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Tuesday, October 20, 2009

Raich's revenge: How California's med marijuana triumph depends on Printz

The New York Times reports that Eric Holder's Justice Department will no longer prosecute marijuana distributors who comply with California's system for distributing medical marijuana. This is an extraordinary victory for sensible federalism (not to mention for a sane drug policy), coming after the disaster of Gonzales v Raich, so it is useful to consider the legal foundations of the triumph of federalism.

My hypothesis, in one word, is Printz: California's constitutional entitlement to withhold its police force from the enforcement of federal drug policy made it so practically inconvenient for the feds to pursue med marijuana users that they gave up. Given that sworn and armed non-federal officers outnumber the feds by a factor of roughly eight to one, the feds simply could not fill the gap when California's police force went on strike. Of course, there is an alternative but, I believe, mistaken theory that federalism was adequately protected by the national political process in this case. Such a theory would maintain that the Obama Administration, pledged to modify the federal drug policy on medical marijuana, simply adopted a position consistent with the President's campaign promises. If you believe that, then you will also believe that the Obama Administration will soon use its prosecutorial discretion to stop enforcing "don't ask, don't tell" in the military context -- discretion that, as I have argued elsewhere, the Obama Administration amply enjoys. But don't count on them to use it for gay and lesbian constituents: This is an administration that chooses its battles so carefully that the status quo on anything as controversial as "don't as, don't tell" will be locked in for years, absent insistent promoting from non-federal elected officials.

The more convincing explanation for the feds' backing off on med marijuana is that California's recalcitrance gave the Administration both political cover and practical reasons to yield to preferences that had concrete endorsement and enforcement at the subnational level. But that recalcitrance depended on Printz's anti-commandeering rule, because, without Printz, California's blatant defiance of national law would have violated the supremacy clause. Federalism skeptics have argued for years that Printz is a trivial entitlement because the feds can costlessly bypass the states by enforcing national law with their own federal personnel. I think that California's victory shows that this argument is based on deep academic detachment from practical law-enforcement reality. And a good thing, too: Constitutional federalism always outperforms the low expectations of its critics.

Posted by Rick Hills on October 20, 2009 at 12:22 PM | Permalink


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Rick --

The change in state laws probably has helped foster more tolerant social norms regarding marijuana use. I think it's fair to view this as an attack on the federal norm of intolerance -- in fact, as I discuss in the paper, the federal government (until recently) has been far more concerned about the message being sent by state laws than about the reduction (or elimination) of state enforcement. Given the difficulty of policing marijuana, social norms are an important (perhaps critical) part of any viable enforcement strategy, so it's easy to see why federal enforcers are (were) so concerned.

You make a great point about comparative federalism and political morality. I suppose there are probably ways for the Lander to get around the restrictions on their authority. Per Matt's point above, they could drag their heels when responding to a command issued by the national government; this would send a signal about the law being impressed upon the Lander, though the signal would be even more powerful / clear if the Lander engaged in outright defiance.

Posted by: Rob Mikos | Oct 21, 2009 3:59:40 PM

Nice point, Matt S. And thanks for the tip about your forthcoming piece, Rob, which sounds very interesting. (Of course, I am delighted to hear that my intuition is backed up by serious research).

Just judging from the abstract, one state's willingness to tolerate a practice condemned by the feds can change norms as well as law enforcement. One might argue that this effect on norms is in some sense an attack on the federal norm: The subnational jurisdiction is not merely passively refusing to aid the feds but actually undermining their scheme. Other federal regimes do not tolerate this subtle sort of attack: The German Supreme Court, for instance, would never tolerate such behavior: They use the principle of "Bundestreue" -- roughly, fidelity to the federal idea" -- to strike down Lander measures that have the purpose of resisting the Bund's rules.

I tend to think that we Americans rightly reject this ideal of Bundestreue and embrace a much more adversarial idea of federalism. But I should not say "we" with too much alacrity, given that there are lots of legal academics out there with more sympathy to the Bundestreue approach.

Posted by: Rick Hills | Oct 21, 2009 1:04:48 PM

Rick --

I have a paper coming out in the Vanderbilt Law Review (Oct. 2009) making this point -- On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime. Here's the SSRN link

The anti-commandeering rule is certainly important, but there's more to the medical marijuana story (and state power) than that. Here's the abstract:

Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana not only survive careful preemption analysis, they constitute the de facto governing law in thirteen states. This Article argues that these state laws and most related regulations have not been and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress’s preemption power by the anti-commandeering rule, properly understood. The Article develops a new framework for analyzing the boundary between permissible preemption and prohibited commandeering—the state-of-nature benchmark. The state-of-nature benchmark eliminates much of the confusion that has clouded disputes over the legal status of state medical marijuana laws. Just as importantly, the Article demonstrates why these state laws matter in a more practical sense. By legalizing medical use of marijuana under state law, states have removed the most significant barriers inhibiting the practice, including not only state legal sanctions but also the personal, moral, and social disapproval that once discouraged medicinal uses of the drug. As a result, medical use of marijuana has survived and indeed thrived in the shadow of the federal ban. The war over medical marijuana may be largely over, as commentators suggest, but contrary to conventional wisdom it is the states, and not the federal government, that have emerged the victors in this struggle. Although the Article focuses on medical marijuana, the framework developed herein could be applied to any issue pitting permissive state laws against harsh federal bans, including abortion, sports gambling, and firearms possession.

Posted by: Rob Mikos | Oct 20, 2009 5:35:31 PM

Professor Hills,

To what degree did this also rely on a sort of Congressional acquiescence? Under Dole, I imagine Congress could have conditioned some important but trivially related source of state funding on enforcement of federal drug laws (come to think of it, I'm surprised they didn't try).

Although, on the other hand, how would Dole apply in the enforcement context? It's very easy in the legislative context to measure whether a state has enacted a law or not. But in the enforcement context, Congress would have to write some sort of standard for measuring "enforcement," which is not very easily done, and probably less easily enforced.

Posted by: Matt S. | Oct 20, 2009 1:11:59 PM

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