Quote:
Originally Posted by seventwenty
Bunt, but did federal law fully intend to preempt the field? And could Colorado actually uphold both state and federal law? It's been a bit since I read the DOJ's amicus brief, but I seem to recall even they were staying that there wasn't field preemption, that congress did not fully intend to regulate all criminal activity under the barcotics schedule and therefore Colorado could comply with state and federal law , for marijuana purposes.
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The federal statute in question expressly provides that it does not intend to pre-empt state marijuana law. It's undisputed that federal law does not require states to make marijuana illegal (and as a constitutional matter, probably cannot). Thus, the only question is whether Colorado's law conflicts with federal law. This may be harder question than it seems, as Colorado law does not purport to override federal law and in practice Colorado officials have openly acknowledged the application of federal law and from time to time, have cooperated with federal authorities to enforce it (witness the limited federal raids on Colorado marijuana shops and production facilities that have occurred).
Does the mere regulation (i.e., restriction of) the cultivation and sale of a substance that is illegal under federal law conflict with federal law? I think the better argument is probably that it does, from a pure legal perspective. However, there's other practical and political considerations that can't help but influence things.
If the federal government were moving to shut down marijuana in Colorado I see no basis for anyone to stop them. (Thus, in Bunt's example, there would be no question of the feds authority to enforce federal gun laws and seize illegal weapons brought in from Wyoming).
However, it is not. So we are left with the question of whether the courts can "force" the feds to enforce federal marijuana law more than they have (they have enforced it selectively).
In theory, the courts could certainly do such a thing, as there is plenty of precedent of courts ordering executive agencies to follow and enforce federal law. However, the practical considerations here are huge. The Solicitor General notes that if the Colorado law is struck down, the use of marijuana becomes entirely legal AND unregulated under Colorado law. Perhaps the same would follow in Washington, Oregon and Alaska. And what about the 20 plus states with medical marijuana? There is no federal exception for medical marijuana. What would the courts order? That the feds raid all of the dispensaries? What if the feds say we don't have nearly enough resources to take on all the "illegal" marijuana out there in the more than 20 states where it at least partially legal. Does the judge become the day-to-day manager of federal law enforcement resources, telling the feds how to deploy their resources, whom to raid and whom not to? What happens when the feds claim that forcing federal law enforcement to focus on marijuana will take resources off of preventing terrorism. What judge wants to own that?
Historically, the states and not the federal government have been the front line enforcers of anti-marijuana statutes. Without the states taking this lead, federal resources would be overwhelmed to even begin to take on a tiny portion of "street level" marijuana enforcement.
From the courts' perspective, this situation has arisen because of a sea-change in public opinion, combined with the active participation of 20 + states and the acquiescence of both the federal executive and Congress (I see neither Dems nor Republicans pushing legislation to force a federal crackdown on marijuana). A judge might well conclude all of the other branches of government and many of the states have created this mess with no easy out, including no easy judicial out. Why should the courts step in and, potentially make things worse, when all the other branches are doing nothing? I know law professors would balk at the idea that courts should take such political and practical considerations into account when interpreting the law, but they of course do.
This really is analogous to the end of Prohibition. During the last years of Prohibition many states openly declined to cooperate with the federal government and refused to enforce any federal anti-booze laws, leaving the feds hopelessly overwhelmed with free-flowing booze. The writing was on the wall that the law would not stand - and that was despite an express provision in the constitution itself, banning the sale of alcohol. All laws only work as long as there is some minimum level of commitment by the public to obey them and the public officials to enforce them. With Prohibition, by the late 1920s, that commitment was gone in many states and the will to maintain the commitment was gone in enough other states that the Prohibition was soon repealed. Laws remain on the books in many states that are seldom if ever enforced.
https://www.legalzoom.com/articles/top-craziest-laws-still-on-the-books
The majority of Americans now support the legalization of marijuana for recreational purposes (
http://extract.suntimes.com/news/10/153/17341/poll-52-percent-registered-voters-support-recreational-marijuana-legalization/")
You can argue that the tipping point for marijuana has passed, that for marijuana also, the writing is on the wall, and its only a matter of time before the the laws catch up to reality.
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