It’s a Colorado rocky mountain high
I’ve seen it rain fire in the sky
Friends around the campfire and everybody’s high
When the late John Denver recorded these prophetic lyrics in 1972, who could have foreseen the day, 35 years later, when Rocky Mountain High would take its place next to Where the Columbines Grow as the official co-state song of the State of Colorado? On November 6, 2012, a mere five years after Rocky Mountain High attained such legendary status, the voters in Colorado approved a ballot initiative that would make it the first state, quickly followed by the state of Washington, to legalize the possession and sale of marijuana for recreational purposes.
The scenes on television that November evening were nothing short of remarkable. As most of America was fixated on the results of the presidential election, along with numerous congressional, gubernatorial, state and local elections also taking place on that fateful November day, an awkward assortment of casual marijuana users, hard core potheads and aging hippies rejoiced while watching the network newscasters announce the results of the Colorado and Washington ballot initiatives on marijuana.
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As the circus atmosphere continued to play out on television screens across the country throughout the evening, a peculiar assemblage of psychologists, sociologists, criminologists, policy pundits and other talking heads debated endlessly about the pros and cons of the legalization of marijuana. Legal scholars, on the other hand, focused on the potentially titanic clash between these state actions and Article VI (2) of the United States Constitution, commonly referred to as the Supremacy Clause.
Inevitably, there will be a deluge of legal battles in which marijuana users are surely going to be unwitting pawns. The vast majority of legal challenges to these state laws will arise not from the legalization of the substance itself, but rather from the notion that certain states are apparently determined to trump federal law in violation of the most revered and sacred legal document in our nation’s history: The Constitution of the United States.
Another complicating factor that cannot be overlooked is the shockingly complicit position taken by the United States Department of Justice (DOJ). Under the leadership of Attorney General Eric Holder, the DOJ has given a clear signal to the burgeoning marijuana industry that the federal authorities will not be enforcing federal law in a manner that would require the industry to have any serious concerns. In fact, it is not a stretch to interpret the DOJ’s official guidance on the issue as tacit approval. While the underlying motivations fueling this controversial decision are certainly nebulous, the fact remains that Mr. Holder has apparently made the decision that the DOJ should not be taking aggressive enforcement action against certain groups of lawbreakers.
What is the Supremacy Clause?
The verbiage of the Constitution’s Supremacy Clause is deceptively simple;
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State notwithstanding.
In plain English, this means that no state has the power to enact a law that is in direct conflict with a federal law, which is precisely what Colorado and Washington appear to have done.
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Marijuana is classified as a Schedule I Controlled Substance under the Drug Abuse Prevention and Control Act of 1970 (commonly referred to as the “Controlled Substances Act”). In other words, as seen through the federal lens, marijuana is an extremely dangerous drug with no medical benefits. Accordingly, under the Controlled Substances Act it is a federal crime to manufacture, distribute, dispense or to possess with the intent to manufacture, distribute or dispense marijuana. Regardless of how narrowly these state laws are construed by the courts, it is difficult to see how it is plausible to reconcile these laws with the conflicting federal law in a way that would allow state and federal law to coexist.
The national debate that has been raging in this country for decades about whether marijuana is, or is not, a dangerous drug worthy of its Schedule I Controlled Substance designation is beyond the scope of this article. That issue is of little significance when compared to the dangerous precedent being established by a few “progressive” states and the Obama administration’s DOJ which, at least to this point, seems determined to facilitate the unconstitutional actions of those states. The remainder of this article is devoted to the analysis of three issues: (1) the obvious clash between these particular state laws (with the focus on Colorado’s law) and the conflicting federal law; (2) the thinly-veiled efforts of the Obama administration to pacify the marijuana enthusiasts; and (3) the likely future of these laws.
The Colorado Law
Effective December 10, 2012, Article 18, Section 16 of Colorado’s state Constitution became law. Like many laws, especially those that are bound to be controversial and challenged in the courts, the Colorado law is meticulously drafted and painfully verbose. However, for the purposes of this analysis the critical provisions can be found in subsections 3 (Personal use of marijuana) and 4 (Lawful operation of marijuana-related facilities).
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Subsection 3 provides, in pertinent part, that persons over 21 years of age may (a) possess, use, display, purchase or transport marijuana in quantities not exceeding one ounce as well as marijuana accessories; (b) possess, grow, process or transport up to six marijuana plants, no more than three of which are mature, flowering plants, and possess the marijuana produced by those plants on the premises where the plants are grown, provided that the growing takes place in an area that is enclosed and locked and provided that the marijuana is not made available for sale; (c) transfer no more than one ounce of marijuana without remuneration to a person who is 21 years of age or older; (d) consume marijuana as long as it is not consumed publicly or openly or in a manner that endangers others; and (e) assist others who are at least 21 years of age in the acts set forth in (a) through (d) above.
