing with marijuana than the federal government is not a problem. In this instance, the CRS actually mentioned an Amendment that you rarely hear having any power:
Under both Tenth Amendment and preemption principles, federal and state courts have previously held that a stateâ€™s decision to simply permit what the federal government prohibits does not create a â€œpositive conflictâ€ with federal law.85 As discussed above, under the impossibility prong of conflict preemption, the Supreme Court has specifically held that so long as an individual is not compelled by state law to engage in conduct prohibited by federal law, then simultaneous compliance with both laws is not â€œimpossible.â€86
The CRS also explains why international treaties do not overturn state legalization laws.
It is well established that treaties, like federal statutes, may preempt conflicting state laws. The Supremacy Clause expressly provides that in addition to federal law, â€œall treaties made … under the authority of the United States, shall be the supreme law of the land.â€138 Therefore, a state law is generally preempted to the same degree whether it is in conflict with a federal statute or an international treaty obligation. However, not all treaties are accorded â€œautomaticâ€ preemptive effect.139 Only where a treaty â€œconstitute[s] binding federal law,â€ without the â€œaid of any [implementing] legislative provision,â€ does it qualify as the â€œSupreme law of the landâ€ for preemption purposes.140 Such treaties are known as â€œself-executingâ€ treatiesâ€”meaning an international agreement with â€œautomatic domestic effect as federal law upon ratification.â€141 […]
…neither the Single Convention nor the other international drug control treaties appear to be â€œself-executing.â€ Each treaty requires the signatory nation to give legal effect to the goals of the treaty through domestic implementing legislation. The provisions of the treaties do not themselves establish binding domestic law. The United
States, for example, implemented the obligations of these treaties through the CSA.145 Because these treaties do not create binding law â€œof [their] own force,â€ it would appear unlikely that a U.S. court would accord the treaties direct preemptive effect.146
So where does this leave the feds? They can use their limited resources to arrest and seize whomever they can get their hands on. They can tie marijuana to other federal laws — gun possession, public housing occupancy, employment drug testing, etc.
None of these options will achieve the overturning of state laws. And their pettiness will turn individuals further against the federal government.
Or… the federal government could listen to the states, and to the people.
Just a thought.