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Wednesday, January 10, 2018

Federalism & Marijuana: Externalities vs. Minority Protection as Justifications for Federal Law

Mike Dorf has posted an article criticizing federalism-based attacks, like that offered by Ilya Somin, against General Sessions’ rescission of the Cole Memo, the DOJ enforcement policy that previously limited federal enforcement of the Controlled Substances Act against marijuana use. According to Dorf, respect for “local sentiment and opinion” is not generally a sound reason to relax or eliminate uniform national standards, because, “[i]f a problem truly calls for a vigorous national response, then federal prosecutors should be prepared to override local sentiment and opinion.” Dorf offers the example of local sentiment against the criminal prosecution of white people for committing crimes, including lynchings, against African Americans: Federal anti-lynching laws should be enforced precisely because such local sentiments violate national rights.

Of course, Dorf is perfectly right that the very purpose of federal law sometimes is to protect us from local sentiments. But Dorf’s Analogy is misplaced here, because the Controlled Substance Act is not such a federal law. Enacted as a regulation of commerce among the several states rather than as a guarantee of equal protection, the CSA has nothing whatsoever to do with protecting discrete and insular minorities from oppressive majorities. Instead, the function of the CSA (and the Commerce Power more generally) is to protect interstate commerce from any individual state’s under- or over-regulation that affects that state’s neighbors. In this context, where local sentiment offends no national rights, respect for local sentiment is a powerful reason to abstain from imposing or enforcing national law. Unless the CSA has a good-faith federal externality-suppressing purpose — that is, a purpose to prevent drugs from leaking across Colorado’s border or from lowering the price of drugs Wickard v. Filburn-style in drug-prohibiting states — the CSA serves no genuine national purpose.

The problem with the CSA is that the War on Drugs had nothing whatsoever to do with suppressing such “externalities” — that is, burdens imposed on people living outside an under- or over-regulating state inflicted by that state’s over- or under-regulation. Nixon pressed for the CSA to whip up his “Silent Majority’s” ire at various national minorities (hippies, the “counterculture, and, perhaps, racial minorities). That minority-suppressing purpose is not a “legitimate end” under McCulloch, because the right to be free from weed-toking neighbors is not a national freedom under the Civil War Amendments. In invoking a sort of reductio ad Jim Crow to justify laws like the CSA with strained analogies to lynching, Dorf suggests how our rhetoric of federalism has been debased by paranoia about majority factionalism dating from Madison’s Federalist #10. Those fears are legitimate in particular contexts, but they are not a standing invitation for national regulation that itself can constitute a suppression of minority rights to self-government — minority rights protected not by the Fourteenth but rather by the Tenth Amendment.

Posted by Rick Hills on January 10, 2018 at 03:32 PM | Permalink


I still don't get what a state's legalization of marijuana has to do with the rest of your otherwise perfectly plausible argument. I have no idea how marijuana is sold or regulated in those states that have legalized it, or how it's sold in those states that haven't, so the following is a mere guess. But wouldn't the spillover effects of legal intrastate commerce in marijuana into states that haven't legalized it tend to be greater and more deserving of federal attention than the spillover effects of illegal intrastate commerce in marijuana? It's just hard for me to believe that all the legally dispensed marijuana in Colorado just stays in Colorado - that Coloradans don't resell interstate, that non-Coloradans don't travel to Colorado and take the marijuana they buy home, etc. I actually would have thought that on your argument, the more illegal marijuana is in a state and the more zealously enforced the state ban, the less federal involvement is appropriate, not the other way around. I must be missing something.

Posted by: Asher Steinberg | Jan 11, 2018 1:46:30 PM

"The majority opinion correctly applies our decision in United States v. Lopez, 514 U.S. 549 (1995), and I join it in full. I write separately only to express my view that the very notion of a “substantial effects” test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases. By continuing to apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits."
-Justice Thomas’s concurrence in United States v. Morrison, 2000

Posted by: Doubting Thom | Jan 10, 2018 5:22:53 PM

Michael, I agree that modern doctrine does not restrict Congress to solving collective action problems when using its N&P power to implement the Commerce Clause. Modern doctrine, however, is utterly incoherent, as Don Regan noted long ago: It allows federal regulation based on plainly pretextual jurisdictional elements (e.g, food traveling to racially discriminatory restaurants) and invokes “substantial effects” on commerce that are also plainly pretexts. As a gloss on the N&P clause, modern doctrine is a mockery of empty formalism. The doctrine has become so absurd from a functional point of view — the only point of view supported by the eminently functional language of the N&P clause — that the Court has taken to invoking “plain statement” rules in cases like Jones (the arson case) and Rapanos (the wetlands case) to narrow statutes plainly unconstitutional supplement statutory language with quasi-constitutional canons.

