Judiciary Chairman: State Laws Legalizing Marijuana Are Unconstitutional

Terence P. Jeffrey | January 28, 2015 | 5:25pm EST
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A pro-marijuana rally in Denver on April 20, 2013. (AP Photo)

(CNSNews.com) - Senate Judiciary Chairman Chuck Grassley (R.-Iowa) said in a floor speech Tuesday that state laws legalizing marijuana are unconstitutional and that the Obama administration's decision not to enforce the federal law banning marijuana in states that have legalized the drug is an abuse of prosecutorial discretion.

Colorado, Washington, Oregon, Alaska and the District of Columbia have all passed initiatives over the past three years legalizing marijuana use.

Marijuana, however, is banned nationwide by the federal Controlled Substances Act, which lists it as a Schedule 1 narcotic.

“The Controlled Substances Act prohibits marijuana possession nationwide,” said Grassley. “Under the Supremacy Clause of the Constitution, state laws to the contrary are unconstitutional.

“Normally the federal government sues states that enact such laws,” said Grassley. “But when Colorado and other states legalized marijuana, the Obama administration directed federal law enforcement to refrain from using its resources to enforce federal law in those states.”

“It did not make individualized prosecutorial decisions but a very blanket refusal to enforce federal law, contrary to the oath,” said Grassley.

Because the administration has refused to enforce federal law, Grassley said, two states have been forced to ask the Supreme Court to protect them from the fallout within their own territories of Colorada’s marijuana legalization.

“Nebraska and Oklahoma, rather than the federal government, have sued Colorado, as those neighboring states argue they face a significant increase in marijuana and other drug-related harms as a result of the Colorado law,” said Grassley.

“To make matters worse, Attorney General Holder is expanding his refusal to apply federal marijuana laws to Indian reservations,” said Grassley. “Those reservations depend upon Federal law enforcement. He plans to allow tribes to petition unelected local prosecutors to decide whether the same non-enforcement of marijuana laws’ policy will apply to those reservations.”

Grassley argued that the Obama administration would not act this way if federal gun laws were at stake.

“Does anyone believe if a state decided dealers could sell guns without conducting the federally required background checks, that the Obama administration would ignore those states?” said Grassley.

In December 2012, President Obama said he did not think it made sense to enforce the federal marijuana ban against “recreational drug users.”

Barbara Walters of ABC News asked him: “Do you think that marijuana should be legalized?”

“I wouldn't go that far,” Obama said. “But what I think is that, at this point, Washington and Colorado, you've seen the voters speak on this issue. And as it is, you know, the federal government has a lot to do when it comes to criminal prosecutions. It does not make sense from a prioritization point of view for us to focus on recreational drug users in a state that has already said that under state law, that's legal.”

In a brief filed with the Supreme Court last month, Nebraska and Oklahoma asked the court to take up their case, arguing that government officials in Colorado were violating the federal Controlled Substances Act in implementing Colorado’s Amendment 64 that legalized marijuana.

“The Supremacy Clause of the Constitution mandates that ‘[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,’” Nebraska and Oklahoma said in their brief.

“The Constitution affords the federal government the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,’” Nebraska and Oklahoma said. “As such, the federal government has broad authority to regulate the status of drugs within the boundaries of the United States.”

“The U.S. Congress has exercised its authority to do so,” said Nebraska and Oklahoma. “The CSA, enacted in 1970 as part of the Comprehensive Drug Abuse Prevention and Control is a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five classes of ‘controlled substances.’

“Marijuana was classified by Congress as a Schedule I drug,” said Nebraska and Oklahoma. “Marijuana is therefore subject to the most severe restrictions contained within the CSA.”

“Colorado state and local officials who are now required by Amendment 64 to support the establishment and maintenance of a commercialized marijuana industry in Colorado are violating the CSA,” said Nebraska and Oklahoma.

“The retail marijuana laws embed state and local government actors with private actors in a state-sanctioned and state-supervised industry which is intended to, and does, cultivate, package, and distribute marijuana for commercial and private possession and use in violation of the CSA (and therefore in direct contravention of clearly stated Congressional intent),” they said.

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