Almost twenty years have passed
since the revolution in state medical marijuana laws first erupted. With eighteen jurisdictions joining that
revolution, questions about the relationship between state and federal laws
have come to the fore. Central to the
debates has been the role and force of the Tenth Amendment to the
Constitution. Unfortunately, most of
what has been said about that amendment has ranged between the mistaken and the
ridiculous. The time is ripe to examine
that amendment and find out its actual meaning.
The place to start is with the text itself.
Amendment X
The
powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people.
The
most straight-forward reading of this amendment is that it provides a series of
tests to determine whether a government (federal or state) may constitutionally
exercise a power that it claims. These
tests apply to both federal and state governments.
In
order to be constitutional, a power asserted by the federal government
(normally through a statute, executive order, or administrative regulation),
must be delegated to it by the Constitution.
In many cases that power will be one of those expressly delegated in
Article I. For instance, the Controlled
Substances Act has been upheld as a valid exercise of the power to regulate
Interstate Commerce.
The
express powers listed in Article I are not the only ones that the Constitution
delegates to the Federal government.
Other sources of powers for the Federal Government include:
-- the “necessary and proper” clause of Article I – source of the power to create a Federal bank exercised by the first Congress,
--the foreign affairs and commander in chief powers of Article II,
--the judicial clause of Article III,
--the “republican form of government” clause
--the “full faith and credit” clause.
-- the “necessary and proper” clause of Article I – source of the power to create a Federal bank exercised by the first Congress,
--the foreign affairs and commander in chief powers of Article II,
--the judicial clause of Article III,
--the “republican form of government” clause
--the “full faith and credit” clause.
The
XIV and XV Amendments added additional powers for the Federal Government to
insure equal protection of the laws and voting rights.
Unfortunately,
most of those arguing for increased state powers under the Tenth Amendment read
it as if it limited the Federal Government to only those powers expressly
enumerated in Article I. Many of them
actually misquote the text to read: “The powers not expressly [sic] delegated
to the United States…”. That
interpretation would completely enervate the government and is supported
neither by text nor by history.
The
Founders assumed that the states would continue to be responsible for the
regulation of most day-to-day activities.
But they also put constraints on those state activities. In order to comply with the Tenth Amendment,
state action must meet three tests: is the activity prohibited to the states by
the Constitution; is the power exercised one that has been delegated to the
Federal Government; and have the people themselves exercised that power?
The
Constitution imposes several strong prohibitions on the states. These include bans on monetizing anything but
gold or silver, interfering with contracts, refusing to give full faith and
credit to the laws of other states, and requiring the states to grant free
right of passage and residence of the inhabitants of other states. The XIV and XV Amendments additionally
forbade states from denying equal protection of the law to persons and from
interfering with the right to vote.
In
some states the people have directly taken powers from the state by exercise of
ballot initiative or referendum powers.
The most noted example of this direct application of popular power
identified in the Tenth Amendment is Proposition 13, through which Californians
limited the state’s power to impose property taxes. Many states, including
Oregon, Washington, Montana, California, Colorado, and Michigan, have used this
power to restrict the state’s power to punish the medical use of marijuana.
Most
state federalism[1]
problems arise when a state tries to act concerning a power delegated to the
federal government. These problems may
be divided into four categories:
1. A power has been delegated to the federal government, the federal government has not acted to implement that power, but a state attempts to do so;
2. The federal government has exercised a delegated power and a state has also exercised that power in a way not inconsistent with the federal power;
1. A power has been delegated to the federal government, the federal government has not acted to implement that power, but a state attempts to do so;
2. The federal government has exercised a delegated power and a state has also exercised that power in a way not inconsistent with the federal power;
3. The federal government
has acted and a state elects to do nothing in this area; and
4. The federal government
has acted and a state attempts to act in a way that is inconsistent with, or
that would interfere with, the federal activity.
The first of these cases –
no federal action in an area delegated to the federal government – presents
few, if any, problems for state drug laws because federal regulation in this
area is all encompassing. This whole area
can be relegated to the arcana of the Dormant Commerce Clause, now used
primarily to befuddle and terrorize law students.
