Are States Allowed to Legalise Marijuana?

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November 10, 2012 by Nash Riggins

Tuesday may have been a big day for America’s personification of change; however, the people of Colorado and Washington also voted in favour of a very different kind of change via their decisions to legalise recreational marijuana.

By a margin of 5.4%, a majority of Colorado voters chose to pass Amendment 64, which would allegedly make it legal for individuals to possess and sell marijuana for recreational use. The people of Washington followed suit by voting in favour of a similar amendment. That being said, the ratification of such legislature will most likely be short-lived.

Under the Federal Controlled Substances Act of 1970, marijuana is explicitly deemed to have a high potential for abuse and zero credible medical uses. Accordingly, the federal government strictly prohibits the possession, usage, purchase, sale, and cultivation of the drug.

Although the US Constitution ensures that America’s federal government is allowed limited legislative power over state governments, it should be duly noted that its laws are still supreme. Therefore, where the use of marijuana is concerned – bar locations as to where its medical use has been legalised – federal jurisdiction dictates that said behaviour is illegal in all states, based upon the concept of enumerated powers that’s outlined in the Assimilative Crimes Act. The US Supreme Court has upheld the Constitutionality of this legislation twice –in United States v. Oakland Cannabis Buyers’ Coop and Gonzales v. Raich – and on both instances ruled that the federal government has the supreme authority to criminalise the selling of marijuana under the Interstate Commerce Clause.

Long story short: states do not have the legislative power to legalise activity that is otherwise outlawed by a supreme federal government. So why did Colorado and Washington voters think they could get away with it? And will they?

For the time being, they just might. Earlier this year, President Obama reiterated that his administration will differ from previous regimes by cooperating with state and local laws concerning medical marijuana; however, Mr Obama has also since publicly stated that he is not necessarily in favour of legalising recreational use of the drug.

Should the President allow for Colorado’s Amendment 64 to go ahead as otherwise planned, marijuana will now be available to anyone over 21 years of age, and will be taxed and regulated just like alcohol and tobacco. Advocates justifiably assert that the move will keep many minorities out of jail and simultaneously boost tax revenue – yet the fact remains that it is not within a state’s power to tax an otherwise illegal substance.

Just one day after Barack Obama was nervously able to walk away from an especially belligerent question of his authority, Colorado and Washington are now calling that authority into question once more by assuming they are not obligated to fall into line with superior federal law. The President must now tread carefully – although his fan base within both states was no doubt composed of the very same groups whom so aggressively advocated for the legalisation of marijuana, red-faced conservatives will now argue that America’s power is being completely undermined via the inactivity of its leader to end this so-called rebellion.

On a side note, it should duly be taken into consideration that many of those very same right-wing critics who will now be calling for Barack Obama to flex his Presidential might spent the entirety of the Presidential campaign calling for a weaker federal government that does not stifle the affairs of state governments. Hypocrisy doesn’t quite cover it. That being said, the President must indeed offer wary Republicans a ‘grand gesture’ in order to sew his people back together – and the chances are that the killing of Colorado’s Amendment 64 will be that gesture.

At the end of the day, voters should take into consideration that ‘you can’t always get what you want.’ Although the President may be keen to thank his supporters by allowing for yet another progressive step in social reform, said reform undercuts the US federal government and its Constitution, full stop. A nationwide, Constitutional policy cannot be changed from the outside-in – and if advocates truly are serious about legitimately legalising marijuana, they must do so on Capitol Hill, and Captiol Hill alone.

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