Pubdate: Wed, 27 Mar 2013
Source: Los Angeles Times (CA)
Copyright: 2013 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Authors: Erwin Chemerinsky and Allen Hopper
Note: Erwin Chemerinsky is dean of the UC Irvine School of Law. Allen 
Hopper is criminal justice and drug policy director of the ACLU of California.

LEAVE POT LAWS TO STATES

It may be surprising, but no state is required to have a law making 
possession of marijuana, or any drug, a crime. Therefore, any state 
can legalize some or all marijuana possession if it chooses. The 
federal government, if it chooses, can enforce the federal law 
against its possession and use, but it is up to each state to decide 
what to criminally prohibit, based on the 10th Amendment.

This basic insight has been lost in the public discussion about 
whether the initiatives legalizing possession of small amounts of 
marijuana passed by Colorado and Washington voters in November are 
preempted by federal law. The two states will soon finalize 
regulations to implement those initiatives, including how to tax and 
regulate marijuana. U.S. Atty. Gen. Eric H. Holder Jr. told a recent 
meeting of state attorneys general that the Justice Department review 
of the initiatives was winding down, suggesting an imminent decision 
as to whether it intends to challenge the initiatives as being 
preempted by federal law.

This month, eight former heads of the Drug Enforcement Administration 
urged Holder to enjoin the new state laws. Peter Bensinger, DEA chief 
from 1976 to 1981, told the Associated Press: "This is a no-brainer. 
It is outrageous that a lawsuit hasn't been filed."

Is it outrageous? Or is it just an intelligent assessment of the 
legal landscape?

The preemption doctrine is based on the supremacy clause of Article 
VI of the Constitution, which makes federal law "the supreme law of 
the land" trumping conflicting state laws. The question, then, is 
whether there is a conflict between the federal government 
prohibiting small amounts of marijuana and some states not doing so.

There is not a conflict when one level of government prohibits 
something but another level of government does not. An easy 
illustration is that murder is a crime in every state, but, except 
for very specific circumstances, it is not a federal crime. No one 
would say that there is a conflict. Likewise, a state can decide that 
certain conduct does not violate state law even if it offends federal 
law. It is then for the federal government to decide how, if at all, 
it wants to enforce the federal law.

Several other states, including California, have laws making 
possession of up to an ounce of marijuana an infraction punishable by 
a fine, even though under federal law, it's a misdemeanor punishable 
by up to one year in federal prison. Similarly, 17 states and 
Washington, D.C., have laws that allow possession of marijuana for 
medical purposes; there is no such federal exception. Although the 
federal government can enforce the stricter U.S. law in states that 
have decriminalized possession or have medical marijuana laws, it has 
never acted to have those state laws invalidated based on the 
preemption doctrine.

Simply put, no state has to have a law prohibiting marijuana, even 
though federal law does. And if a state does have such a ban but 
wants to repeal it in whole or in part, such as for possession for 
medical reasons or for small amounts, it may do so.

Because states could remove all criminal sanctions for marijuana, 
this more limited removal of some state sanctions cannot be 
preempted, claiming a conflict with federal law. It is true that 
Colorado and Washington go further than allowing possession of small 
amounts of marijuana under state law; their new laws also regulate 
and tax the sale of marijuana. But this actually helps achieve the 
federal objective of controlling marijuana compared to a state 
decriminalizing marijuana without regulating its distribution.

Beyond the legal arguments, there are policy reasons for the federal 
government to not interfere with the Colorado and Washington laws. An 
important feature of federalism is that states are empowered to serve 
as laboratories for experimentation with social policies. As the 
nation embarks on perhaps the most significant public debate about 
drug policy since President Nixon declared the war on drugs, 
Washington and Colorado's experiment should be allowed to go forward. 
The country can then assess whether it succeeded or failed.

Let's hope Holder's response will be more nuanced and respectful of 
the states than that urged by the retired drug warriors.
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MAP posted-by: Jay Bergstrom