The Peoples’ Constitution: Marijuana and Federalism

By Ben Lenhart

A battle rages in America over marijuana laws. On one hand, more than half of the states have legalized marijuana for medical or recreational use (or both). However, marijuana remains strictly illegal under federal law, with stiff penalties for violations.

In January, Attorney General Jeff Sessions—citing the need for “Rule of Law”—reversed an Obama-era policy that had discouraged federal prosecution of certain marijuana offenses.  Congress is bitterly divided over the issue. In short, there is widespread disagreement on how to regulate marijuana in America. While the “marijuana war” shows no sign of a quick solution, it provides a powerful example of one or our core Constitutional principles: federalism.

Federalism: A Short History

When the founding fathers began writing the new Constitution in 1787, they were buffeted by competing forces. Pushing in one direction was a theme from the bloody Revolutionary War: Americans wanted local control over government, not a distant power ruling their lives. Pushing the opposite way: the failure of the Articles of Confederation (America’s first constitution), which foundered after only a few years in large part because they created a central government that was too weak to govern. In debating ratification, the “Federalists” supported the new Constitution with its stronger Federal government, while the “Antifederalists” largely opposed it, partly because they felt it created a central government that was too strong and left the states weak and vulnerable.

Boiled down to its essence, the “Federalist/Antifederalists” debate over the Constitution was not about whether there should be a sharing of power between state and federal governments— that is, it was not a debate about whether America should have federalism—but rather how to strike the “right” balance of power within federalism. Amazingly, this debate remains as active and vibrant today and it was back in 1787. On many issues—abortion, gun control, and gay marriage, to name a few—one side argues that the issue should be “left to the states” to decide, while the other pushes for a federal solution. At bottom, these are often debates about the nature of federalism and balance of federal and state power. Marijuana supporters—echoing the cry of the Antifederalists—argue that the balance should tip back to the states and that marijuana regulation should be a local issue.

Federalism: National Marijuana Laws

Federal law is clear: under the Controlled Substance Act, marijuana use—both medical and recreational—is illegal, and penalties are severe (including long jail terms). Under President Obama, this law was softened by the “Cole Memo,” which discouraged federal prosecutors from pursuing prosecutions for marijuana use in states where such use was legal. But that policy was recently rescinded under President Trump. Congress has passed legislation—known as the Rohrabacher-Farr Amendment—that bars the Justice Department from spending funds to interfere with medical marijuana use in states allowing such use, but this amendment may soon expire. In short, marijuana remains illegal under federal law and efforts to alter that stance are uncertain.

Marijuana supporters challenged the federal ban on marijuana, arguing that the federal government lacked the power under the Constitution to regulate marijuana. They pointed out that the federal government is limited to its enumerated powers—a core Constitution principle—and the right to regulate marijuana is not listed in the Constitution. In Gonzales v. Raich, the Supreme Court rejected the challenge, holding that the federal government’s Constitutional power to regulate interstate commence was broad and extended to the regulation of marijuana. The dissent disagreed, and—mirroring the calls of the Antifederalist 200 years earlier—stated: “[Federal regulation of marijuana] stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently.”

Federalism: State Marijuana Laws

Despite the federal ban, approximately 30 states have now legalized marijuana in some form. But since the federal government has already criminalized marijuana, and since the court had already ruled that the federal ban is Constitutional, then do the states actually have the authority to legalize marijuana? The answer is twofold.

First, while the federal government is strictly a government of enumerated powers (and any new law must be based on one of those enumerated powers), most state governments have the opposite structure. Most state governments have open-ended or “plenary” power to regulate for the general welfare of their people. State governments are not limited by enumerated powers. This key difference—limited and enumerated federal power versus plenary state power—is a huge “federalism” win for the states, and helps ensure that states will not come out on the short end of the federal/state power struggle. Perhaps anticipating the arguments of the Antifederalists, the Founding Fathers did not include an open-ended “general welfare” power among the powers of the new federal government. As James Madison put it in Federalist #45: “The powers delegated by the proposed Constitution to the Federal government are few and defined. Those which are to remain with the States are indefinite and numerous.”

The upshot is that, for most of us, state laws have a greater impact than federal laws on our daily lives: family law, most criminal laws, traffic laws, zoning and property laws, and contract law (to name a few) are examples of areas largely governed by the states. Given the states’ plenary power to regulate for the general welfare, a state can legalize marijuana if it believes that serves the best interests of its people. And such a law will prevail within the state—except for one key issue, which we turn to next.

Second, the Constitution’s Supremacy Clause states that federal laws, so long as they conform with the Constitution, are supreme over conflicting state laws. Thus, if federal prosecutors charge a marijuana user in California (a state with legal marijuana) with violation of federal law, it would be useless for the defendant to claim that he can’t be prosecuted by the “Feds” because marijuana is legal in California. The state law must give way to the “supreme” federal law. Two hundred years ago, Chief Justice John Marshall described it this way: “the government of the Union, though limited in its power, is supreme within its sphere.”

In short, while state governments can legalize marijuana for purposes of state law enforcement, so long as marijuana remains illegal under federal law no person in those states is immune from federal prosecution for marijuana use.

Federalism: The Bottom Line for Marijuana

The courts have ruled that Congress has the power under the Commerce Clause to criminalize marijuana. But nothing in the Constitution requires Congress to do so. Unlike the great rights of free speech or freedom of religion—which Congress has no power to deny or terminate—Congress could pass a law tomorrow abolishing the criminalization of marijuana and giving it a protected legal status. Both the Cole Memo and the Rohrabacher-Farr legislation, described above, can be seen as partial steps in that direction. Federalism—and the eternal struggle between federal and state power—are front and center in this debate.  With more than half of the states favoring legalization, there is now talk in Congress of passing a new law that would send the issue back to the states and let each state decide for itself how to regulate marijuana. Such a move would echo the famous words of Justice Louis Brandeis, who said that the states serve as “Laboratories for Democracy,” with each addressing social issues in a way that best serves its own people.

Ben Lenhart is a graduate of Harvard Law School and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.

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