Playing Hot Pot-ato: Does Biden's Presidency Signal the End of Federal Marijuana Prohibition?
| Publication year | 2022 |
Playing Hot Pot-ato: Does Biden's Presidency Signal the End of Federal Marijuana Prohibition?
Sara Snowden
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"Hot Potato is a very different game when the people playing are starving."1 In the context of federal marijuana legalization, various branches and agencies within the government have long engaged in a game of political hot potato—tossing responsibility for legalization off into the hands of someone (anyone) else. These evasive maneuvers are not victimless. As an overwhelming majority of states have taken actions to legalize or decriminalize marijuana, unsuspecting citizens have been caught in the crosshairs between conflicting state and federal laws.
Take for example David Doe,2 a resident of Colorado,3 who suffered many afflictions. Three years ago, he was diagnosed with an inoperable tumor which not only caused chronic pain but also epilepsy as well. To alleviate his symptoms, his oncologist prescribed medical marijuana. Faced with impending death, David packed his medical marijuana and drove to the neighboring state of Kansas4 to visit family. Shortly after crossing into Kansas, David was arrested and charged with violating federal drug laws. David protested that he had a valid prescription and a medical marijuana card, but these defenses were unavailing. Though some states, like Colorado, have legalized marijuana for medical and recreational use, it remains illegal under federal law and, therefore, David was subject to federal criminal prosecution. David was a starving
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victim of the federal government's hot potato approach to marijuana legalization.
Though David's story is fictional, the scenario is all too real. The United States currently operates in a cloud of uncertainty as it relates to conflicting federal and state marijuana drug laws. People living in states where marijuana has been legalized can easily find themselves guilty of a federal infraction because of the dissonance between the laws. This comment explores the origins of the federal marijuana prohibition; the evolution of marijuana laws and their enforcement; the role of the President and Attorney General; and potential solutions for concluding the federal prohibition. Specifically, this Comment proposes that the most realistic approach to federal legalization requires stair-stepped, modest legislation—a departure from the failed "full kitchen sink" bills of the past. The idea is that "slow and steady wins the race." Because federal legalization of marijuana requires an act of Congress, any proposed legislation must be crafted to appeal to both houses as well as the Biden Administration.
A. Controlled Substances Act Basics
Despite the fact that many states have decriminalized marijuana5 for medical or recreational use, marijuana remains an illegal substance under federal law.6 The Controlled Substances Act (CSA),7 enacted in 1970 in response to President Nixon's "War on Drugs,"8 placed the control of marijuana under federal jurisdiction and established the statutory framework through which the federal government regulates the production, possession, and distribution of controlled substances.9 Under the CSA, there are five schedules in which a substance may be
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classified.10 Schedule I is the most restrictive category, and Schedule V is the least.11 Classifications into one of the five schedules are based on: (1) actual or relative potential for abuse; (2) known scientific evidence of pharmacological effects; (3) current scientific knowledge of the substance; (4) history and current pattern of abuse; (5) scope, duration, and significance of abuse; (6) risk to public health; (7) psychic or physiological dependence liability; and (8) whether the substance is an immediate precursor of another controlled substance.12
Schedule I controlled substances have no accepted medical uses, lack safety for use under medical supervision, and have a high potential for abuse.13 In addition to marijuana, Schedule I also consists of drugs like heroin, lysergic acid diethylamide (LSD), and ecstasy.14 Schedule II controlled substances are those which have an accepted medical use, but also have a high potential for abuse and addiction.15 Examples of Schedule II substances include oxycodone, fentanyl, morphine, opium, codeine, hydrocodone, methamphetamine, and pentobarbital.16 Schedule III substances, like Tylenol with Codeine, have medical uses and a lesser potential for abuse.17 Schedule IV substances include drugs such as Xanax, Klonopin, Valium, and Ativan.18 These are drugs that have a low potential for abuse relative to substances in Schedule III.19 Finally, Schedule V substances are drugs with a low potential for abuse and contain limited quantities of certain narcotics such as Robitussin and Phenergan.20 Therefore, drugs that are less harmful are likely to be classified as Schedule V controlled substances while drugs that are more harmful are likely to be classified as Schedule I or II controlled substances.
