Pubdate: Mon, 01 Apr 2013
Source: Las Vegas Review-Journal (NV)
Copyright: 2013 Las Vegas Review-Journal
Contact: http://www.reviewjournal.com/about/print/press/letterstoeditor.html
Website: http://www.lvrj.com/
Details: http://www.mapinc.org/media/233
Authors: Erwin Chemerinsky and Allen Hopper
Note: Erwin Chemerinsky is dean of the UC Irvine School of Law, and 
Allen Hopper is criminal justice and drug policy director of the ACLU 
of California. They wrote this for the Los Angeles Times.

ON POT LAWS, RESPECT THE 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
pre-empted by federal law. The two states will soon finalize
regulations to implement those initiatives, including how to tax and
regulate marijuana. U.S. Attorney General Eric Holder 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
pre-empted 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 pre-emption 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
pre-emption 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 pre-empted,
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 with 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 Richard Nixon declared the war on drugs,
Washington's 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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