“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

– The Supremacy Clause, U.S. Const. art. VI, cl. 2

In Gonzales v. Raich (2005), the Supreme Court of the United States held that Congress has the power to regulate the use of homegrown marijuana because of the Commerce Clause. The Court reasoned that some of the homegrown substance would likely be sold in an illicit interstate market, thus “frustrat[ing] the federal interest in eliminating commercial transactions in the interstate market.” Therefore, Congress can regulate not only the distribution, but also the growing of marijuana, within a state, pursuant to the Controlled Substances Act (CSA), which considers marijuana a Schedule I drug. However, it is well known that Congress “lacks authority to require states to criminalize conduct that the states choose to leave unregulated, no matter how explicitly Congress directs the states to do so,” Emerald Steel Fabricators v. Bureau of Labor and Industries (2010). Therefore, the question is does a “law stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress?” Hines v. Davidowitz (1941).

Legalization of Marijuana 

In November, measures in Colorado and Washington to legalize the use of marijuana passed. This has created a sticky situation for the federal government, because it could sue on the grounds that any state effort to regulate marijuana is preempted by federal law, specifically the CSA. Jenny A. Durkan, a United States attorney in Washington, warned residents that the drug remained illegal despite the passage of Washington Initiative 502, because the CSA effectively trumps state law. I agree with this interpretation wholeheartedly.

The decision in Emerald Steel Fabricators found that “Congress has the authority under the Supremacy Clause to preempt state laws that affirmatively authorize the use of medical marijuana.” Following this logic, if the measures in Colorado and Washington “affirmatively authorize” the use of marijuana, or any other drug covered under the CSA, they should be found unconstitutional.

Washington Initiative 502 clearly authorizes the use of marijuana, as it states “this measure removes state-law prohibitions against producing, processing, and selling marijuana… [and] allows limited possession of marijuana by persons aged twenty-one and over.” The State of Washington further affirms the legality of marijuana distribution and possession by imposing a “25% excise tax on wholesale and retail sales of marijuana.” The state’s issuance of a marijuana producer’s license can also be considered an “affirmative authorization” of the use of marijuana, thus making Washington Initiative 502 unconstitutional. In Colorado, Amendment 64 encounters the same sort of constitutional problems. The amendment provides “licensing of cultivation facilities, product manufacturing facilities, testing facilities, and retail stores” and requires “an excise tax to be levied upon the wholesale sales of marijuana.”

In Emerald Steel Fabricators, Judge Kistler wrote, “If Congress chose to prohibit anyone under the age of 21 from driving, states could not authorize anyone over the age of 16 to drive and give them a license to do so.” Well, Congress has said no one may use or distribute marijuana, yet Colorado and Washington have both decided to provide licenses to people to do just that. These measures legalizing marijuana are unconstitutional and the federal government needs to assert its authority so that states don’t forget about the Supremacy Clause and the preemption of state laws by federal legislation.

Medical Marijuana 

Medical marijuana is also a contentious issue. Currently, eighteen states and D.C. allow the use of medical cannabis. Ever since the U.S. Supreme Court refused to review Garden Grove v. Kha (2007), a California state appellate court decision from November 28, 2007 that ruled that “it is not the job of the local police to enforce the federal drug laws,” proponents of marijuana legalization have argued that the CSA doesn’t preempt medical marijuana in states that allow it.

The problem with this interpretation is that it forgets about the “affirmative authorization” that states provide when issuing licenses for medical cannabis distributors and consumers. This “obstacle” to the execution of the CSA is seen in every state that allows the use of medical cannabis. For instance, the Colorado Department of Public Health and Environment issues identification cards to those who they deem needing of marijuana for medical purposes. This policy, which is part of Colorado’s medical cannabis law, is unconstitutional. Rhode Island’s licensing of “compassion centers” – places cannabis is grown and dispensed – is similarly unconstitutional. Because states regulate medical marijuana use with permits, which authorize the use of a Schedule 1 drug contrary to the CSA, their medical marijuana laws are preempted by federal law.

The Federal Government’s Options 

Since the CSA makes marijuana illegal at the federal level, any federal authority, be it Border Patrol or DEA or FBI, can make an arrest in any state if they catch a person in possession of it. So, federal prosecutors could bring a case forward in hopes of having a judge find in their favor and declare the state law preempted. This is more likely than the Justice Department filing lawsuits against the states directly, since President Obama does not feel that this situation needs to be addressed.

The government could also cut off federal grants to states that refuse to comply with the CSA. Until the marijuana legalization measures are repealed, the states will suffer for challenging the federal government’s authority. This would send an overall message to the states that the Supremacy Clause is alive and well, but the Obama Administration doesn’t seem to support sending these sorts of messages.

The federal government could also sit back and watch legal hilarity unfold at the state level. In Colorado, for instance, Arapahoe County District Court Judge Charles Pratt found that because marijuana sales are illegal under federal law, the contract between a dispensary and its suppliers was void, as “contracts concerning illegal activities are invalid.” In other words, the dispensary just stole thousands of dollars of pot from its suppliers, but in a legal manner. Judge Pratt further concluded that, “Any state authorization to engage in the manufacture, distribution or possession of marijuana creates an obstacle to full execution of federal law,” meaning that Colorado’s state law is preempted by federal law.

If a state law stands in the way of the “execution of the full purposes and objectives” of a federal law, then the federal law preempts the state law in accordance with the Supremacy Clause. As Congress has the right to regulate medical, homegrown, and illegally distributed marijuana, state laws like those in Washington and Colorado are unconstitutional because they hinder the execution of the CSA. They do this by issuing licenses to distribute marijuana and by taxing it, thus affirming its legality. Giving permits to medical marijuana users and dispensers also authorizes them to break federal laws. Therefore, the most a state can do to legalize marijuana is to pass a measure agreeing to not jail people for using or selling it. Once a state begins to regulate it, it effectively authorizes its use, which is unconstitutional. In other words, states may allow people to use marijuana, but they may not issue permits or licenses, set age limits, or tax the sale of the drug. The only other option besides total deregulation or following federal guidelines is for two-thirds of the states to call for a convention and propose an amendment authorizing its sale and consumption, and then for three-fourths of the states to ratify the amendment pursuant to Article 5 of the Constitution.

Adam Ondo | University of Rochester | @JoplinMaverick