法律英语：36 Interstate Commerce and Marijuana

by Michael W. Flynn

 

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed 1 to practice in your jurisdiction 2. Further, I do not intend to create an attorney-client relationship with any listener.

Today I answer a rather colorful question that implicates 3 complex constitutional questions of federal preemption and the reach of Congress’ power. Scott from California wrote:

Legal Lad: why the f$%^ can’t I smoke pot in California?

The very short answer is that the Supreme 4 Court said so in Gonzales v. Raich.

Under federal law, it is illegal to possess, transport, or use marijuana. Under California state law, it is legal to do all those things provided that a doctor has issued a prescription 5 to you and followed some other requirements.

Under broad constitutional principles, Congress and federal authority trumps 6 state authority where the federal government has the power under the Constitution to regulate something. This power is granted under the “Supremacy Clause.” In a past episode on the airline passenger’s bill of rights, I explained why a federal court struck down a New York state law that gave passengers the right to water and food if they got stuck waiting on the tarmac for too long. Congress has the right under the Constitution to pass laws related to interstate travel and commerce, and so only Congress was allowed to create laws that give to airline passengers any rights. Congress created the FAA, which did not grant any such rights to passengers, and so the Second Circuit struck down New York’s law.

The issue is somewhat similar with drugs. The Constitution grants to Congress the power to regulate interstate commerce. With regard to marijuana, the question before the Supreme Court in Raich was whether the growing, transportation and sale of medical marijuana constituted “interstate commerce,” and thus could be regulated.

California presented evidence that the medical marijuana was grown in California, was only transported to medical marijuana dispensaries in California, and was only used in California.

The United States presented evidence that there was a black market of marijuana. Basically, the US argued that California could not reasonably ensure that the drug stayed exclusively within the state, and so Congress had the power to regulate.

The Court, in a 5-4 split, agreed with the US. The “liberal” bloc 7 of the Court won – holding that the Constitution granted broad authority to the centralized US government to regulate. The “conservative” bloc, lead by now retired 8 Justice Sandra Day O’Connor, dissented 9, and argued that California, in its great wisdom or folly 10, was welcome to try out its marijuana scheme, and that the feds should not interfere 11. She urged that the Interstate Commerce Clause was not so broad as to allow Congress to step in anytime that there was only the minor 12 possibility of interstate commerce.

So, the holding meant that federal authorities, enforcing federal laws, had the right to arrest anyone who broke federal law by possessing, using, selling, etc., any amount of marijuana. However, this did not mean that California authorities, enforcing state law, could do the same. California police must generally follow California law, which means that, if a person has the proper paperwork, he cannot be punished.

But, the quirky thing is that the federal government has not always exercised its authority to the extent that it could. The feds, at any point, could close down pot shops and confiscate 13 all the green. But, they have thus far chosen not to do so for all shops. They seem to selectively target some areas, some shops, or some people. But, this does not mean that the feds could not swoop 14 in and do so in many circumstances.

So Scott, you “can” smoke pot in California, but not really. This area of the law changes often, as challenges on the grounds of medical privacy under the federal constitution, as well as issues about who has jurisdiction and when are being decided 15.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful 16 Life. You can send questions and comments to。。。。。。or call them in to the voice mail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.