Earlier this month, federal prosecutors in California announced that they were stepping up enforcement against medical marijuana clinics that have allegedly become de facto dealerships where people without a medical need can still buy pot. In response to this unfortunate diversion of scarce resources to minor drug crimes that cause, at most, negligible harm to society, a medical marijuana advocacy group called Americans for Safe Access filed an equally unfortunate lawsuit seeking to have the Justice Department’s actions declared unconstitutional:
Adamant in its disagreement with the policy choice made by the States of California to decriminalize marijuana for medical use — which is California’s sovereign right under our federalist system of government — the federal government has instituted a policy to dismantle the medical marijuana laws of the State of California and to coerce its municipalities to pass bans no medical marijuana dispensaries. . . . While the federal government is entitled to enforce its criminal laws against marijuana in the states that have decriminalized it for medical use in an even-handed manner, the Tenth Amendment forbids it from selectively employing such coercive tactics to commandeer the law-making functions of the State. This case is brought to restore the constitutional balance embodied by the federalist principles of our Constitution and the Tenth Amendment.
This is strong rhetoric, but it’s tough to find an actual legal argument in here. In essence, the lawsuit appears to claim that the federal government is violating something known as the “anti-commandeering doctrine,” which forbids the federal government from requiring a state government to take a particular action. As the Supreme Court held in Printz v. United States, “the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.”
The problem with this lawsuit is that there is no indication whatsoever that DOJ is ordering California to do anything. The Justice Department is targeting marijuana clinics and individuals who do business with them. None of these people are the state of California.
Yet the fact that DOJ’s attacks on these clinics is constitutional does not make them right, and they expose a very real political danger for anyone worried about the tenther movement’s effort to replace our Constitution with a radical libertarian vision that would declare much of the Twentieth Century unconstitutional. The polling trend on marijuana policy is clear and unambiguous, and it leaves no doubt which side is on the right side of history:
Our current policy, which criminalizes an activity that nearly half of all Americans will engage in is unsustainable. And many people who want to take a machete to the Constitution are eager to exploit this fact. Randy Barnett, the extremist law professor who wants to make everything from Social Security to Medicare to child labors law unconstitutional, began his crusade by unsuccessfully arguing to weaken federal marijuana laws in the Supreme Court. The Tenth Amendment Center, an even more extremist organization that lists unconstitutional nullification of federal laws as one of its primary objectives, touts an unconstitutional hemp bill as one of its top priorities.
Progressives cannot afford to cede an increasingly popular issue to a movement that wants nothing more than to dismantle our social safety net, strip workers of their most basic legal protections and create a society where wealth becomes destiny. Our current federal marijuana policy is unambiguously constitutional, but that does not make it right.