What the End of Prohibition May Look Like: Preemption and the Legalization of Marijuana
This upcoming November, voters in Washington and Colorado will go to the polls to decide whether marijuana should be totally legal in their respective States. But will it matter? After all, cannabis consumers and retailers in the 17 states that have legalized medical marijuana are still subject to harassment and arrest from the federal government. The threat of federal action has halted the implementation of recently passed medical marijuana programs in Delaware and Rhode Island, and has slowed the progress of other States’ efforts to ensure that sick patients have access to the medicine they need. In the first three years of the Obama administration, the federal government has participated in over 100 raids on medical marijuana dispensaries within states where medical marijuana is legal, even after promising shortly after assuming office that he would end federal raids on medical marijuana dispensaries that complied with state laws. If voters in Washington and Colorado decide to take the leap and legalize marijuana, we have no reason to expect, based on prior actions, that the federal government will let these voters express and enforce their popular will unimpeded.
To fix the system, we must first understand the system. This paper seeks to explain why the federal government has the power to ignore the democratic will of its citizens and to continue to enforce unjust laws on voters who have decided that the imprisonment of cannabis consumers is a waste of government resources and a threat to civil society. While to government’s power to regulate the economy isn’t new, this power was only “recently” (by legal standards) expanded to give the government the power to ban non-lethal drugs. After all, banning alcohol required an Amendment to the Constitution. Yet, less than 50 years later, the Supreme Court changed its mind and allowed the federal government to ban marijuana without state approval, much less a Constitutional Amendment.
This apparently tyrannical power-grab stems, not solely from overzealous law makers, but from the inherent structure of our constitutional government. There are certain explicit provisions in our Constitution, such as the Supremacy Clause, Commerce Clause, and Necessary and Proper Clause, that the Supreme Court has seized upon to allow the federal government to override the legislative wishes of individual states in the course of setting federal policy. The first half of this paper provides a detailed overview of the powers provided to the federal government by the Constitution, and how these powers have been construed in recent times to allow the government to completely ban the possession, use, production, and sale of marijuana.
The federal government’s power in this arena is not unlimited, however, and there are certain actions marijuana reformers can take to help prevent this crackdown as they pen future marijuana legalization ballot initiatives. The second half of this paper explains how, through proper legal drafting, reform activists can limit the ability of the federal government to strike down or limit the effectiveness of state marijuana initiatives.
If you would like to learn more on the subject of how the powers of the federal government operate to curtail your ability to consume cannabis, and how we can correct this injustice through the power of democracy, then this paper is for you. July 13, 2012