A case being heard by the U.S. Supreme Court on Monday could have huge implications for the ability of states to legalize marijuana.
The case, Christie v. NCAA, centers on whether the Constitution’s anti-commandeering doctrine prevents the federal government from forcing states to keep prohibitions of certain federally- proscribed activities on their own lawbooks.
It began when New Jersey voters approved a 2011 ballot measure to legalize sports gambling. The following year, state lawmakers enacted legislation to regulate and license sports wagering at casinos and racetracks.
But the National Collegiate Athletic Association (NCAA) and four professional sports leagues sued, alleging that the state law violated a federal statute, the Professional and Amateur Sports Protection Act (PASPA). That law, enacted by Congress in 1992, prohibits states and local governments from licensing or otherwise authorizing betting on amateur or professional team sports. (It exempted prior state gambling schemes, namely the one that exists in Nevada.)
The U.S. Court of Appeals for the Third Circuit ruled for the sports leagues in 2013, interpreting PASPA to bar states from affirmatively licensing or permitting sports betting but not necessarily from merely repealing their own state prohibitions on gambling.
The Supreme Court rejected New Jersey’s request to hear the case on appeal, so the state enacted a new law that deleted its own prohibitions on certain gambling activities without enacting a new authorization or licensing scheme to regulate betting.
The leagues filed suit again, against the narrower revised law. Once more, the Third Circuit agreed, ruling in 2016 that PASPA prevents states from repealing their own sports gambling prohibitions in addition to blocking them from affirmatively licensing the activity.
The court essentially ruled that the Constitution’s anti-commandeering doctrine only prohibits the federal government from compelling states to adopt and enforce new policies and “does not command states to take any affirmative actions.” In this way, the court reasoned, it’s constitutional for the federal government to block states from amending policies they had previously adopted.
New Jersey appealed the case again, and this time the Supreme Court agreed to hear it. Oral arguments are scheduled for Monday morning and, although the statute in question concerns gambling, the outcome of the case could potentially throw up a huge roadblock to future state marijuana legalization efforts.
If the high court agrees with the Third Circuit, “the federal government may be able to regulate other areas like recreational marijuana…by freezing existing state laws in place, instead of through direct federal regulation,” according to the Congressional Research Service.
Sam Kamin, who serves as the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver’s Sturm College of Law, filed an amicus brief in the case along with other law professors, arguing that the Supreme Court should rule in favor of New Jersey. He told Marijuana Moment that the Third Circuit’s ruling is “shockingly wrong.”
“If the federal government can make the states pass laws, or keep laws that its citizens hate on the books, the core promise of anti-commandeering is a lie,” he said. “The point is that the citizens should be able to express their views through their state governments and should be able to remove those elected officials who are not working on their behalf. When the federal government meddles in this process, it muddies the waters and stifles the will of the voters.”
That said, if the Supreme Court rules for the sports leagues in favor of the federal gambling law’s broad reach, it wouldn’t automatically invalidate state marijuana laws. Rather, Congress would then be empowered to pass a new law, broader than the current Controlled Substances Act (CSA), that requires states to keep cannabis prohibitions on the books.
Under the CSA as currently written, Congress specifically says it doesn’t intend to “occupy the field” when it comes to drug policies, “including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State…” Instead, the CSA only seeks to preempt state laws that are so inconsistent with its provisions that the two cannot stand together.
Legalization supporters will likely take comfort that in the current political climate — in which a growing number of states are ending prohibition and polls continue to show growing bipartisan voter support for reform — it would be difficult for congressional marijuana opponents to form a majority of lawmakers in support of a new affirmative prohibition to punish states that dare to enact popular cannabis laws.
(That’s of course separate from the issue of congressional leadership blocking measures to reform current federal marijuana laws, an issue which has become more prominent as the House Rules Committee, for example, has repeatedly prevented cannabis amendments from being considered on the floor over the course of the past year.)
It is more than a little ironic that New Jersey Gov. Chris Christie (R), an ardent and vocal legalization opponent, is bringing a case in defense of states’ rights to enact their own laws which could have implications for cannabis policy.
During the course of his failed presidential campaign last year, Christie consistently pledged that if elected he would enforce federal marijuana prohibition even in states that have opted to legalize the drugs.
But in New Jersey’s petition asking the Supreme Court to take up the case, the state makes a point to raise concern about the case’s potential to block state marijuana reforms.
