A ruling in a U.S. Supreme Court case about sports gambling on Monday has positive implications for marijuana legalization.
The case, Murphy v. NCAA, centered on whether the Constitution’s anti-commandeering doctrine prevents the federal government from forcing states to keep prohibitions of certain federally banned activities on their own lawbooks.
Specifically at issue was whether a New Jersey ballot measure that legalized betting on sports and subsequent actions by state legislators are invalidated by a congressionally approved law banning states and local governments from licensing or otherwise authorizing gambling on team sports.
The Supreme Court voted 7-2 on Monday to overturn the federal gambling prohibition.
If the justices had ruled the other way, state marijuana laws could have been in greater jeopardy of federal intervention.
In that instance, according to an analysis by the Congressional Research Service, “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.”
Ironically, the case was brought to the Supreme Court by then-Gov. Chris Christie (R), who has repeatedly said he thinks the federal government should intervene in state marijuana laws. He cheered the ruling on Monday, calling it “a great day for the rights of states and their people to make their own decisions.”
A great day for the rights of states and their people to make their own decisions. New Jersey citizens wanted sports gambling and the federal Gov't had no right to tell them no. The Supreme Court agrees with us today. I am proud to have fought for the rights of the people of NJ.
— Governor Christie (@GovChristie) May 14, 2018
“This was the only sensible outcome in this case unless the Court was willing to gut its anticommandeering jurisprudence,” Sam Kamin, who serves as the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver’s Sturm College of Law, told Marijuana Moment in an interview. “Congress cannot tell the state legislatures what they can and can’t do. Congress can prohibit sports gaming everywhere, but it can’t make the states do the same.”
If the Court had ruled to uphold the gambling prohibition, it wouldn’t have automatically invalidated state cannabis laws. But Congress would have been empowered to pass a new law, broader than the current Controlled Substances Act (CSA), that required states to keep their own marijuana bans in effect.
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.
Kamin, who filed an amicus brief in the case along with other law professors, said that the case has “obvious” implications for marijuana.
“The CSA stands, but so do state legalization laws,” he said. “Congress can’t prohibit those laws, force the states to repeal them or force the states to go back to prohibition. Almost everyone who’d thought carefully about these issues knew it was so, but it’s nice to see it recognized by a 7-2 Supreme Court.”
The Court’s opinion, written by Justice Samuel Alito, contains one specific reference to marijuana:
“The concept of state ‘authorization makes sense only against a backdrop of prohibition or regulation. A State is not regarded as authorizing everything that it does not prohibit or regulate. No one would use the term in that way. For example, no one would say that a State ‘authorizes’ its residents to brush their teeth or eat apples or sing in the shower. We commonly speak of state authorization only if the activity in question would otherwise be restricted… The United States maintains that one ‘would not naturally describe a person conducting a sports-gambling operation that is merely left unregulated as acting ‘pursuant to’ state law.’ But one might well say exactly that if the person previously was prohibited from engaging in the activity. (‘Now that the State has legalized the sale of marijuana, Joe is able to sell the drug pursuant to state law.’)”
It also has several passages in which legalization supporters will likely see parallels to the cannabis debate:
“The legalization of sports gambling is a controversial subject. Supporters argue that legalization will produce revenue for the States and critically weaken illegal sports betting operations, which are often run by organized crime. Opponents contend that legalizing sports gambling will hook the young on gambling, encourage people of modest means to squander their savings and earnings, and corrupt professional and college sports.
“The legalization of sports gambling requires an important policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution.”
Georgetown Law professor Randy Barnett, who unsuccessfully argued a medical cannabis case before the Supreme Court, said that the new ruling likely shields state marijuana laws from challenges claiming that they are legally preempted by federal prohibition.
This is entirely different than Raich, which did not authorize Congress to tell California what its medical marijuana policy must be. But it does suggest that state schemes actively regulating marijuana (like CA & CO) are safe from a preemption challenge. https://t.co/0ghAgFI1iJ
— Randy Barnett (@RandyEBarnett) May 14, 2018
O’Rourke And Cruz Clash On Marijuana And Drugs At Senate Debate
Candidates in one of the most contentious U.S. Senate races in the country this year clashed about the issues of marijuana legalization and drug policy reform during a debate on Friday night.
“I want to end the war on drugs and specifically want to end the prohibition on marijuana,” Democratic Congressman Beto O’Rourke said in response to an attack on his drug policy record from Republican Sen. Ted Cruz, whom he is seeking to unseat in November.
During one of the most heated exchanges of the hour-long debate, the GOP incumbent slammed O’Rourke for sponsoring an amendment as an El Paso city councilman in 2009 that called for a debate on legalizing drugs as a possible solution to violence along the Mexican border.
“I think it would be a profound mistake to legalize all narcotics and I think it would hurt the children of this country,” Cruz argued.
He also criticized a bill the Democrat filed in Congress to repeal a law that reduces highway funding for states that don’t automatically suspend drivers licenses for people convicted of drug offenses. “That’s a real mistake and it’s part of pattern,” he said.
“There’s a consistent pattern when it comes to drug use, that in almost every single instance, Congressman O’Rourke supports more of it.”
