After yesterday’s post, a lot of people asked me how I could be so sure of federal obstinacy to legalizing marijuana. I realize now that as someone who has been heavily involved in politics for over thirty years, what seems like conventional wisdom in political circles, in most other circles seems crazy. The question usually is, if twenty nine states out of fifty have legalized marijuana in some way, how can the federal government be so abstinent in choosing not to legalize the sale of marijuana even for medical use?
For this situation to change, either the Supreme Court of the United States would have to say that the federal law is unconstitutional because the Constitution does not give the federal government power to declare marijuana illegal, or a law would have to be passed by the U.S. Congress overturning cannabis criminalization.
Articles X of the Constitution states 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.” One place the Constitution says that the U.S. Government (the federal government) has power over the state and the people is when the issue in question concerns interstate commerce.
When the issue of Civil Rights came up before the U.S. Supreme Court, and more specifically, how and when could the US Government force a local diner to desegregate, the U.S. Supreme Court said that the US Government has jurisdiction over the segregation issue as it relates to a local diner (where the seating is segregated because of race) because the diner probably serves such items as Chicken which in all probability was transported over state lines to the diner; and thus invoking the Interstate Commerce Clause of the U.S. Constitution (and other excuses). What is called the interstate commerce clause is also called the loop hole so big; you could drive a truck through it. If the constitutionality of the federal government in outlawing marijuana is ever brought before the U.S. Supreme Court, then it is this loophole call “Interstate Commerce Clause” that will probably save the law.
In addition, the U.S. Supreme Court is the most “politicized court” in the land, and most of the court was nominated by Republican Presidents who were all very much in favor of the war on drugs. In any case, even though Republicans are supposed to be the party of strict-constructionism, which means the party that is for limiting federal power to only those powers delineated in the Constitution, it is still the party that favors keeping the federal anti-drug laws intact.
Right now the big “anti-drug” party is in control of all the law making branches of government. To abolish the federal laws that outlaw marijuana, you would have to pass such a law through both the U.S. House of Representatives and the U.S. Senate and then your would need the President of the United States to sign it. Almost every Republican that runs for political office anywhere runs on a tough anti-drug platform and this anti-drug fever seems to override any Republican sympathy for libertarianism or bringing power “back to the states”. The bottom line is that as long as there is republican control of the House, the Senate or the Presidency, the federal anti-marijuana laws will remain in force. Therefore, don’t count on a reversal of federal law when making strategic business decisions about marijuana.
(Author’s note: there are not a lot of citations in the article because most of it came from the top of my head. It never occurred to me that there was a chance for federal reversal on this issue. I really would like it if my conclusions on this issue were wrong. So if you disagree with me, by all means tell me. I would love to hear it).