“If Congress can freeze in place existing state laws by prohibiting contrary state-law ‘authorizations,’ then the federal government can effectively force States to enact federal policies and thus will have greatly aggrandized its own power while foisting accountability for those policies entirely onto the States. Future efforts by States to legalize private conduct currently prohibited by state law—anything from recreational use of marijuana, to carrying concealed firearms, to working on Sundays—can be thwarted not just by a direct federally enforced prohibition of that conduct, but now also by a federal ban on state legislation that ‘authorizes’ such conduct. This is not a minor intrusion on state sovereignty. It is a sea change to our system of federalism. This Court should grant the petition to protect the Constitution’s carefully calibrated federal-state design and restore the balance between state and federal power that the Third Circuit’s decision has so thoroughly upended.”
“If the Third Circuit’s construction of ‘authoriz[ation] by law’ in PASPA as forbidding an undefined array of repeals is upheld, it is not difficult to imagine other examples in which Congress could dictate policy outcomes in States without ever having to legislate directly. Rather than enact gun control measures of its own, for example, Congress could prohibit States from relaxing existing restrictions on the purchase of firearms by particular persons. Or, no longer willing to expend the resources to police limitations on the usage of marijuana, Congress could repeal its own prohibitions on the use and sale of marijuana and instead prohibit States from repealing their own restrictions by enacting a PASPA-like law that prohibits States from authorizing the sale or use of marijuana ‘by law.’ Because few States would accept the choice of having totally unregulated gun possession or marijuana usage, Congress could achieve its policy objectives of stopping the spread of firearms or marijuana use even as it sets up the federal government’s own exit from those fields of regulation.”
The Trump administration, in a brief from its acting solicitor general filed in May, urged the Supreme Court not to take up the case.
A decision is expected sometime before next summer.
UN Committee Unexpectedly Withholds Marijuana Scheduling Recommendations
On Friday, the World Health Organization (WHO) was expected to make recommendations about the international legal status of marijuana, which reform advocates hoped would include a call to deschedule the plant and free up member countries to pursue legalization.
But in a surprise twist, a representative from the organization announced that WHO, a specialized agency of the United Nations, would be temporarily withholding the results of its cannabis assessment, even as it released recommendations on an opioid painkiller and synthetic cannabinoids. The marijuana recommendations are now expected to come out in January.
Earlier this year, the WHO Expert Committee on Drug Dependence (ECDD) released a pre-review of marijuana that included several positive, evidentiary findings. Cannabis has never caused a fatal overdose, the committee said, and research demonstrates that ingredients in the plant can effectively treat pain and improve sleep, for example.
The pre-review results prompted a more in-depth critical review, one of the final stages before the UN’s Commission on Narcotic Drugs (CND) makes a determination about whether marijuana should remain in the most restrictive international drug classification. But on Friday, as observers anxiously awaited that determination, WHO pumped the brakes. The committee said it needed more time “for clearance reasons,” according to the International Drug Policy Consortium.
The @WHO's Expert Committee on Drug Dependence met in November to discuss the scheduling of cannabis and related/other substances.
— IDPC (@IDPCnet) December 7, 2018
“This decision to withhold the results of the critical review of cannabis appears to be politically motivated,” Michael Krawitz, a U.S. Air Force veteran and legalization advocate who has pushed for international reform, said in a press release.
“The WHO has been answering many questions about cannabis legalization, which is not within their mandate. I hope the WHO shows courage and stands behind their work on cannabis, findings we expect to be positive based upon recent WHO statements and their other actions today.”
Those other actions include recommending that the opioid painkiller tramadol should not be scheduled under international treaties out of concern that such restrictions would limit access and hurt patients. In August, the committee made a similar recommendation about pure cannabidiol, or CBD, a component of marijuana.
While the critical review of marijuana itself has been postponed, the committee’s recommendations for its international scheduling are still expected to go up for a vote in the CND in March. If the committee does decide to recommend that cannabis be removed from international control, that would have wide-ranging implications for the reform efforts around the world.
In the U.S., the federal government has routinely cited obligations under international treaties to which it is a party as reasons to continue to ban marijuana and its derivatives. For instance, the Food and Drug Administration said in May that CBD doesn’t meet the criteria for federal scheduling at all, but that international treaties obliged it to recommend rescheduling to Schedule V.
“If treaty obligations do not require control of CBD, or if the international controls on CBD change in the future, this recommendation will need to be promptly revisited,” the agency said.
Where Trump’s Pick For Attorney General Stands On Drug Policy
President Donald Trump said on Friday that he plans to nominate William Barr to replace Jeff Sessions as U.S. attorney general.
Barr, who previously served in the position under President George H. W. Bush’s administration, seems less openly hostile to marijuana compared to other potential nominees whose names were floated—like New Jersey Gov. Chris Christie (R), who pledged to crack down on state-legal cannabis activity during his failed 2016 presidential bid.
That said, he developed a reputation as anti-drug while overseeing harsh enforcement policies under Bush.
….and one of the most highly respected lawyers and legal minds in the Country, he will be a great addition to our team. I look forward to having him join our very successful Administration!
