Marijuana decriminalization and legalization in approximately twenty states have revived a controversy surrounding the issues of federalism and the rights of the state governments to pass laws that are supported by the majority of the voters within particular states. Opponents of marijuana legalization for any purpose, either medicinal or recreational, claim that the decisions made by some states contradict the federal drug laws and, therefore, are illegal. Supporters of the state drug laws claim that the Tenth Amendment to the US Constitution granted the states certain rights that are not in the scope of the federal power. However, this amendment does not specify, what rights the states have; it merely claims that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”. According to the Supreme Court, “The amendment states but a truism that all is retained which has not been surrendered”(United States v. Darby, 312 U.S. 100, 124 (1941)). On the other hand, in 2005, the Supreme Court ruled in Gonzales v. Raich that federal drug laws fall within congressional Commerce Clause authority, because “production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity”. It should be mentioned that initially the Commerce Clause gave Congress only the power to “regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes” (U.S. Const. Art. I, § 8, CI. 3.). The interpretation of the Supreme Court significantly enlarges the meaning of “Commerce” and gave Congress the power to regulate even those activities, which may affect trade among states. As Somin argues, such review of the Commerce Clause turned federalism into “a casualty of the War on Drugs” (550). Nonetheless, even though about twenty states allowed their residents to possess and use marijuana as a medicine, it stays illegal under federal law (Adler, n.pag.).
How should the federal government react to the state laws that legalize marijuana’s use in some form? President Obama has suggested that DEA’s raids on those citizens, who used marijuana for medical purposes, do not exemplify a rational and sensible use of federal resources. He also claimed that he was not going to use limited resources of the Department of Justice in order to “circumvent state laws on this issue” (Sullum 1). In the Republican Party, the issue of marijuana is not treated unanimously. Even though the GOP usually opts for the smaller federal government and rights of states to identify their preferences and adopt their policy priorities independently, the issue of state regulations of drug use remains controversial (Adler, n.pag.). For instance, while Texas Governor Rick Perry resists legalization of marijuana, he claims that states have a right to decide on this matter. Another example is Jeb Bush, who also endorses the freedom of states to regulate drug use, even though he opposes marijuana legalization in Florida (Adler, n.pag.).
The issue that seems absent in the debate on the federal and state powers, is the will of the voters. Numerous polls since 1995 have demonstrated from 60 to 85 per cent of respondents supported the legalization of medical marijuana (Somin 540). Thus, it can be argued that Gonzales v. Raich not only damages federalism, but also supports the policy that is at odds with the popular opinion of the majority. Because of this, I think that federal law should not prevail and the powers of states should be extended.
Another way to argue for the abolishment of federal drug laws is to compare the issue of marijuana regulation to Prohibition Act of 1920. These cases are similar in various perspectives but vary in one significant aspect. While Gonzales v. Raich interpreted the drug production and sale in the scope of the Commerce Clause, in 1920, a constitutional amendment was necessary to ban the production and sale of alcoholic beverages. Thus, it proves that Congress did not have the authority to regulate all activities, which significantly influence interstate commerce (Somin 547).
In my opinion, states should have the authority to adopt the laws and regulations that address the public opinion of their residents. The interference of the federal government into affairs of states undermines the benefits of decentralized federalism. Decentralized federalism gives the states an opportunity to address the preferences of their residents and compete with other states for citizens, who decide where to live (Somin 539). For instance, when in Washington marijuana is legalized for medical use, and in West Virginia it is banned, residents of the latter may decide to move to Washington in order to benefit from the laws of this state. The federal drug law does not allow these preferences to be expressed, as it creates a homogeneous legal environment in all the states. In addition, it prevents trying different policies to test which one is better for citizens.
Works Cited:
Adler, Jonathan H. “This is Your Federalism on Drugs”. The Washington Post, 28 Aug. 2014. Web. 15 Jun. 2016.
Somin, Ilya. "Gonzales v. Raich; Federalism as a Casualty of the War on Drugs." Cornell Journal of Law and Public Policy, 15.3 (2006): 507-550. Web. 15 Jun. 2016.
Sullum, Jacob. “Anti-Pot Republicans Forsake Federalism in Medical Marijuana Vote”. Forbes, 30 May 2014. Web. 15 Jun. 2016.
