FEDERALISM, CANNABIS, AND PUBLIC HEALTH: PROHIBITION IS WRONG, BUT RAICH IS STILL RIGHT.

• Author: Orenstein, Daniel G.

1. INTRODUCTION 540 II. OLD GROWTH: CANNABIS PROHIBITION AND FEDERAL POWER 542 A. The Prohibition Era 542 1. Ignored to Prohibited 543 2. Prohibited to (Sometimes) Permitted 545 b. Raich and the Commerce Clause 546 III. NEW GROWTH: CHANGES IN FEDERAL CANNABIS POLICY 549 A. State Legalization in Bloom 549 1. Inaction as Congressional Consent 551 2. Discretion as Executive Consent 553 3. State Action as State Action 555 B. Take a Memo: Ogden, Cole, Sessions, and Discretion 555 C Decriminalization Comes to the District 560 D. Budget Riders and How to Buck Them 562 IV. PLANTING SEEDS: THINKING BEYOND CANNABIS 564 V. CONCLUSION 567 I. INTRODUCTION

   Federal cannabis (1) prohibition is scientifically flawed and inequitably enforced. Despite these disastrous defects, the U.S. Supreme Court's landmark 2005 decision upholding the constitutionality of federal cannabis control in Gonzales v. Raich (2) remains fundamentally correct. In Raich, the Court confirmed that the tightly controlled and comprehensive regulatory system of the Controlled Substances Act ("CSA") supported federal authority to regulate even purely intrastate, non-commercial cannabis activities in broad exercise of Congress's Commerce Clause power. (3) Much has changed in the past sixteen years, including the tempering of federal cannabis enforcement and the ascendance of the state legalization movement. Justice Clarence Thomas recently took note of these changes, penning a statement accompanying the denial of certiorari in Standing Akimbo, LLC v. United States (4) that pointedly characterizes the present-day federal approach to cannabis as a "half-in, half-out regime" and a "contradictory and unstable state of affairs [that] strains basic principles of federalism and conceals traps for the unwary." (5)

   A short statement by a single Justice is rarely compelling cause to reexamine major U.S. Supreme Court precedent, and Justice Thomas's dissent in Raich itself makes his continuing objections unsurprising. Yet, his statement in Standing Akimbo deserves careful analysis. The statement was newsworthy, (6) and attorneys have already begun to cite it in seeking reevaluation of federal drug laws as related to clients' criminal convictions. (7) Standing Akimbo itself involved federal business tax deductions, (8) undoubtedly an issue of great importance to the burgeoning legal cannabis industry. (9) However, the true significance of Justice Thomas's statement is in questioning whether the changes in state and federal approaches have altered the legal foundations of Raich and, consequently, the constitutional legitimacy of significant portions of federal cannabis law. (10)

   Justice Thomas cites several key developments since Raich that he argues severely undermine its core rationale for expansive federal authority over intrastate cannabis activity." He emphasizes four such changes: 1) the proliferation of state cannabis legalization, 2) Department of Justice ("DOJ") memoranda formalizing a non-interventionist policy toward activities that comply with state cannabis laws, 3) Congress's allowance of cannabis decriminalization in Washington, D.C., and 4) congressional budget appropriations riders prohibiting DOJ from expending funds to interfere with state medical cannabis laws. (12) In a characteristically succinct summary, he concludes that the current federal approach "bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government's blanket prohibition in Raich,," (13)

   Justice Thomas is unmistakably correct that much has changed since Raich, and others have similarly noted that the extent of these changes raises the issue of whether Raich is due for reconsideration. (14) There are also strong public policy arguments that the federal government should finally terminate a prohibitionist framework that has been flawed from the start and persistently enforced with profound inequity. (15) However, just because the federal government should not retain such a law does not mean that the Constitution forbids it. An important aspect of Justice Thomas's statement in Standing Akimbo is the argument that the federal government's decision to pull back some aspects of enforcement destroys a constitutional prerequisite for regulating intrastate activity. (16)

   Despite the many changes since Raich, this Article argues that the decision remains fundamentally correct. The current federal approach has altered the on-the-ground realities of cannabis regulation, but the core legal framework of the CSA remains in place despite these long-overdue changes in enforcement strategy. The federal government's decision to decline maximal use of its Commerce Clause authority should not nullify that authority. While federal prohibition is unwise, and its end would be welcome, that end should come by Congress's hand, (17) not the Judiciary's.