— Donald J. Trump (@realDonaldTrump) December 7, 2018
The prospective nominee seems to share a worldview with the late president under whom he served. Bush called for “more prisons, more jails, more courts, more prosecutors” to combat drug use and dramatically increased the federal drug control budget to accomplish that goal. In 1992, Barr sanctioned a report that made the “case for more incarceration” as a means to reduce violent crime.
Barr wrote a letter explaining why he was releasing the report, which has now resurfaced as observers attempt to gauge how he will approach drug policy in the 21st century.
“[T]here is no better way to reduce crime than to identify, target, and incapacitate those hardened criminals who commit staggering numbers of violent crimes whenever they are on the streets,” he wrote. “Of course, we cannot incapacitate these criminals unless we build sufficient prison and jail space to house them.”
“Revolving-door justice resulting from inadequate prison and jail space breeds disrespect for the law and places our citizens at risk, unnecessarily, of becoming victims of violent crime.”
He also wrote a letter to lawmakers in 2015 defending the criminal justice system—including mandatory minimum sentences—and encouraging Congress not to bring up a sentencing reform bill.
“It’s hard to imagine an Attorney General as bad as Jeff Sessions when it comes to criminal justice and the drug war, but Trump seems to have found one,” Michael Collins, director of national drug affairs for the Drug Policy Alliance, said in a press release. “Nominating Barr totally undermines Trump’s recent endorsement of sentencing reform.”
“The vast majority of Americans believe the war on drugs needs to be replaced with a health-centered approach. It is critically important that the next Attorney General be committed to defending basic rights and moving away from failed drug war policies. William Barr is a disastrous choice.”
Another window into Barr’s criminal justice perspective comes from 1989, when he wrote a Justice Department memo that authorized the FBI to apprehend suspected fugitives living in other countries and extradite them to the U.S. without first getting permission from the country. The intent of the memo seemed to be to enable the U.S. to more easily capture international drug traffickers.
In 2002, Barr compared drug trafficking to terrorism and described the drug war as the “biggest frustration” he faced under Bush. The administration “did a very good job putting in place the building blocks for intelligence building and international cooperation, but we never tightened the noose,” he said.
Interestingly, as The Washington Post reported, Barr would be heading up a department where his daughter, Mary Daly, also works. Daly is the director of opioid enforcement and prevention efforts in the deputy attorney general’s office, and she’s established herself as an advocate for tougher criminal enforcement aimed at driving out the opioid epidemic.
Today’s drug policy landscape is a lot different than it was in the early 1990s, though, and it’s yet to be seen how Barr, if confirmed by the Senate, will navigate conflicting state and federal marijuana laws. He’ll also be inheriting a Justice Department that no longer operates under an Obama-era policy of general non-intervention, after Sessions moved this year to rescind the so-called Cole memo that provided guidance on federal cannabis enforcement.
But for advocates, at least it’s not the guy who said “good people don’t smoke marijuana” anymore and it won’t be one who campaigned for president saying he’d enforce federal prohibition in legal states, either.
Marijuana Bills Are Already Being Pre-Filed For 2019 Legislative Sessions
If you thought 2018 was a big year for marijuana, gear up for 2019. Before the next legislative session has even started, lawmakers in at least four states have already pre-filed a wide range of cannabis reform bills.
In Missouri, where voters approved a medical marijuana initiative during last month’s midterm election, a state lawmaker has already drafted a piece of legislation that would legalize cannabis for adult-use—though it would not establish a retail sales system. Instead, adults 21 and older would be allowed to possess up to two ounces of marijuana and grow up to six plants.
At least one marijuana decriminalization bill will be on the table in Virginia next year. The legislation would reduce the penalty for simple possession from a misdemeanor offense punishable by a maximum of a $500 fine and up to 30 days in jail to a civil penalty punishable by a $50 fine for first-time offenders, $100 for second-time offenders and $250 for subsequent offenses.
Marijuana Moment is currently tracking more than 900 cannabis bills in state legislatures and Congress. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.
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Down in Texas, lawmakers in the state House and Senate have already pre-filed no fewer than 12 marijuana-related bills. The legislative proposals range from constitutional amendments to fully legalize and regulate cannabis to simple decriminalization policies to lessen penalties for low-level possession.
Finally, in Nevada, where cannabis is legal for adults, lawmakers have introduced a flurry of what are called “bill draft requests” that relate to marijuana. Proposals to revise cannabis tax policies, create a state bank that could potentially service the legal industry and regulate hemp cultivation—among several others—could be taken up by the state legislature next year.
While the pre-filing process has already started in most states, there’s still time and it’s possible that more cannabis legislation will be introduced for consideration in coming days and weeks prior to the formal start of 2019 legislative sessions.