Thursday, January 04, 2018

Sessions says Feds can prosecute pot sales in legalized states

Sessions says Feds can prosecute pot sales even in states with legalized marijuana

Debatable. Long discussion follows the jump.

The Supremacy Clause of the Constitution (Article VI, Clause 2) establishes that "the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land."

But the 10th Amendment says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States."

So there are these legal issues:

1. In theory, any conflict between the Constitution and an amendment must be resolved in favor of the amendment. That's the whole purpose of amendments.

2. The Supremacy Clause specifically restricts its direction to federal laws "pursuant to" the Constitution. The states are not bound to defer to an unconstitutional or extra-constitutional law. The Constitution specifically gives the Feds the power to regulate interstate commerce, and does not mention intrastate commerce. Since it specifically mentions one and conspicuously omits the other, one may well conclude that the intent of the Founding Fathers was to let the states regulate intrastate commerce as one of their reserved powers.

Of course it is not for me to untangle this. That battle would have to be fought in the courts.

There is also this political issue: 64% of Americans favor legalization, including a majority of Republicans, and the number is increasing rapidly and constantly. Among voters under 30, the percentage supporting legalization is about 80.

(And the percentage supporting medical marijuana is getting close to unanimous, even among old farts, who actually need it the most. "92 percent of those 65 years and up support legal access to marijuana for medical purposes.")

Some very good reader feedback:

1. Rather than this being settled in the courts - I think that it would be wise for Congress to simply legalize weed. If the courts side with the states I think it would probably be the undoing of the FDA. It would also open the door for the potential legalization of far more controversial drugs. While far-fetched it would set the precedent that simply by a state vote, any drug (meth, heroin, etc.) could become legalized. Seems like a path that a lot of rational people would like to avoid.

2. The 10th amendment has been worthless for years. It's been interpreted as "any powers the feds want are granted it by the constitution" so basically, what they want, they get. How many instances of a state wanting to do something contrary to fed law and that going the way of the state can you think of? I'm coming up empty. We stopped being the united States ages ago. The fed just lets us pretend we're separate entities because it makes elections easier for them.

2 comments:

  1. Rather than this being settled in the courts - I think that it would be wise for Congress to simply legalize weed. If the courts side with the states I think it would probably be the undoing of the FDA (at least on the drug side) after all it is votes not research (because of existing laws there has been virtually no clinical studies on the medicinal benefits of MJ - I had a lengthy and informative conversation with a Colorado State Senator on the issue as he was pushing legislation to open the door for that research. It would also open the door for the potential legalization of far more controversial drugs (while far fetched it would set the precedent that simply by a state voting meth, heroin, etc. could become legalized). Seems like a path that a lot of rational people would like to avoid.

    ReplyDelete
  2. The 10th amendment has been worthless for years. It's been interpretated as "any powers the feds want are granted it by the constitution" so basically, what they want, they get. How many instances of a state wanting to do something contrary to fed law and that going the way of the state can you think of? I'm coming up empty. We stopped being the united States ages ago. The fed just lets us pretend we're separate entities because it makes elections easier for them.

    ReplyDelete