In light of the Justice Department’s decision to use prosecutorial discretion in the pursuit of marijuana offenders, and the latest release made by the department stating that it will not “sue to block laws legalizing marijuana in 20 states and the District of Columbia…” (New York Times), this might be a good time to analyze some of our current prohibition laws concerning cannabis, and the juxtaposition between State’s rights and the Federal laws that stand in contradiction. It is not my opinion that the federal government has any right to regulate the intrastate commerce of the cultivation and use of marijuana, even if it is for commercial use. So long, of course, that that use is contained within a given state where the voters have declared it legal for recreational use (i.e. Colorado, Washington).
My opinion notwithstanding, the Supreme Court has ruled in the case of Gonzales v. Raich 2005 that Congress does in fact hold jurisdiction on the regulation of any article of commodity under the Commerce Clause of the Constitution. Drawing on the case of Wickard v. Filburn 1942, the Court has found that the regulation of marijuana under the Controlled Substances Act 1970 by Congress, albeit intrastate commerce, has a reasonable affect on the entire market of marijuana cultivation. Concluded are the similarities between Gonzales v. Raich, and Wickard v. Filburn, where in the latter it was ruled that wheat production fell under the Commerce Clause, giving Congress the authority to tell farmers when and how to grow their own wheat, even if only for personal consumption.
What this means is, according to these rulings, Congress has full authority to tell you what you can and cannot grow. Let’s replace marijuana, or even wheat with more common garden vegetables, such as tomatoes. Most people with gardens will grow tomatoes, and Congress, according to the Court, has authority in regulating a particular garden hobbyist’s cultivation of something as innocuous as tomato cultivation. The Court ruled since the cultivation and consumption of a particular commodity may affect the overall market of that commodity, in aggregate or otherwise, it may be controlled by our federal government. If you were to grow and consume anything, then that may prevent you from buying them somewhere else, and if we all grow our own vegetables, and were self sustained, Congress would have full authority to end this practice. Therefore, cannabis cultivation, if grown and consumed within a state, and not for commercial use, may be outlawed, because “If Congress decides that the ‘total incidence’ of a practice poses a threat to a national market, it may regulate the entire class.” (law.cornell.edu). Marijuana cultivation poses a variety of difficulties for all who enforce the laws contained within the Controlled Substances Act, being the DEA et al.
Eric Holder simply chose to use prosecutorial discretion on this matter. In my opinion, it is due to the large task at hand of using limited resources to undermine the people of Colorado, and Washington’s new laws. There is a quote I recall from which I cannot remember the author. That quote may loosely state that the people can be policed only as much as the people choose to be policed. There is only so much law enforcement can do when a great majority is in violation of a given law. I believe that the further decriminalization and legalization of marijuana from state to state will only confound and undercut any administration’s efforts to control what their own constituents have approved per state.
- DOJ will not challenge state marijuana legalization efforts (jurist.org)
- More Evidence That Scalia’s Dissent Was Originally Written to Be the Opinion of the Court… (delong.typepad.com)