The second situation – the
federal government has acted in a delegated area and a state government also
acts within that area – is common and causes few problems so long as the state
action is consistent with the federal action.
Robbing a nationally chartered bank and a federal crime and also is the
state crime of bank robbery. Both or
either of those governments may prosecute and punish. Likewise, a federal hate crime violating the
civil rights of the victim, may also be punished by a state as an assault or
battery.
Most current state drug laws
fall within this category. Possession or
distribution of marijuana is a violation of both federal and state statutes,
and each may enforce its own law. Often
cooperative task forces, mixing federal and state agents, join together to
investigate possible drug crimes and make arrests. Either or both of the governments may then
prosecute those arrested. The state law
does not have to exactly mirror the federal statute so long as it does not interfere
with federal enforcement of its own law.
Most state attempts to
reform marijuana laws fall into the third category. If the federal government has acted in an
area, a state may choose to do nothing regarding that subject. Even though the federal government has made
all possession or distribution of marijuana illegal, a state government may
elect not to take state action against marijuana users or growers itself. If a state purports to legalize marijuana for
medical use, it is in fact merely stating that the state will not use its
enforcement powers to prevent distribution or use of marijuana for medical
uses. It cannot set aside the federal
prohibition nor may it prevent the federal government from enforcing its laws
within the state’s border. On the other
hand, the federal government may not require a state to use its resources to
enforce the federal law. To date,
seventeen states have removed state penalties (“legalized”) medical marijuana,
and fourteen have replaced state criminal penalties for possession of some
amount of marijuana, imposing a small fine for a civil infraction instead
(“decriminalization”). The Tenth
Amendment allows a state to refrain from taking action against all or some
marijuana users. It does not allow a
state to set aside or interfere with the enforcement of a federal law.
Most problems for a state
arise when it attempts to act in an area in which the federal government has
acted and the state’s act conflicts or interferes with the federal law.
Although, as noted above, a
state may act if that action is roughly parallel to or supportive of federal
action, three activities are constitutionally forbidden to the states. A state may not nullify a federal law, direct
or compel its agents or citizens to violate a federal law, or take any action
that interferes with the enforcement of a federal law or makes its enforcement
more difficult.
Nullification, or the theory
that a state could set aside a federal law, preventing its enforcement within
that state, gained some support very soon after the ratification of the
Constitution. It was proposed, even though
no state attempted it, until the 1830s when South Carolina announced that it
intended to prevent imposition of the new tariff in its state. When President Jackson threatened to use
federal troops to enforce the law, South Carolina backed down, and no state has
seriously claimed the power to nullify since then.
The inability to nullify
federal law has greatly hampered state attempts to implement medical marijuana
laws. A marijuana distributor, legal
under state law, is still just an illegal drug dealer to the DEA and may be
convicted and sent to federal prison. If
a bank accepts deposits from that distributor, it has probably violated federal
money-laundering laws; and that distributor’s landlord may find his property
forfeited under the Continuing Criminal Enterprise Act. Many early attempts at medical marijuana laws
ran afoul of the nullification ban by trying to require doctors’ prescriptions
or distribution by pharmacies, either of which would be an attempt to nullify
federal laws regulating prescription drugs.
A state may not require one
of its agents or employees to violate the federal law. At least two states that originally proposed
state-run dispensaries and growing operations had to drop those
provisions. The New Jersey statute has
been delayed for about two years because the governor tried to require that a
state university grow all of the marijuana to be distributed.
The requirement that a state
not hamper or interfere with federal enforcement of federal law is proving
problematic. A California Appeals Court
has ruled that a city may not require marijuana dispensaries to obtain a
business permit because that could make federal law enforcement more difficult[2]. Likewise, a local ordinance requiring all
outdoor marijuana growing be screened by fences so that it could not be seen
from the street is probably unconstitutional.
A DEA agent’s job would be hampered because he would be unable to see
the illegal activity from the street.
The Tenth Amendment is not a
sword the states can use to cut down or limit the federal law. At most it is a shield, allowing states to
refrain from being co-opted into joining the federal enforcement. Constitutional state reform of marijuana law
is limited to the extent that, at most, a state may elect to be an onlooker of
the War on Drugs instead of a participant.
