Recreational Cannabis Under Attack

By: Sanford M. Stein

Social Change Comes Hard –but it Never Retreats TM

Well we’ve been waiting to hear what the Trump Administration might have to say about cannabis and now we have it. Press Secretary Sean Spicer has indicated the US Department of Justice will examine state regulated recreational cannabis, finding a difference between medical and recreational use. In an odd way that is a small victory, medical use is not under attack – for now. But this would be selective enforcement if it were to occur because all use of cannabis is illegal under the Controlled Substances Act (CSA)and Congress didn’t leave room for federal discretion. The point is that if the Trumpsters find that medical use has value, how can they justify enforcement against recreational use? Either they enforce the law or they don’t, or stated differently, if they support medical then they have to also support recreational, or amend the CSA.

A serious question is raised whether the CSA itself can pass constitutional muster when it comes to state laws regulating strictly intrastate activities. Congress’ ability to pass laws affecting nationwide activities is largely derived from the Commerce Clause, Article I Section

  1. Clause 3 of the U S Constitution

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The Commerce Clause has been the basis of the expansion of the federal government over states’ rights for more than half a century. Federal regulation and advancement of civil rights, voting rights, transportation and education are all derived from the Constitutional powers granted to Congress under the Commerce Clause to regulate commerce among the several states.

Virtually everything touches Interstate commerce; electricity is part of the national power grid, vehicles used to commute to work at the local dispensary are manufactured with parts coming from somewhere else; broccoli grown in California is sold in Maine. All of that is Interstate commerce, and it’s on that basis that Congress gets to lay down the law on cannabis possession and use.

Okay but laws need to have a purpose and regulate based on findings of some evil or problem in need of regulation. Legislative bodies are not supposed to make up stuff, they need a “rational basis” for the laws they pass or they will not have the “constitutional hook” necessary to be found a valid use of the legislative power.

That brings us back to the announcement that the Trumpsters want to distinguish between the recreational and medical use of cannabis. The CSA does not give them that option. Its clear they don’t want to regulate medical use and with most Americans in support of medical use they would be foolish to do so. Not only that, they have no authority, without a new or modified CSA, to find a difference between medical use and recreational use. If they were to simply enforce the current CSA ban on all cannabis there would be states rights rebellion, after all many state cannabis laws were passed by ballot referenda – a vote of the people

So let the debate begin: The right of the states to regulate in their own interest especially after a democratic vote of the people, or a paternalistic federal government supplanting its judgment over that of the people. I‘ll take the people’s case.


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