By Sam Singer
So a California assemblyman wants to make the Golden State the first to legalize marijuana, Governor Schwarzenegger is open to the idea, and pot enthusiasts across the state are elated.
Still, for some, the nagging question remains: What about federal law?
For these folks, I have good news and bad news, neither of which can be properly communicated without a detour through the muddy footpaths of preemption law. I’ll caution that as constitutional principles go, the doctrine of preemption is rather moistureless; it certainly doesn’t lend itself to stirring prose. With that said, feel free to stop along the way for a bong rip.
Beginning with what’s good, the legalization bill making its way through the state legislature likely will withstand a constitutional challenge. That is, California’s take on the criminal status of marijuana need not give way to contrary federal law. To understand why, it helps to think of the relationship between federal and state law in romantic terms. The relationship, which dates back more than two centuries, is hot and cold. There are occasions where the two bodies of law operate in learned harmony, like an elderly couple at a breakfast buffet. There are occasions where the two bodies are at odds and one – usually state law – must yield to the other. Then there are occasions, as here, where the two bodies can occupy the same field provided state law doesn’t disturb its federal counterpart.
How much room a state has to operate without disturbing federal law will depend on the area of regulation. In this last category, the scope of a state’s authority will vary by the field of regulation. With drugs, Congress, through language in the Controlled Substances Act (CSA), left the field wide open for state regulation, whether above or below federal levels. More precisely, a court will uphold a state drug law unless it “positively conflicts” with the CSA. Intuition points toward such a conflict here, where a state law proposes to legalize a substance prohibited under federal law.
But the doctrine of preemption doesn’t work that way. Rather, a court will ask whether it is possible for a private party to adhere to both laws at the same time. Deadlocks of this sort commonly arise when a state directive conflicts with a federal prohibition. In this sense, directives, which take the form of orders or affirmative commands, are to be distinguished from deregulations, which work with opposite effect. If instead of legalizing pot, California went further and required that each household smoke its per capita share, the state would have – among many others – a preemption problem. Otherwise, if a California law deregulates a field while creating no new duties or obligations, it likely will survive a preemption challenge.
The bad news is that California has no say over when and how the federal government enforces its own law. This may not trouble you now, during the tenure of a president who has expressed a philosophical opposition to the War on Drugs. But federal priorities change with the political winds. The Bush DEA made a point of periodically raiding medical marijuana dispensaries in California, as if to remind patients that federal law ultimately reigns supreme. The Obama administration put an end to those raids, but that’s no assurance that a successor with a puritanical streak won’t reverse course again. For lawmakers who look at California’s pot economy and see untapped tax revenue, the looming threat of federal enforcement should give reason for pause.
You may wonder why state and local police aren’t obliged to enforce federal drug law. If federal law is supreme, it stands to reason that federal authorities can insist on cooperation from state officers in its enforcement. Here again, constitutional law stands at odds with intuition. In Printz v. United States, the Supreme Court struck down provisions of a federal gun control law that left significant elements of the program’s enforcement for local police. It is now well settled that Congress may not commandeer state resources to enforce federal law.
But what happens when we encounter a state agency or locality that wants to enforce federal law? In 2006, San Diego County refused to implement a state mandate which required counties to administer identification card programs for patients eligible to receive medicinal marijuana. The county’s argument seemed reasonable enough: Why spend time and resources servicing a program that helps residents violate federal law? The county sought a judicial declaration that its actions were proper. It never came. Borrowing reasoning from the Printz case, a state appellate court explained that municipalities cannot pick and choose when to follow state law. As a legal entity incorporated by California, San Diego County was required to carry out its ministerial duties.
The county appealed up the California court system and on to the U.S. Supreme Court, which temporarily put the issue to rest when it declined review. The matter is quiet now, but hardly settled. For progressive states contemplating similar laws, recent court-imposed limits on preemption are encouraging. So too for pot enthusiasts, especially those who read beyond the second paragraph.
–
Sam Singer is the Beachwood’s legal correspondent. He welcomes your comments.
–
Previously by Sam Singer:
* Is TARP legal? Court to decide on laugh test.
* Taking Government Out Of The Marriage Business. Separating church and state.
* Chicago’s Disorderly Conduct. Dissent allowed even in Daleyland
* Why Google Will Win. Newspapers are on the wrong side of the digital revolution.
* Is Blago A Flight Risk? We asked; a judge said yes.
* Obama’s Torture Test. Politically calculating.
* Replacing Souter. Signs point to Kagan.
Posted on May 22, 2009