What the End of Prohibition May Look Like: Preemption and the Legalization of Marijuana

  • by Allen St. Pierre, Former NORML Executive Director July 13, 2012

    “What the End of Prohibition May Look Like”
    Authored By Justin Butler
    NORML Legal Intern
    J.D. Candidate, George Washington Law School, Spring 2013

    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.

    49 responses to “What the End of Prohibition May Look Like: Preemption and the Legalization of Marijuana”

    1. Don says:

      First of all, it is not the Federal Government any more, it is the Federal Nazi SS, Just look at the recent raids in California among the other States that have passed laws Legalizing for Medical purposes.
      Second of all, They could care less about the Constitution and Bill of Rights, As Bush once said and I quote ” It`s just another Goddammed piece of paper”, That`s a Republican for you,
      Third, We the People NO longer decide what is best for ourselves through the Voting process, The Corporations decide and pad the pockets of our Government officials and FIX the elections, Just look at how biased the Mainstream Media is, Guess who owns them – Corporate interests, How long has Gary Johnson been running as a Libertarian candidate for President? When was the last time you heard Fox news or CNN mention him? If it were not for the Internet, Virtually NOBODY would even know he existed, You bet it is time for a change, How far down the rabbit hole do we have to go before something actually get`s done?

    2. claygooding says:

      All we have to do is continue as we are,,the price of prohibition is climbing at an astrological rate,,a 33% increase in budget in 1 year and that was before Guatemala and Uruguay raised the ante,,now states moving towards legalizing both recreational and medical,,,each action tacks millions on the ONDCP budget,,as congress argues over which social programs to cut funding for to cover the rapidly expanding prohibition enforcement costs.

      Our economy is in the ditch and now the war on drugs is driving it,,,,

    3. Karen Thomason says:

      Good article. It’s the federal side we have to change. And it still amazes me that people think you just get a “slap on the hand for marijuana”. It’s just not true. Hundreds of thousands are imprisoned every year. Half are non violent. What a waste of resources.

    4. Gweedo says:

      “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.”

      SHUT UP! All this is going to do is encourage voters in those states to STAY HOME. “Well it won’t matter anyway” they’re saying.

    5. God's messages says:

      Finally, one push too many!

    6. adam says:

      I think that if Washington and Colorado legalize, it may turn into something far too big to keep down. At this point, the law is not the point – legal strategies are not the way, it is a war of attrition. The feds may act against Washington and Colorado, but if the states resist, what are they gonna do? They can’t arrest everyone, especially if the state police don’t cooperate with them. Even in California, there are still tons of dispensaries, despite federal attacks. And public opinion as well has switched sides. At some point, they will give. The only question is just where that point is.

      Barring a huge cultural jump to the right, it is only a matter of time – and by that I mean “less than a decade”. Though I will echo what someone else said, we need a real victory this election and not something like Prop 19, or it may be never!

      A lot of this has to do with international drug treaties as well… In any case, at some point, one party or the other will support it, and at some point, some president will have to go up and sign a bill that changes the federal laws. Honestly, I think it could be a winner, if done with the right tone – there is a speech in there that could look really good.

    7. Dave Evans says:

      I just read the paper. And no, congress does not have such authority. There is no such thing as, “well the words of the consitution say one thing, but mean another” ’cause you’re too stupid to know when we have stopped following the law.’ The constitution places limits on Federal powers which directly means that, no, the Commerce Clause does not grant such power to the Federal government. It doesn’t. Does one have brain damage in order to qualify as a jurist?

      If anything, it directs congress to “regulate”, therefore they are breaking the law by banning, which is the opposite of “regulating”.

    8. Baby Arms says:

      Let’s hold off on the nazi comparisons until they reach a minimum of one million jew kills, ok?

    9. Atlanta Toker says:

      We can also help ourselves by supporting South Americas legalization progams as well. We should also promote marijuana legal or not vigorously all over the country. The Silver Tour is a perfect example of what we need to be doing all over the country for the over 50 age group. These people need to be educated with the truth and told how to keep it quiet and how to make it available to their other retired friends. Once the retired community is aware of what the benefits truly are and what it really can do for them, they’ll support it and that will definitley help drive legalization.

      Im not so sure that as far as a campaign is concerned in the USA that that is not the very best one. Older people vote and they get involved in their communities. It might be a bridge between the elderly and the young in this country to show and help each other how to take back out communities as well as our country. Support “The Silver Tour” and promote it everywhere, help raise money for it and push this cause in your local retirement communities and churches. Our retired comunity will learn that pain can be alleviated by something natural and organic instead of those life taking pills pharmaceutical companies keep pushing at them.

      They will also recognize that once they use marijuana and find they can still function normally what a great medicine it truly is for our age group. Please, lets all help our retired community with this, it will be far better for them and they will recognize it immediatley. They will also realize that they have been lied to for the last 50 years, and they may very well hold a grudge or two : ) ….

    10. Cort says:

      Great article, I appreciated the reviews of Colorado and Washington’s referenda in Justin’s paper, and am looking forward to his views on Oregon’s measure 80. Having just read the measure, I foresee the federal government taking serious issue with the state of Oregon acting as a distributor of cannabis in the same way they act as a distributor of alcohol. Although, I did like that the last section that added severability also stated:

      “If any law or entity of any type whatsoever is held to impede this chapter’s full effect, unimpeded provisions shall remain in effect and the impeded provisions shall regain effect upon the impediments removal.”

      It implied to me that the author(s) realized some parts of this referendum would be in conflict with federal laws, and even so, wanted to plan for a future of federal deregulation of cannabis.