Subsection 3 essentially allows anyone who is 21 or older to have their way with marijuana as long as they limit their indulgence in accordance with the seemingly arbitrary quantities as well as the production, transit and transfer methods established by that subsection. Undoubtedly, this provision will seem reasonably clear and unambiguous to the average reader, especially when it is read in conjunction with subsection 2 (Definitions) and in the proper context with the other provisions of the law. Predictably, however, we are just beginning to hear the tedious cacophony emanating from the armies of lawyers and judges that will twist these words into a convoluted statutory compost pile.
Subsection 4 establishes restrictions governing the marijuana supply chain from production and processing through transportation and storage to the retail stores and end users. Think of it as a crop-harvesting process similar to corn or soybeans, just slightly more sophisticated and aromatic.
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The truly intriguing parts of the Colorado law begin with subsection 5 (Regulation of marijuana). As comical as it may be to conjure up images of the side show that will come to town when the legion of lawyers and judges begin dissecting this law, just think of the confusion that is bound to come out of the state’s regulatory process. The administrative agency charged with enacting regulations governing the implementation of the law is, not surprisingly, the Colorado Department of Revenue. This is not a typographical error and the writer is not under the influence of any hallucinogenic substance. The state’s tax authorities are responsible for issuing regulations governing the law’s implementation.
The Department of Revenue is responsible for promulgating regulations that establish the following:
- (a) Procedures for the issuance, renewal, suspension and revocation of operating licenses for marijuana establishments;
- (b) A schedule of application, licensing and renewal fees;
- (c) Qualifications for the licensing that are directly related to the operation of a marijuana establishment;
- (d) Security requirements for marijuana establishments;
- (e) Requirements for the prevention, sale or diversion or marijuana and marijuana products to persons under 21 years of age;
- (f) Labeling requirements for marijuana and marijuana products sold or distributed by a marijuana establishment;
- (g) Health and safety regulations and standards for the manufacture of marijuana products and the cultivation of marijuana;
- (h) Restrictions on the advertising and display of marijuana and marijuana products; and
- (i) Civil penalties for the failure to comply with the regulations.
It is also worth noting that this bureaucratic party does not end with the Department of Revenue. According to Colorado Constitution Article 18, Section 16(5)(d), the Colorado general assembly is responsible for enacting an excise tax to be levied upon the marijuana and each locality is required to enact a host of ordinances further regulating the licensing of marijuana establishments operating within their municipal jurisdiction. This is a clear-cut recipe for inconsistency among the multiple municipalities.
The Controlled Substances Act contains a complex array of violations and penalties that depend on a variety of factors including amounts and specific ingredients of certain substances. However, the critical point to understand is contained in the first paragraph. Subchapter (a) states as follows:
…it shall be unlawful for any person knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with the intent to manufacture, distribute, or dispense, a controlled substance…
There are five categories of “controlled substances.” The category in which a particular substance is listed is based on a variety of factors. However, as a general rule, Schedule I contains the substances that are considered the most dangerous and Schedule V contains the substances that are considered the least dangerous.
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With a Schedule I controlled substance there is (A) a high potential for abuse; (B) no currently accepted medical use in treatment in the United States; and (C) a lack of accepted safety for use of the drug or other substance under medical supervision. It is beyond dispute that the classification of marijuana as a Schedule I controlled substance has more than a few highly credible critics. Nevertheless, this is the current state of the law. By comparison, with a Schedule V controlled substance there is (A) a low potential for abuse; (B) accepted medical use in the United States; and (C) a limited potential for physical or psychological dependence arising from abuse of the substance. Schedules II, III and IV each fall somewhere in between these two extremes.
The classification of marijuana as a Schedule I controlled substance has been a fiercely debated topic for decades by scholars in a host of disciplines. However, the wisdom of this classification is beyond the scope of this article. The point is that this is the current state of the law.
The Constitution and Federal Courts
It hardly takes a constitutional scholar to understand that the Supremacy Clause does not receive the copious amount of attention that is regularly bestowed upon its much sexier cousins. Endless debate seems to follow just about every Supreme Court decision involving the First Amendment (freedom of speech, religion and assembly; freedom of the press). It does not produce the rancorous arguments that inevitably result from the Court’s decisions under the Second Amendment, which grants the right to bear arms, or the Fourth Amendment, which protects the populous from unreasonable searches and seizures (warrantless searches). The Supremacy Clause certainly does not produce the emotional drama that ensues from death penalty rulings under the Eighth Amendment, which prohibits cruel and unusual punishment. This list could go on for several pages, but you get the idea.
