3 ms·

This is some relevant reading from a credible authority: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/26/federalism-the-constitution-and-sa

by bmelton 10y ago

This is some relevant reading from a credible authority: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/26/federalism-the-constitution-and-sanctuary-cities/?utm_term=.a5ab02a4853b https://www.washingtonpost.com/news/volokh-conspiracy/wp/201... The short version is that the federal government has the power to pass laws, but under federalism, the states are not obligated to help the federal government enforce those laws. That's how sanctuary cities and the like are born -- by states simply refusing to assist the federal government in their endeavors. State marijuana legalization is a slightly different animal. On the one hand, they're exercising their anti-commandeering power (by refusing to arrest marijuana users). On the other hand, they're directly defying the supremacy clause by passing laws contrary to the federal laws, which is a step beyond anti-commandeering. It hasn't been tested in court, but a likely argument would be one based on Marbury v Madison, in which the relevant portion is that congress may not pass an unconstitutional law. American jurisprudence tells us that an unconstitutional law need not be enforced by any court, officer or person, as an unconstitutional law is not a law at all. The states, if challenged, could assert that a federal ban on marijuana is unconstitutional on its face as it flies in the face of both the 9th and 10th amendments (and possibly the 5th, with maybe a sprinkling of the 14th, depending). Of course, that hasn't happened, and this is all conjecture, and it's a crapshoot as to whether or not it would work, but it's not impossible that the federal government hasn't exerted too much top down pressure on early marijuana states because they wouldn't want to chance the precedent of losing.

imh 10y ago
>The states, if challenged, could assert that a federal ban on marijuana is unconstitutional on its face as it flies in the face of both the 9th and 10th amendments (and possibly the 5th, with maybe a sprinkling of the 14th, depending). This part sounds critical, but I don't quite follow. If you're willing to expand on that, I'd love to hear about it.
- bmelton 10y ago
  I'll try to put this as straightforwardly as possible, but it's a meandering topic at best. The gist of what I'm referring to is found here[1], so you should probably stop and read that first. Past that, the relevant things are two main doctrines, the first is the 9th[2] and 10th[3] amendments collectively, and the other is "enumerated powers[4]". So, the general principle is that 1) Congress doesn't have the power to do anything that they are not expressly authorized to do by the constitution, or that is not obviously implied by an enumerated power (for example, if I expressly enumerated you the power to apportion the jelly beans, it would be implied that you could count the jelly beans, audit the jelly beans, etc.) Because congress is not expressly enumerated any power to make marijuana illegal, the states (if challenged) could assert that they have neither an enumerated or implied power to do so, and the laws that they made to illegalize marijuana consumption were not constitutional to begin with. Under the interstate commerce clause[5], they may have the ability to 'regulate' the sale and/or distribution of marijuana, but banning it for private consumption may be a bridge too far considering... The Ninth Amendment, which states "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," combined with the Tenth Amendment, which states "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," means that the powers of the federal government should not be used to take powers away from the citizenry, and that any powers not delegated to the federal government (expressly or implied) are reserved to the states or the people. It is this last clause that allows states to decline orders by the federal government where are not obviously granted those powers to the federal government by the constitution. Put simply, the general position is that the federal government has supremacy on matters that the constitution says it should, but should defer to the people or the states on powers the constitution doesn't mention. Because the federal government doesn't have the power to ban marijuana, then the states could argue that, and assert their own soveriegnty on its regulation. Because the states would be granting more rights to the people than the federal government in this scenario, and because the burden of enforcing it would be exclusive to the individual states, they would have a pretty good claim on grounds of federalism. [1] - http://www.constitution.org/uslaw/16amjur2nd.htm http://www.constitution.org/uslaw/16amjur2nd.htm [2] - https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_... [3] - https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution#Text https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_... [4] - https://en.wikipedia.org/wiki/Powers_of_the_United_States_Congress https://en.wikipedia.org/wiki/Powers_of_the_United_States_Co... [5] - https://en.wikipedia.org/wiki/Commerce_Clause https://en.wikipedia.org/wiki/Commerce_Clause

by bmelton 10y ago

imh 10y ago

>The states, if challenged, could assert that a federal ban on marijuana is unconstitutional on its face as it flies in the face of both the 9th and 10th amendments (and possibly the 5th, with maybe a sprinkling of the 14th, depending). This part sounds critical, but I don't quite follow. If you're willing to expand on that, I'd love to hear about it.

bmelton 10y ago
I'll try to put this as straightforwardly as possible, but it's a meandering topic at best. The gist of what I'm referring to is found here[1], so you should probably stop and read that first. Past that, the relevant things are two main doctrines, the first is the 9th[2] and 10th[3] amendments collectively, and the other is "enumerated powers[4]". So, the general principle is that 1) Congress doesn't have the power to do anything that they are not expressly authorized to do by the constitution, or that is not obviously implied by an enumerated power (for example, if I expressly enumerated you the power to apportion the jelly beans, it would be implied that you could count the jelly beans, audit the jelly beans, etc.) Because congress is not expressly enumerated any power to make marijuana illegal, the states (if challenged) could assert that they have neither an enumerated or implied power to do so, and the laws that they made to illegalize marijuana consumption were not constitutional to begin with. Under the interstate commerce clause[5], they may have the ability to 'regulate' the sale and/or distribution of marijuana, but banning it for private consumption may be a bridge too far considering... The Ninth Amendment, which states "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," combined with the Tenth Amendment, which states "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," means that the powers of the federal government should not be used to take powers away from the citizenry, and that any powers not delegated to the federal government (expressly or implied) are reserved to the states or the people. It is this last clause that allows states to decline orders by the federal government where are not obviously granted those powers to the federal government by the constitution. Put simply, the general position is that the federal government has supremacy on matters that the constitution says it should, but should defer to the people or the states on powers the constitution doesn't mention. Because the federal government doesn't have the power to ban marijuana, then the states could argue that, and assert their own soveriegnty on its regulation. Because the states would be granting more rights to the people than the federal government in this scenario, and because the burden of enforcing it would be exclusive to the individual states, they would have a pretty good claim on grounds of federalism. [1] - http://www.constitution.org/uslaw/16amjur2nd.htm http://www.constitution.org/uslaw/16amjur2nd.htm [2] - https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_... [3] - https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution#Text https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_... [4] - https://en.wikipedia.org/wiki/Powers_of_the_United_States_Congress https://en.wikipedia.org/wiki/Powers_of_the_United_States_Co... [5] - https://en.wikipedia.org/wiki/Commerce_Clause https://en.wikipedia.org/wiki/Commerce_Clause