I think this this is one of Tuesdays results that will prove to be the most legally debated.
On Tuesday Colorado and Washington became the first two states to legalize Marijuana. Not “Medical” Marijuana but legal for recreational purposes. This is in direct defiance of Federal drug statutes.
Marijuana is a Schedule I drug these drugs are considered THE most dangerous and are defined as:
Required findings for drugs to be placed in this schedule
- The drug or other substance has a high potential for abuse.
- The drug or other substance has no currently accepted medical use in treatment in the United States.
- There is a lack of accepted safety for use of the drug or other substance under medical supervision.
Except as specifically authorized, it is illegal for any person:
- to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
For reference purposes Heroin is also a Schedule I drug.
The FDA was originally founded and given its powers under the “Interstate Commerce” Clause of the Constitution, basically giving the Federal government control over anything that crosses state lines. That power has become very broad in it’s scope.
Now here is where it gets interesting. As many of you know there are many states with medicinal marijuana laws, all of these states are in violation of federal drug laws and the Federal government CAN (and does) come in and charge people with federal drug offenses in these states.
The Medicinal use has somewhat held the feds at bay though, I mean who wants to put a grandmother with Glaucoma behind bars for possession of pot? Now these two states have passed laws that fly in the face of the power of the federal government.
Enter the constitutional challenge.
The Tenth Amendment states the Constitution’s principle of federalism by providing that powers not granted to the federal government by the Constitution, nor prohibited to the States, are reserved to the States or the people.
Now lets say that the Marijuana that people in Seattle smoke is grown, sold and consumed in the state of Washington, it hasn’t crossed any state lines, therefor it is none of the Federal governments business. The tenth amendment allows the states to legislate it or not.
The feds will say Oh no that is prohibited to the states by the Federal controlled substances act…a law whose authority is based on the Interstate Commerce Clause.
Now, however you may feel about this there’s a further wrinkle. Lets say The Supreme Court hears this (and its a solid bet they will) If they uphold the right of Colorado and Washington to essentially legislate contrary to the Controlled substances Act, that would be seen as making the controlled substances act at least partially unconstitutional…..states would be responsible for making their own drug laws and enforcing them with the feds only being involved if the drugs cross state lines and violate federal law in doing so.
But in reality it generally already works this way, but the Feds still have the power to step in and make federal charges when they see fit.
The easiest and most intelligent move for the feds at this point is to reclassify Marijuana by amending the Controlled Substances Act, but that move simply delays the problem, what happens when a state legalizes Psilocybin mushrooms for headaches? (Psilocybin is a recognized prevention for debilitating cluster headaches)
Now you have an idea of what the courts could be wrestling with….This WILL get interesting….much more so than Measure B, which, constitutionally speaking, is pretty cut and dried.