Â Â Â Â The AP is reporting that the Justice Department is sending guidelines to federal prosecutors today advising them not to prosecute the sale of marijuana where such sales are in compliance with state laws.Â This news has interesting implications under the Constitution.
Â Â Â Four years ago the Supreme Court decided Gonzales v. Raich, a hard-fought case over the principle of federalism and the power of Congress under the Commerce Clause.Â The issue in that case was whether Congress had the power under the Commerce Clause to enforce the federal Controlled Substances Act against growers and sellers of marijuana in situations where state law made such use lawful – where the states had enacted laws allowing the medicinal use of marijuana.Â In a split decision the Supreme Court ruled that the federal law was constitutional and that the state "compassionate use" laws were therefore unconstitutional because they had been preempted by Congress.
Â Â Â Â Justice Sandra Day O'Connor dissented in Gonzales on the ground that the states should have the power to enact and enforce laws on this matter.Â She quoted Justice Louis Brandeis from the case of New State Ice v. Liebmann, in which he said:
Â Â Â Â A single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.
Â Â Â Â She concluded her dissent in Gonzales with this argument:Â
Â Â Â Â Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.
Â Â Â Â Today fourteen states have laws allowing marijuana to be used for medical reasons – and, according to the AP, today the Justice Department sent a message to the office of every U.S. Attorney suggesting that, as a matter of prosecutorial discretion and for the purpose of conserving resources for more important cases, that federal prosecutors should not pursue cases in which the production and use of marijuana is in compliance with state law.
Â Â Â Â I wonder if former Justice O'Connor feels vindicated?