   The Article proceeds in three parts. Part II provides a brief overview of key historical developments in U.S. cannabis law and policy and explores Raich's place in modern Commerce Clause jurisprudence. Part III addresses, in turn, each of the four major post-Raich developments cited by Justice Thomas in Standing Akimbo and explains why they are insufficient cause to rethink federal authority. Part IV uses a public health lens to illuminate risks beyond the drug control realm that flow from excessively limiting the federal government's ability to take calibrated approaches to complex national problems.

2. OLD GROWTH: CANNABIS PROHIBITION AND FEDERAL POWER

   1. THE PROHIBITION ERA

      The history of federal cannabis prohibition is non-linear, ebbing and flowing with changes in congressional attitudes, presidential administrations, and prevailing social trends. But for the better part of a century, the prevailing federal approach relied on strict prohibition while states periodically conducted limited experiments within their own legal frameworks.

      1. Ignored to Prohibited

         Cannabis has a long cultivation history, (18) including documented medical (19) and recreational (20) use over thousands of years. In the early United States, cannabis was primarily grown for use in rope, sails, clothing, and similar applications. (2)' By 1851, however, the Pharmacopoeia of the United States officially recognized the medical utility of cannabis. (22) Medicinal use was common in the United States by the turn of the twentieth century, but recreational use was not. (23) Throughout this time, federal law largely ignored cannabis (as it did most drugs) until the early twentieth century, (24) at which point initial regulation focused on disclosure of substances' presence and dosage in various patent medicines. (25)

         Soon thereafter, however, a combination of historical and social factors plunged the United States toward cannabis prohibition. Responding to racism against Mexican immigrants and African-Americans, a rise in immigration following the Mexican Revolution, and widespread unemployment during the Great Depression, opportunistic actors in law enforcement, politics, and journalism connected cannabis, crime, and race and used these issues to push for legal controls. (26) They succeeded, and, by 1931, a majority of states had prohibitions on cannabis. (27) The federal government followed suit with the Marihuana Tax Act of 1937, (28) indirectly but effectively criminalizing cannabis at the federal level and cementing "Reefer Madness" as policy. (29) Enforcement strategics and punishment structures varied over time, including a punitive peak in the 1950s following the enactment of the Boggs Act and related legislation providing for lengthy mandatory minimum sentences for simple possession. (30)

         The 1960s brought the counterculture movement, and with it, both a significant uptick in (predominantly white and middle class) youth cannabis use and advocacy for changes in drug policy. (31) In 1969, the U.S. Supreme Court invalidated the Marihuana Tax Act in a case involving counterculture figure and psychedelic drug advocate Dr. Timothy Leary, (32) whom President Richard Nixon reportedly once called "the most dangerous man in America." (33) Invalidation of the Marihuana Tax Act forced the federal government to consider a replacement, enabling President Nixon to take up the prohibitionist baton and initiate the infamous "War on Drugs." (34)

         In 1970 Congress enacted the CSA to provide national uniformity on drug policy and bring the country into line with the United Nations Single Convention on Narcotic Drugs. (35) Though less punitive than predecessor laws, the CSA significantly increased the role of the federal government in regulating several classes of drugs, (36) dividing them into five "schedules" based on factors related to medical utility, potential for abuse, and harm to public health. (37) Cannabis was initially placed on Schedule I, with additional research commissioned to inform its future placement. (38) The Shafer Commission conducted this research and, in 1972, issued a report generally recommending decriminalization of simple possession. (39) The Nixon Administration, however, ignored this recommendation and pressed on with strict prohibition as part of a racism-infected "law and order" focus. (40)

      2. Prohibited to (Sometimes) Permitted

         Beginning with cannabis prohibitions predating the Marihuana Tax Act, states have been the primary enforcers of cannabis control laws, and most have adopted parallel versions of the CSA based on the Uniform Controlled Substances Act. (41) However, several states altered their course on cannabis in the 1970s. By the end of the decade, eleven states had decriminalized simple possession under state law. (42) Decriminalization generally removed or reduced criminal penalties while retaining civil penalties, (43) but even this limited experiment halted amid the "Just Say No" era of the 1980s and early 1990s. (44) Federal drug enforcement also ramped up considerably...