Comments from a GOP presidential contender and a federal judge have put the issue of states legalizing marijuana back on the constitutional front burner.
As many people know, four states and the District of Columbia have passed laws to make recreational pot use legal under certain circumstances. And 23 states and the federal district have legalized marijuana for medical use.
However, 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.
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.
Article VI of the Constitution states that, "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."
That hasn’t gone unnoticed by presidential contender Chris Christie, who is on record as being opposed to legalized recreational marijuana use.
In a radio interview this week, Christie said he would try to stop states that legalized recreational marijuana use. (New Jersey legalized medical marijuana before Christie became governor.)
“I will crack down and not permit it,” Christie told Hugh Hewitt. “We have an enormous addiction problem in this country. And we need to send very clear leadership from the White House on down through the federal law enforcement. Marijuana is an illegal drug under federal law. And the states should not be permitted to sell it and profit from it.”
Pro-marijuana folks had high hopes that a federal judge this week would grant a ruling that would have taken marijuana off the Schedule 1 list of controlled substances.
But U.S. District Judge Kimberly J. Mueller, who held five days of hearings last year on the constitutionality of marijuana as a Schedule 1 drug, said on Wednesday that the problem needs to be addressed by Congress, according to people in her courtroom. (A written ruling wasn’t issued as of Wednesday night.)
And in a lawsuit brought by the state of Nebraska and Oklahoma last December, their attorneys general have asked the United States Supreme Court to rule on the legality of Colorado’s marijuana law.
The two states said the Supreme Court was the only venue where they could seek relief under the Constitution’s Supremacy Clause, arguing that “the federal government has preeminent authority to regulate interstate and foreign commerce, including commerce involving legal and illegal trafficking in drugs such as marijuana.”
Colorado then asked the Supreme Court to ignore the suit as unrealistic.
“[Nebraska and Oklahoma] suggest that the federal government will backfill the resulting regulatory vacuum, even though the Presidential Administration has indicated it lacks the resources and the inclination to fully enforce the federal marijuana ban; Congress has partially endorsed the Administration’s non-enforcement policy; and the States have, for the last four decades, carried out the vast majority of marijuana enforcement across the country,” said Colorado Attorney General Cynthia Coffman in March.
Back in August 2013, U.S. Attorney General Eric Holder issued enforcement guidelines to federal prosecutors and the Justice Department that effectively allowed legalization laws in Colorado and Washington to proceed, under certain conditions. Holder’s critics argued that the Justice Department’s reluctance to enforce the federal marijuana laws didn’t square with the Supremacy Clause’s intent.
At least one prominent legal expert discounts the Supremacy Clause argument, as it was made in the December 2014 lawsuit. Georgetown University law professor Randy Barnett told the Los Angeles Times in February that the reasoning wasn’t compelling.
"This is a very weak claim. Their real beef is with the federal government for not enforcing the federal drug laws," Barnett said. "It is not up to the states to sue each other when the federal government is not enforcing the law."
However, the argument could be welcome to at least one pair of ears on the Supreme Court. In October 2014, Justice Antonin Scalia was asked about Colorado’s marijuana legalization at an event in Boulder, Colorado.
“I’m not going to respond to that because it would force me to have to recuse myself,” Scalia said in a joking manner, but he added, “the Constitution contains something called the Supremacy Clause.”
Another answer to the constitutional question could be for Congress to change the Controlled Substances Act to lessen the federal penalties for medical marijuana possession. But given the current political climate, that is seemingly a long shot at best.
Also in theory, President Obama could instruct Attorney General Holder to move to reschedule marijuana, but as of 2014, Obama said he believed Congress should address the issue.
And an analysis from the Brookings Institute in February said a possible roadblock would be the United States obligations under international law to keep marijuana as a Schedule 1 drug, as a recreational-use drug. Medical marijuana use could be more permissible under treaty obligations.
Scott Bomboy is the editor in chief of the National Constitution Center.
