Remarks from a Trump spokesman that the new administration might want legal recreational marijuana sales to end in several states could start a new controversy over the boundaries of federal power.
“When you see something like the opioid addiction crisis blossoming around so many states … the last thing we should be doing is encouraging people,” Sean Spicer told the media on Thursday. “There is still a federal law we need to abide by in terms of when it comes to recreational marijuana and other drugs of that nature.”
The legal sale of recreational marijuana is something “the Department of Justice, I think, will be further looking into,” Spicer said, adding that the Trump administration had no interest in enforcing federal laws against medical marijuana.
Currently, eight states have approved the controlled legalized sales of marijuana after state voters directly approved the measures. The District of Columbia also legalized the recreational use of marijuana, but not sales. In addition, 28 states and the federal district have legalized medical marijuana.
Recreational and medical marijuana use is still illegal nationally under the Controlled Substances Act and it is listed under the Schedule 1 list of drugs, along with heroin and LSD. In the end, Congress has the power to change that classification, but it hasn't acted to do so.
There was an immediate reaction from legal marijuana states after Spicer’s comments. Washington Attorney General Bob Ferguson, who is already in court fighting the Trump administration’s immigration ban executive order, told the Seattle Times that, “I will resist any efforts by the Trump administration to undermine the will of the voters in Washington state.”
Ferguson and Washington Governor Jay Inslee formally notified the Justice Department on February 15 that they wanted to meet with federal officials before any changes were made to directives from the Obama administration, which made federal prosecution of marijuana use within states a low priority.
“Given the limited resources available for marijuana law enforcement, a return to ‘full’ prohibition’ is highly unlikely to end the illicit production, trafficking and consumption of marijuana,” they said. Inslee and Ferguson also quoted Supreme Court Justice Louis Brandeis, saying that the eight states are serving as “laboratories of democracy.” And they reminded the department that Washington’s law was “adopted by [an] initiative of the people.”
The conflict between state laws that allow limited marijuana use and the federal law that bars it, in theory, falls somewhere in the domain of the Constitution’s Supremacy Clause, which reads in part that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; …, shall be the supreme Law of the Land.” Some states-rights supporters argue that the 10th Amendment, which grants rights to the states and the people not reserved to the federal government, allows for states to choose their own marijuana laws and how the laws are enforced by state and local law enforcement officers.
To be sure, any widespread federal effort to enforce legal recreational marijuana laws, through the prosecution of growers, shippers and retailers allowed to handle marijuana under state laws, would face considerable financial and logistical hurdles. These federal efforts also could likely require local law enforcement to take part.
And those factors also would likely cause the courts to get involved in trying to clarify the conflict between federal and state laws about marijuana.
Last March, a similar case came to the Supreme Court for consideration. In an original jurisdiction lawsuit, Nebraska and Oklahoma v. Colorado, Nebraska and Oklahoma asked the Court to rule on the legality of parts of Colorado’s legalized marijuana law.
The two states contended the Supreme Court was the only venue where they could seek relief under the Constitution’s Supremacy Clause. Nebraska and Oklahoma didn’t ask that Colorado's now-legal personal marijuana use stop or Colorado go back to its previous laws that prosecuted marijuana use as a crime in the state. Instead, the two states wanted Colorado’s plan disallowed for commercial growing and distribution of marijuana with the state.
Then-Solicitor General Donald Verrilli filed the Justice Department’s legal opinion, and it supported Colorado in the court briefs. Verrilli said allowing the lawsuit to proceed would allow states to force other states to conform to federal laws as they interpret them. “Such a broad invitation to invoke this Court’s original jurisdiction to resolve myriad preemption questions would not comport with the Court’s traditional insistence that original jurisdiction be exercised only ‘sparingly,’” Verrilli said.
Without comment, the Supreme Court refused to hear the case. Justice Clarence Thomas offered a dissent, arguing that the case was a good one for the Court to consider as a way of understanding its role in settling disputes between states.
“I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint,” Thomas said.
Thomas didn’t offer an opinion on the legal fight about marijuana but he wanted to hear more. “Whatever the merit of the plaintiff States’ claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation,” he concluded.
Scott Bomboy is the editor in chief of the National Constitution Center.
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