Book Review: Marijuana Federalism: Uncle Sam and Mary Jane

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is titled “Book Review: Marijuana Federalism: Uncle Sam and Mary Jane.” My name is Greg Walsh and I am Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Professor Jonathan H. Adler, the Johan Verheij Memorial Professor of Law and Director at the Coleman P. Burke Center for Environmental Law at Case Western Reserve University. And Mr. Paul J. Larkin, Jr. A Senior Legal Research Fellow at the Meese Center for Legal and Judicial Studies at the Institute for Constitutional Government at the Heritage Foundation.

 

      After our speakers give their opening remarks, we will go to audience Q&A. Thank you all for sharing with us today. Professor Adler, the floor is yours.

 

Prof. Jonathan H. Adler:  Great, well thank you. It's a pleasure to be here. I appreciate the FedSoc agreeing to do a forum on this book and appreciate Paul for his time in looking at the book and providing commentary. What I want to do relative briefly is say a little bit about why we did the book. It is an edited volume. It has a range of contributors, quite a few of whom will be familiar to FedSoc audience. People like Will Baude and Ernie Young as well as some other folks.

 

      I want to explain why we did the book, why we think it's important to view marijuana through the lens of federalism and say a little bit why how I certainly -- my view is that thinking about marijuana as a question to be handled through the system of federalism actually solves many of the policy conundrums that we are currently dealing with.

 

      So just in terms of some background, 25 years ago, marijuana was illegal everywhere in the United States, not only under federal law, but under state law. Beginning in the 1990s, some state began to allow the cultivation, possession, and use of cannabis for medicinal purposes and as I think folks on this call will know, that led to some litigation including ultimately the case of Gonzales v. Raich where the Supreme Court upheld the constitutionality of the federal prohibition on the possession, use, distribution, and sale of marijuana, and includes in that the conclusion that the federal government could prohibit the possession of marijuana, even for medicinal purposes and even absent any sort of commercial nexus. So states began allowing marijuana use, the federal prohibition remained.

 

      Beginning in 2012, states not only were allowing marijuana for medicinal purposes, but began to allow marijuana for recreational purposes. So in 2012, Colorado and Washington State both passed referenda allowing marijuana for recreational use and over the following years, numerous other states followed. Today, 11 states and the District of Columbia allow marijuana for recreational use. Another, I believe it is, 16 states have decriminalized low level possession of marijuana. Most recently, Virginia, this past month. Close to two dozen states allow medicinal use broadly of marijuana and there are many more states that allow more limited medicinal use of certain products that have low THC content or that are marijuana derivatives.

 

      Over the last two decades, there are only three states that have done next to nothing in terms of reforming or changing their marijuana laws in some way. But in the majority of states, marijuana use and possession is allowed for at least some purposes, at least medicinal, if not for recreational, as well.

 

      Now, despite all this, marijuana remains illegal under federal law. As a practical matter, this does not mean that the average person who is a user of marijuana for personal use -- for medicinal or recreational purposes has much to worry about in terms of prosecution and that's largely because the federal government doesn't have the law enforcement resources to enforce that prohibition at the local level. It doesn't have the boots on the ground. It doesn't have the means of doing that.

 

      Further, the Justice Department has made clear that traditional federal law enforcement priorities tend to mean focusing on things like interstate trafficking, distribution to children, and the like, and not small-scale use and possession. There have been changes, in terms of how official that policy is. There were some memos during the Obama administration that were rescinded by the Trump administration, but Bill Barr has noted that he does not think it makes a lot of sense for the federal government to try and upset the set of expectations that exist in jurisdictions where marijuana use is allowed. And that he doesn't think it's really practical for the federal government to focus its limited law enforcement resources on individual possession.

 

      All that said, the fact that marijuana is still illegal under federal law does create a sort of shadow or overhang that affects a wide range of other sorts of activities. It creates problems for providing financial services to marijuana businesses, or marijuana related businesses that are legal under state law. And we have a chapter in the book by Julie Hill of Alabama that goes into that. Basically, and I'm over-simplifying a little bit, banks can't certify that they are not providing financial services to illegal activity if they are, for example, processing credit card transactions to businesses that are selling marijuana. So that creates a problem.

 

      It creates a problem for lawyers because traditionally understood, the rules of professional responsibility mean we are not allowed to counsel our clients on the prospective violation of law. The client comes to you saying, I violated the law. I think I might be in trouble. You can help that client. But you can't tell the client, okay here's how the things you can do that will facilitate ongoing law breaking. So if you want to create an LLC for a cannabis dispensary, under traditional understandings of professional responsibility, that's a problem. And states have struggled in how to deal with that. And we have a chapter by my colleague, Andrea Robertson that deals with that. Under federal tax law, a business that's legal under state law can't deduct the same sorts of business expenses for purposes of federal taxes that other businesses can because of marijuana's status.

 

      There are potential implications under RICO. The violation of various federal drug laws can be RICO-predicated offenses and can create at least the potential of civil RICO liability. It creates implications for people that want to purchase guns. If you have a medical marijuana card, that's a reason not to be allowed to purchase a gun and will create a flag on a background check.