As for state-regulated marijuana, to the extent that state regulation seems to prevent the effects of intrastate sales on interstate commerce, then, under Wickard v. Filburn, such state laws are plainly relevant to the question of whether Congress is really aiming at those effects in enforcing the statute. I believe that Congress must be aiming at such effects to fall within the “substantial effects” test, because that test is a gloss on the N&P clause, which, in turn, is best understood as McCulloch understood it — as limited by a pretext-based restriction. If Congress is truly indifferent to the interstate aspect of a problem, then that indifference counts against the enactment’s being upheld as necessary and proper for the execution of the power to which Congress is indifferent. the doctrine has never foreclosed such a pretext test (Darby notwithstanding, because Darby’s references to Congress’s motive and purpose pertain only to Congress’s commerce-blocking power, not to the “substantial effects” test).

Because we disagree about the necessary and proper scope of Congress’ implied powers, we also disagree about the proper exercise of prosecutorial discretion. On your view, if some intrastate activity poses a “grave danger,” then the AG should properly attack that activity, because Congress has the power to attack “grave dangers” affecting only one state. Such a theory of federalism makes zero sense to me: Why have a “substantial effect” test, if those effects are not the reason for national regulation? And if such a test is rooted in the idea that only those interstate effects justifies intrastate enforcement, then the AG should not attack dangers, however grave, if they are entirely contained within a single state — at least if the only constitutional basis for the statute being enforced is the Commerce Power combined with the N&P clause.

Posted by: Rick Hills | Jan 10, 2018 5:07:32 PM

I read the essay differently than expressed by the top post.

My reading of the essay is that at least granted for the sake of argument is a rule that "generally" speaking local option should be respected [citing a speech by Robert Jackson in support] but "truly calls for a vigorous national response" is put as an exception.

Protecting discrete and insular minorities is not the only thing that meets Prof. Dorf's test. I also reject the apparently narrow reading of the Commerce Clause. As to the negative purposes of the CSA, that's a policy dispute that doesn't negate Dorf's arguments from what I can tell. A federal ban on the possession of let's say heroin as part a national effort to stop the interstate and international commerce thereof however to me is more than some race based statutory system.

Posted by: Joe | Jan 10, 2018 4:54:25 PM

" Nixon pressed for the CSA to whip up his “Silent Majority’s” ire at various national minorities (hippies, the “counterculture, and, perhaps, racial minorities). That minority-suppressing purpose is not a “legitimate end” under McCulloch, because the right to be free from weed-toking neighbors is not a national freedom under the Civil War Amendments."

I definitely agree with you that in ethno-states like Norway, Congo, Israel, and Japan, it would be perfectly legitimate to imprison people for getting high because it's only being enforced against a single race and isn't suppressing the rights of minorities.

Obviously the due process clause was never meant to protect majorities against arbitrary and unjust treatment by the government. If you look like your congressman there's no limit to the tyranny they can impress upon you.

Treatment is only unjust if it's discriminatory.

Posted by: Orwell | Jan 10, 2018 4:52:17 PM

Rick: Your analysis leads to the conclusion that the CSA (at least w/r/t marijuana but probably more broadly) should be deemed unconstitutional or should be repealed by Congress on sub-constitutional federalism policy grounds. I disagree with the first possibility but not with the second. I do not regard the Commerce Clause as restricting Congress to solving collective action problems or protecting local minorities--and neither does modern doctrine. However, I do think that is a useful policy guide for Congress.

But in any event, your argument does not meet mine. You have not offered an argument for the proposition that the federal government should forbear from enforcing the CSA against state-legal marijuana but not otherwise. THAT's the argument I address.

Meanwhile, I apologize if I gave the impression that I think there can NEVER be a good reason for forbearance in particular states. That's not my view. I suggest when such forbearance may be appropriate on my blog, with particular reference to the death penalty: http://www.dorfonlaw.org/2018/01/when-should-federalism-matter-to.html

Posted by: Michael Dorf | Jan 10, 2018 4:13:19 PM

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