Breaking Badder: Can the feds prosecute marijuana offenses in states with legal pot?

March 15, 2018

United States Attorney General Jeff Sessions has a problem with pot. According to the Washington Post, “as far back as 1986, he joked that he thought the Ku Klux Klan ‘was okay until I found out they smoked pot.’” In 2016, he reiterated that, “good people don’t smoke marijuana.”

Notwithstanding that marijuana is illegal at the federal level, at least 30 states and the District of Columbia have legalized it for either recreational or medical use. Marijuana dispensaries in these states have invested a significant amount of time and money in growing (so to speak) their operations.

Recognizing the looming conflict between federal and state laws, the Obama Administration, pursuant to an August 2013 memo by then-Deputy Attorney General James Cole, called off federal prosecutors in states with legal marijuana businesses, except in cases such as distributing to minors or trafficking across state lines. In practice, the Cole Memo meant that working or investing in the marijuana industry carried little risk of federal prosecution.

But Jeff Sessions is not a fan of the Cole Memo and, presumably in the name of “good people” everywhere, he recently rescinded it, essentially siccing federal prosecutors on citizens and businesses in full compliance with their state’s laws.

Can federal prosecutors do this? Angel McClary Raich and Diane Monson will tell you, through hard experience, that they can.

In 1996, California legalized pot for medicinal use. Raich and Monson, two desperately ill California women, began using it. Neither was accused of selling it. Nonetheless, in 2002, officers of the Drug Enforcement Administration (DEA) and the local sheriff’s deputies swept down onto Monson’s property.


The deputies informed the DEA that Monson was acting legally under state law. The DEA countered that Monson was violating federal law. A three-hour standoff ensued, until the county gave up and the DEA destroyed Monson’s crop.  

Monson and Raich brought suit in federal court, seeking an injunction to stop this type of enforcement of federal drug laws. They lost, prompting me, for the first time in my legal career, to actually agree with Clarence Thomas.

In Gonzales v. Raich (2005), the majority of the Court held that federal prosecutors could pursue violations of federal controlled substance law even in states that legalize marijuana.  

The Court’s decision rests upon basic principles of federalism. The federal government’s laws trump the states’ conflicting laws, so long as the federal government is not exercising power outside the parameters of the Constitution. This is the Supremacy Clause. The Constitution authorizes Congress to enact laws that affect and regulate interstate commerce (the Commerce Clause), and laws that are necessary and proper to carry out and enforce valid federal laws (the Necessary and Proper Clause).

Essentially the Court held that, even though Monson and Raich were not alleged to have sold or purchased marijuana via interstate commerce, nonetheless Congress could regulate in-state activities that might have a substantial impact on the regulation of interstate commerce.  

The fact that neither Monson nor Raich had engaged in interstate commerce did not mean that other state residents might not attempt to. And, in any event, it would be difficult to distinguish between marijuana cultivated locally and marijuana grown elsewhere.  

Since the federal government had a “rational basis” to believe this, a federal prosecution would be constitutionally sound. Justice Antonin Scalia, who spent his career finding ways to make drugs and gays illegal, concurred with the majority. My hero, Justice Sandra Day O’Connor, along with Justices William Rehnquist and Thomas (?!) analyzed the issue of federalism differently.

O’Connor pointed out that, “[federalism] promotes innovation by allowing for the possibility that ‘a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.’”

Thomas emphasized that the decision “prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. It does so without any serious inquiry into the necessity for federal regulation...Our federalist system, properly understood, allows...States to decide for themselves how to safeguard the health and welfare of its citizens.”

None of the justices (save, perhaps, Scalia) seemed thrilled about the idea of prosecuting drug crimes in states where the drug is legal. As a matter of constitutional law, I agree with the dissent, but given how broadly the courts have allowed Congress to act under the Commerce Clause, I have to admit that the majority decision is sound, at least until the Court reins back Congressional authority or starts taking the Tenth Amendment seriously.

After this case, Congress prohibited the Justice Department from using federal funds to prosecute marijuana cases in states that have legalized medical marijuana. Jeff Sessions and some members of Congress have repeatedly fought this, and the prohibition might soon be on the chopping block when Congress works on the budget.

But other members of Congress, on both sides of the aisle, support legalizing pot, as do the majority of Americans. Congress, with its power of the purse, could defund federal prosecution in states that legalize marijuana. Congress could decriminalize it at the federal level, leaving it to the states to decide for their own jurisdictions.

In these times crying out for bipartisanship, possibly the only issue that can win support from both parties is leaving it to the states to decide whether marijuana is appropriate for their “good people.”

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