What might a change of administration in 2017 mean for marijuana legalization? Republican presidential candidate and New Jersey Governor Chris Christie made headlines in April claiming if he were elected president, he would “crack down and not permit” legalized marijuana. Recently, Gov. Christie doubled down on that statement when he said,
Marijuana is against the law in the states and it should be enforced in all 50 states. That’s the law and the Christie administration will support it. . . If you’re getting high in Colorado today, enjoy it. . . As of January 2017, I will enforce the federal laws.
When confronted with data indicating a majority of young Republicans support the legalization of marijuana, Christie dismissed the polls saying, “We can’t focus on what every poll says, everybody.”
So can the next president take legalized pot away?
The momentum to legalize marijuana appears to have picked up speed over the past several years, and public opinion has kept up. The federal government (which has not kept up with these legal changes) does have some authority it could wield over the states. That authority, however, has limits.
On one hand, federalism holds that, although the federal government classifies marijuana as a Schedule 1 drug under the Controlled Substances Act (CSA), it cannot compel states to enforce the CSA or to pass state laws furthering its goals. However, under the supremacy clause, federal law preempts state law where the two conflict. So where does that leave us?
There are two primary issues when evaluating what the federal government can and cannot do in relation to conflicting state and federal marijuana laws:
- Can the federal government itself enforce federal marijuana laws in states where marijuana is permitted?
- Does the federal government have the authority to prevent states from enacting laws inconsistent with federal laws in the first place?
The first issue has all but been resolved. In Gonzales v. Raich, federal authorities seized and destroyed marijuana cultivated within California, despite the fact that the plants were grown in compliance with that state’s medical marijuana laws. The action was challenged, and the Court found that Congress, in enacting the CSA, intended to regulate the supply and demand of controlled substances, including marijuana; hence, the federal government had the authority to enforce its prohibition on the cultivation and possession of marijuana nationwide.
Not conclusively answered, however, is the question about the federal government’s authority to prevent states from legalizing marijuana.
In other contexts the federal government has effectively superseded state law; for example, when Arizona passed SB 1070, or the “Support Our Law Enforcement and Safe Neighborhoods Act,” the law was challenged by the US Department of Justice. The act, which made it a misdemeanor for unauthorized immigrants to be present in Arizona without federally mandated registration documents, prompted the DOJ to sue in a federal court on supremacy clause grounds. After making it to the U.S. Supreme Court, the DOJ prevailed and 3 of 4 provisions of SB 1070 were struck down.
So it seems the answer to what could change if Christie–or another like-minded candidate–is elected president lies only in that administration’s discretionary restraint. The Obama administration, for its part, has officially stated it will not prosecute individuals for marijuana-related offenses if they are in compliance with state law, and in 2013 the Department of Justice followed suit, saying it would not sue to block laws legalizing marijuana.
Resource constraints were cited among the factors behind the administration’s decision, and it is not hard to imagine a different president finding the resources if properly motivated. Still, though a new president could flex federal muscle to try and undo laws that voters across the country have chosen to enact, the wisdom of doing so is another matter altogether.
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