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While the Supremacy Clause is not surrounded by an aura of excitement like these other constitutional provisions, it is certainly no less important. The Supreme Court rulings striking down state laws under the Supremacy Clause date back to the late 1700’s. While there have been varying degrees of controversy surrounding the Supremacy Clause since the Constitutional Convention that took place in Philadelphia in 1787, Supreme Court decisions have been remarkably consistent over the past 227 years, at least in comparison to some of the other provisions.
The clash of state and federal laws involving the legalization of marijuana is not a new phenomenon and has come before the federal government on many occasions. In a case involving California’s “Compassionate Use Act,” which resulted from Proposition 215 in 1996 (United States v. Cannabis Cultivators Club), a federal court in that state addressed the issue head on. In essence, the “Compassionate Use Act” made it legal for seriously ill patients and their primary caregivers to possess and cultivate marijuana for use by the seriously ill patient if recommended by the patient’s physician. This California law precluded prosecution of either the patient or the caregiver. The marijuana was supplied by medical cannabis dispensaries. In this case, the defendants operated such dispensaries.
The federal government brought a number of lawsuits against the cannabis dispensaries on the grounds that the dispensaries manufactured and distributed marijuana and possessed the drug with the intent to manufacture and distribute in violation of the Controlled Substance Act. The court reiterated the provision of the Supremacy Clause, articulating the concept that state law must always be preempted when it is not possible to comply with both the state law and the conflicting federal law or where a state law creates an obstacle to carrying out the objectives of the federal law. After analyzing the defendants’ multiple arguments, the court issued an order precluding the defendants from engaging in the manufacture or distribution of marijuana or the possession of marijuana with the intent to manufacture or distribute the drug in violation of the Controlled Substances Act.
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In the end, regardless of how well intentioned a state law legalizing marijuana may be, and regardless of the level of public support the law may garner, the United States Constitution requires that such a law must always be preempted.
There are many other cases that have been decided by courts across the country. However, the main point is always the same. These laws simply will not hold up under our current system of government.
At first glance it might appear perfectly reasonable, even desirable, that Colorado and Washington have enacted laws legalizing recreational marijuana production and use by adults, albeit within certain limitations. After all, in the Colorado case, a referendum was held and a majority of the state’s voters (53% in favor and 47% opposed)approved a constitutional amendment authorizing the legalization of marijuana. The state legislators and governor acted at the direction of the majority and the result, according to conventional wisdom, was a resounding victory for the democratic process. But is it really desirable to enact laws simply because they contain certain provisions that have popular support? When the issue is viewed through a slightly more sophisticated lens, it quickly becomes apparent that this action is replete with hidden dangers that are unrelated to the number of people who will choose to take up or continue the hobby of pot smoking.
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Properly regulated and controlled, recreational marijuana production and use may seem to be a good idea, especially in light of the fact that the public apparently wants it. Let’s analyze this concept from a different perspective by considering another example that is far more extreme. What would happen if lawmakers in the state of Alabama suddenly decided that it would be desirable to bring back the indisputably repugnant practice of racial segregation. Let’s also assume that this outlandish initiative somehow found its way onto the ballot and a majority of the state’s voters supported it. Should the Alabama legislature enact such a patently offensive law? Should the governor sign the law? In the event that any state attempted such a maneuver, it would clearly violate a host of federal civil rights laws that clearly preclude such dehumanizing practices. Such a law would certainly be struck down on a multitude of statutory and constitutional grounds (including the Supremacy Clause). While this is, undeniably, an outrageous example, it makes the same point. Just because a majority of the populace may be clamoring for something does not mean that the public’s desire must become law.
On the surface, these two examples of Supremacy Clause violations (marijuana in Colorado and racial segregation in Alabama) appear to be totally dissimilar. A common retort to this type of example that is frequently heard from marijuana enthusiasts goes something like; “You can’t compare these two things. One is harmless and the other is evil.” On the surface, that response is certainly reasonable. But is the underlying concept in these two examples not exactly the same? Federal law contains a clear prohibition on a specific act, one of which may be harmless and the other undoubtedly evil, yet a particular state or group of states decides that the law should not apply because the voters or lawmakers want something different.