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Federal and state authorities do not always agree on the medical utility and public health risks associated with marijuana. To illustrate, although thirty-six states have legalized the use of marijuana for medicinal purposes,21 the Food and Drug Administration (FDA)—the agency with the federal authority to approve drugs for medical use—has not.22 Consistent with the FDA's position, marijuana therefore remains classified as a Schedule I controlled substance under the CSA.23 Consequently, this legal dissonance has resulted in an uneasy truce between federal and state authorities, subject to change at the slightest political whim.
B. Constitutional Basis of Authority to Regulate Marijuana
Federal emphasis on drug enforcement has ebbed and flowed with changes in presidential administrations. In 1963, President Kennedy's Administration commissioned a report on curbing narcotic drug abuse which recommended increased national drug enforcement initiatives.24 Building on this foundation, in 1968 "President Johnson fundamentally reorganized the federal drug control agencies" by merging them together into the Bureau of Narcotics and Dangerous Drugs.25 Consequently, streamlining these agencies transferred federal oversight of drug enforcement from the Department of the Treasury to the Department of Justice (DOJ). Therefore, the basis of Congress's constitutional authority shifted from the federal government's taxation powers26 to its power to regulate interstate commerce.27
The Supreme Court has held the Commerce Clause28 not only grants the federal government the authority to regulate interstate but also intrastate activities affecting commerce.29 "[E]ven if . . . [the] activity
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[is] local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce . . . irrespective of whether such effect is" direct or indirect.30 Hence, where criminal activity, even if purely local, has a substantial impact on interstate commerce, Congress may enact legislation against it.31
In Gonzalez v. Raich,32 the Supreme Court upheld the federal government's authority to act under the Commerce Clause to regulate locally cultivated marijuana for medicinal use by patients in California, even though the practice was permissible under state law.33 The Court paralleled Raich with precedent, Wickard v. Filburn,34 a case involving wheat grown for home consumption, and held Congress had the power to regulate local, noncommercial drug activity within the states because the manufacture and possession of marijuana posed a threat to a national market.35 Furthermore, "the de minimis character of individual instances . . . is of no consequence."36 The primary purpose of the CSA was to control the supply and demand of controlled substances.37 Exempting marijuana for home-consumption from federal control would have a substantial influence on national price and market conditions.38 Given concerns about the dispersion of locally grown and consumed marijuana into illicit channels, the Court had "no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA."39
C. Nixon's War on Drugs: The Emergence of the CSA and DEA
Shortly after taking office in 1969, President Richard Nixon declared a national war on drugs, citing drug abuse as "America's public enemy
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number one."40 Constructive rather than literal,41 this war sought to attack drug abuse through enhanced federal control and law enforcement initiatives.42 As part of the war on drugs, Nixon pushed for the passage of comprehensive federal drug laws, increased federal funding for drug control agencies, and proposed strict measures such as mandatory prison sentencing for drug crimes.43
The result of Nixon's initiatives was the birth of the CSA. "[E]nacted as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 . . . [the CSA] placed the control of select plants," like marijuana, "under federal jurisdiction."44 Subsequently, Nixon also authorized the creation of the Drug Enforcement Administration (DEA)—a federal agency within the Department of Justice dedicated to enforcing the CSA.45 Specifically, the single-mission of the DEA was
[T]o enforce the controlled substances laws and regulations of the United States and bring to the criminal and civil justice system . . . those organizations and principal members of organizations, involved in the growing, manufacture, or distribution of controlled substances appearing in or destined for illicit traffic in the United States . . . .46
Thus, the DEA was charged with coordinating all federal drug enforcement...
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