How will the Supreme Court’s recent decision about sports betting influence conflicts between federal and state laws? One area where it directly could see an impact is in the areas of regulating medical and recreational marijuana use.
The Court’s 7-2 majority decision in Murphy v. NCAA reinforced, in a big way, a constitutional concept called the anti-commandeering doctrine in regard to a federal law - the Professional and Amateur Sports Protection Act (or PASPA) - that blocked legalized sports gambling in New Jersey.
The 10th Amendment reads that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since 1976, several Supreme Court decisions found it was the amendment’s intent to limit the ability of the federal government to “commandeer” state officials or a state legislative process.
Justice Samuel Alito’s majority decision in the Murphy decision emphatically restated those concepts about federalism. Alito said precedent clearly showed that Congress couldn’t dictate to the state governments how to conduct their business. “The anti-commandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States,” he said. “Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anti-commandeering doctrine simply represents the recognition of this limit on congressional authority,” he added.
Alito cited two precedents. In New York v. United States (1992), Justice Sandra Day O’Connor said that a federal waste-management law "would 'commandeer' state governments into the service of federal regulatory purposes and would for this reason be inconsistent with the Constitution's division of authority between federal and state governments." And in Printz v. United States (1997), Justice Antonin Scalia said that a federal gun control law that forced local law enforcement to perform hand-gun background checks went against the 10th Amendment’s principles. “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program,” Scalia said. “Such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Shortly after the Murphy decision was announced last week, legal commentators saw its potential impact on the actions of some states to legalize medical or personal marijuana use.
Our own Lyle Denniston wrote that the decision raised doubts “about the power of the federal government to stop states from allowing medical or even recreational use of marijuana.” SCOTUSblog’s Amy Howe drew a similar conclusion: “Challenges to the federal government’s recent efforts to enforce federal marijuana laws in states that have legalized the drug for either recreational or medical use may also be based on the 10th Amendment.”
The CATO Institute’s Ilya Shapiro saw the Murphy decision as reinforcing several potential states-rights issues. “Indeed, as important as Murphy v. NCAA is for the gaming industry, the reason this case was so closely watched is because of its implications on so many areas of policy that have revealed federal-state tensions of late. From environmental regulation to sanctuary cities, marijuana to guns, states are flexing their sovereign muscles in a way that strengthens our body politic,” he wrote on CATO’s blog.
And Georgetown Law professor Randy Barnett, who argued a major case about marijuana at the Supreme Court, Raich v Gonzales, said on his Twitter account that “this is entirely different than Raich, which did not authorize Congress to tell California what its medical marijuana policy must be. But it does suggest that state schemes actively regulating marijuana (like CA & CO) are safe from a preemption challenge.”
Currently, eight states have approved the controlled legalized sales of recreational marijuana after state voters directly approved the measures. The District of Columbia also legalized the recreational use of marijuana, but not sales. In addition, 30 states and the federal district have legalized medical marijuana.
What is unclear is how the Court’s latest decision on anti-commandeering will affect Justice Department efforts to control the use of a substance still illegal nationally under the Controlled Substances Act. Back in January 2018, the Justice Department rescinded an Obama-era memo on that deprioritized federal marijuana prosecutions in states that have legalized the drug.
Attorney General Jeff Sessions’ one-page memo instructed United States Attorneys to ignore guidance from 2013 that department resources should be limited in the criminal prosecution of marijuana users and state-approved growers in states where marijuana is legal.
The 2013 policy change, known as the Cole memo, focused federal attorneys on pursuing cases against people who sold marijuana to minors, took part in interstate trafficking, were members of criminal gangs, or used federal property for marijuana purposes. It delegated other enforcement of marijuana laws to state and local officials.
“This return to the rule of law is also a return of trust and local control to federal prosecutors who know where and how to deploy Justice Department resources most effectively to reduce violent crime, stem the tide of the drug crisis, and dismantle criminal gangs,” Sessions said. There was no mention in the Sessions memo about how the U.S. attorneys should deal with marijuana production and sales where it is legal for recreational and medical use under state law.
Scott Bomboy is the editor in chief of the National Constitution Center.