Calling the issue “personal to me,” Cruz spoke about his older sister, who died of a drug overdose.
“To be clear, I don’t want to legalize heroin and cocaine and fentanyl,” O’Rourke countered.
“What I do want to ensure is that where, in this country, most states have decided that marijuana will legal at some form—for medicinal purposes or recreational purposes or at a minimum be decriminalized—that we don’t have another veteran in this state, prescribed an opioid because the doctor at the VA would rather prescribe medicinal marijuana but is prohibited by law from doing that,” he said.
It’s time to end the war on drugs. That starts by ending the federal prohibition on marijuana.
— Beto O'Rourke (@BetoORourke) September 21, 2018
Enumerating other potential beneficiaries of cannabis reform, the Democrat also referenced an “older woman with fibromyalgia” and “an African-American man, because more likely than not, that’s who will be arrested for possession of marijuana, to rot behind bars, instead of enjoying his freedom and the opportunity to contribute to the greatness of this country.”
Cruz, who called O’Rourke, “one of the leading advocates in the country for legalizing marijuana,” said that he thinks ending cannabis prohibition “is actually a question on which I think reasonable minds can differ.”
“I’ve always had a libertarian bent myself,” he said. “I think it ought to be up to the states. I think Colorado can decide one way. I think Texas can decide another.”
But despite his support for letting states set their own cannabis laws, which he also voiced during his failed candidacy for the 2016 Republican presidential nomination, Cruz hasn’t cosponsored a single piece of legislation during his time in the Senate that would scale back federal marijuana prohibition.
Ted Cruz accidentally advocating against marijuana legalization, an incredibly popular policy in the country and in Texas…
— Texas College Dems (@CollegeDemsTX) September 21, 2018
Earlier in the debate, the two sparred over the killing this month of Botham Jean, an African-American man shot in his own apartment by a Dallas police officer, a subject about which O’Rourke recently made headlines by calling out in a fiery speech to a black church.
Photo courtesy of NBC News.
Lawmaker Pushes For Marijuana Legalization In Kenya
A Kenyan lawmaker is introducing legislation to legalize marijuana nationwide.
Member of Parliament Kenneth Okoth wrote a letter to the National Assembly speaker on Friday, requesting help to prepare the legislation so that it can be published.
The bill would decriminalize cannabis possession and use, clear criminal records of those with prior cannabis-related convictions, enact a legal and regulated commercial sales program and impose “progressive taxation measures” in order to “boost economic independence of Kenya and promote job creation.”
It's high time Kenya dealt with the question of #marijuana like we do for miraa, tobacco, and alcohol#DecriminalizeIt #LegalizeIt #RegulateIt #TaxIt #HarmReduction #PettyOffences @YoungMPsKenya @HumanRightsMPs @KEWOPA @ICJKenya @lawsocietykenya @shecyclesnbi @DavidNdii @gathara pic.twitter.com/6ISnxjt2gS
— Kenneth Okoth, MP Kibra (@okothkenneth) September 21, 2018
Currently, marijuana (or “bhang,” as it’s locally known) is illegal in Kenya—as it is in most of Africa.
Another provision of the draft legislation concerns “research and policy development.” Okoth wants the country to conduct studies on the medical, industrial, textile and recreational applications of cannabis. And that research would have a “focus on the preservation of intellectual property rights for Kenyan research and natural heritage, knowledge, and our indigenous plant assets,” according to the letter.
Kenya Gazette special issue "..Act of Parliament to decriminalize the growth and use of Marijuana.." pic.twitter.com/gXFNx8ehbC
— The African Voice (@teddyeugene) September 21, 2018
“It’s high time Kenya dealt with the question of marijuana like we do for tobacco, miraa, and alcohol,” Okoth wrote on Facebook.
“Legalize, regulate, tax. Protect children, eliminate drug cartels, reduce cost of keeping petty offenders in jail. Promote research for medical purposes and protect our indigenous knowledge and plants before foreign companies steal and patent it all.”
Okoth’s push for legalization in Kenya comes days after South Africa’s Constitutional Court ruled that individuals can grow and use marijuana for personal purposes. The court determined that prohibition violated a person’s right to privacy, effectively legalizing cannabis in the country.
It’ll take a while for Okoth’s bill to move forward. The legislation will need cabinet approval, then it must be published so that all interested parties can review the proposal before it enters into parliamentary debates. Whether Okoth’s fellow lawmakers will embrace the legislation is yet to be seen.
Photo courtesy of Wikimedia.
Governor Signs Marijuana Legalization Bill, Making History In US Territory
With a governor’s signature on Friday, the latest place to legalize marijuana in the U.S. isn’t a state. It’s the Commonwealth of the Northern Mariana Islands (CNMI)—a tiny Pacific territory with a population of just over 50,000.
Under the new law signed by Gov. Ralph Torres (R), adults over 21 years of age will be able to legally possess up to one ounce of marijuana, as well as infused products and extracts. Regulators will issue licenses for cannabis producers, testing facilities, processors, retailers, wholesalers and lounges. Home cultivation of a small number of plants will be allowed.
(Marijuana Moment’s editor provides some content to Forbes via a temporary exclusive publishing license arrangement.)
Photo courtesy of Max Pixel.