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Would the situation really be different if Colorado’s voters decided to legalize recreational use of cocaine? What about heroine? Regardless of the example, the point is the same. It is not up to any single state or group of states to defy a federal law. Rather, it is the responsibility of the United States Congress and the President to follow the established legislative process that has been in place for well over two centuries. In the absence of such action by Congress and the President, it is the responsibility of the executive branch of government to enforce the federal law and the responsibility of the courts to strike down any law that is unconstitutional.
The Department of Justice Joins the Party
In a move that can only be described as inexplicable, the DOJ’s Office of Public Affairs issued a press release on August 29, 2013 entitled; “Justice Department Announces Update to Marijuana Enforcement Policy.” In its convoluted and disjointed (pun intended) press release, the DOJ reiterated its position that
marijuana remains an illegal drug under the Controlled Substances Act,
federal prosecutors will continue to aggressively enforce this statute. In the same press release it was noted that in states such as Colorado and Washington that have enacted laws to authorize the production, distribution and sale of marijuana, the DOJ “expects these states to establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance.
Next, in a maneuver that could only be accomplished by a schizophrenic federal bureaucracy, after summarizing how these two states have allowed federal law to be willfully violated, the DOJ (in the same press release) informed the governors of the two states that “it is deferring its right to challenge their legalization laws at this time.” Allow me to translate this incomprehensible and irrational legal jargon into plain English: the United States Department of Justice, the most important federal law enforcement entity in the country, has announced that, for all intents and purposes, it plans to ignore this matter.
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Whether or not one agrees with the legalization of recreational marijuana use or not is beside the point. No one individual, even the Attorney General of the United States, should be able to unilaterally determine which laws will be enforced and which laws will not be enforced. Obviously, a certain amount of judgment and discretion will always be required in this arena. Not every immaterial violation of every law can possibly be enforced. But a public pronouncement that a major provision of a significant law such as the Controlled Substances Act will not be enforced is unprecedented. It is not an exaggeration to think that such a blatantly defiant move by one of the most senior officials in the executive branch has the potential to shake the very foundation of our system of government. One can now only wonder what other federal statutes are in jeopardy of becoming irrelevant at the whim of the attorney general.
There is another major dilemma that is likely to flow from the actions of President Obama’s DOJ. It is highly likely that the next President of the United States, whether Democrat or Republican, will appoint a new attorney general to head the DOJ. Suppose that person changes course and directs the federal law enforcement apparatus to aggressively prosecute those who have just been given a “green light” to produce, distribute and use marijuana. What message does that send to a citizenry that will be justifiably confused and angered? The most likely result would be chaos. One administration assures the marijuana industry that it can proceed without fear of the heavy hand of government initiating criminal prosecution and the next administration reverses course. The resulting confusion would be unimaginable.
Colorado, Washington and the federal government are playing a very dangerous game in which marijuana producers and users are likely to be the losers. If Congress does not modify the Controlled Substances Act (which does not appear likely in the foreseeable future) so that a direct conflict with the various state laws is averted, then these laws will not withstand a constitutional challenge and will be struck down.
Regardless of one’s views on the issue of marijuana (harmless substance, dangerous drug or something in between), these laws cannot withstand Constitutional scrutiny and will, in all likelihood, not survive. The euphoria of the segment of the population that has been rejoicing since November 6, 2012 will come to an abrupt end. That is the result that is mandated by our Constitutional framework. The only remaining question is this: After all of the legal gyrations, will anything positive have been accomplished? The answer to this question will unfold in the coming years. In the meantime, it appears that marijuana users from Denver to Seattle will continue to enjoy that “Rocky Mountain High!”
 This article focuses on the Colorado law since that state appears to be getting the vast majority of media attention. Moreover, an in-depth analysis of both laws (Colorado and Washington) would be duplicative and unnecessarily tedious.
 The Administration’s opposition to strict enforcement of federal drug laws is well documented. Nevertheless, an analysis of the reasons for the DOJ’s position is beyond the scope of this article.
 In United States v. Cannabis Cultivator’s Club, 5 F.Supp2d 1086 (N.D. California 1998), the court addressed the direct conflict between the state’s Compassionate Use Act and the federal Controlled Substances Act.
 Most laws are passed by state legislatures and signed by the governor. Few laws actually result from a referendum approved by voters, but this example is designed to model the Colorado situation.
 While such a scenario may seem far-fetched to younger readers, it was only 51 years ago that George Wallace defiantly made the following statement in his inaugural speech on January 14, 1963; “…I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say segregation now, segregation tomorrow, segregation forever.”