 

      So the fact of federal prohibition, even if it is not enforced against individuals, as opposed to those engaged in trafficking and the like, does create disruptions, does create what I would argue are some anomalies that make marijuana activities different than other activities that are allowed under state law and I think creates some problems. I mean, among other things, if we're worried about things like trafficking, if we're worried about things like organized crime, saying to marijuana dispensaries that they have to be cash only business because they can't get financial services and reducing the likelihood, at least in some jurisdictions that ethical lawyers will want to help them is not a way of encouraging that these businesses be conducted in a more responsible manner. So I think there's some problems there that need to be addressed.

 

      Stepping back, in terms of why I think we want to allow states to experiment as they are, I think that the reasons why a compound republic in which states are responsible for the bread and butter of criminal law and exercise their police power to decide what sorts of things should or should not be allowed consistent with public safety and welfare, I think allowing states to make choices about marijuana fits into that, in part because, across our country people have very different views about what sorts of things should be legal in a large heterogeneous republic in which different groups of people have different priorities and preferences with regards to how the law should treat marijuana.

 

      Setting a single national policy increases the likelihood that people live under laws that they don’t support and think are valid. While I might personally be more inclined towards marijuana legalization than Paul is, and I don't know but I might be, I still think that's a question that should be dealt with at the state level because not everybody feels that way. As Alexis de Tocqueville pointed out, “In a large centralized nation, the lawgiver is bound to give laws a uniform character which does not fit the diversity of places and mores.”

 

      And this was a point that the State of Alabama actually made in the amicus brief it filed in the Gonzales v. Raich case where Alabama pointed out that in Alabama, at the time, had the nations most severe criminal penalties for possession of distribution of marijuana. But Alabama said, look if California wants to have a different policy, that's fine. Just make sure we can do ours. And I think that's a good practical view.

 

      Secondly, the reality is is that the federal government can't effectively impose marijuana prohibition. It can't commandeer the states. It can't make the states enforce federal law. And we have some chapters in the book that go into that go into that and why, under cases like New York and Printz and Murphy that is the case. But as I already noted as a practical matter, the federal government is not going to devote the resources on the ground.

 

      A third point that I think is just as important and I think Paul will agree with this is that, we spend too much time talking about marijuana as legalize/don't legalize. Differences on the margin in what our laws and policies are, in terms of how a substance like marijuana are treated matter. And the effects of those differences on the margin are not always going to be self-evident before the fact.

 

      We're learning a lot about what happens when you legalize or decriminalize marijuana. And we will continue to learn more in the years ahead. And the contours and specifics of a given legal regime matter. It turns out, and there's a chapter in the book that goes over what empirical evidence we have thus far, and it is -- I empathize thus far, it turns out that the people that thought marijuana legalization would be a disaster seem to have overstated the case and the people that thought marijuana would create nirvana and it would eliminate the opioid crisis and the like were also overstating the case. But it may turn out that, over time, that that changes. And we will be able to figure out that what Colorado did versus what Michigan did versus what Washington did, that some of these differences matter in terms of the safety implications, the public health implications and so on and allowing federalists into service at discover mechanism in process, I think, is really important.

 

      So lastly, just in terms of what we should do, because I think I'm at the time that I said I was going to speak for, I think we have a model for how we should think about marijuana and that is we should treat it like alcohol after prohibition, where we should say, this is precisely the sort of question that states generally get to decide and should be allowed to decide. And that doesn't mean the federal government does nothing. It means the federal government plays its traditional proper role of regulating truly interstate commerce in a way that protects states against spillovers from other states.

 

      So when we ended alcohol prohibition, it remained a federal crime to distribute, or possess with intent to distribute, alcohol in states in violation of applicable state law. So if someone in North Carolina was preparing to ship alcohol into South Carolina in ways that would violate South Carolina law, that's not only a South Carolina legal violation, that's a federal legal violation. And if you think like I do, the federal government has a comparative advantage in dealing with things like trafficking and dealing with those sorts of interstate effects, I think clarifying that that is what's illegal under federal law, would go a long way towards dealing with some of the problems I identified, preserve our federalist structure, and allow us to adopt marijuana policies that, in the long run, will be consistent with what people want and with maximizing public welfare. I will stop there, and I look forward to Paul's remarks. Thank you.

 

Paul J. Larkin, Jr.:  Well, this is Paul Larkin.  I work at the Heritage Foundation, but I'm speaking today on my own behalf, not on behalf of Heritage. I want to thank The Federalist Society for giving me the opportunity to participate. I want to thank Professor Adler for editing such a terrific book. It is no doubt an extremely valuable contribution to the literature discussing each of the two topics conjoined in its title, marijuana and federalism. Why do I say that?

 

      Well, at one time, state and federal law were uniform and clear. Both treated marijuana as contraband. As Professor Adler pointed out, however, the current legal status of marijuana or cannabis is anything but settled and clear.

 

      The federal government still outlaws marijuana. But since 1996, more than 30 states have decided to permit and regulate the sale and use of marijuana for medical and recreational purposes. But where does that leave us? Three decades ago, the status of marijuana was clear to everyone, but to some people it was misguided. Today, the status of cannabis is anything but clear to anyone, and to some people, it is still misguided, but for different reasons and to different people.

 

      Professor Adler's book tries to make sense of this conundrum that we now have. He doesn't take the quixotic task of trying to persuade the Supreme Court to reconsider its decisions expanding Congress's Commerce Clause power. What it does, instead, is try to persuade Congress to cowboy up and finally address this problem, because we have an ongoing antagonistic state of affairs between the federal and state governments. And the book, therefore, not only is excellent in terms of its content, but also in its approach.

 

      Marijuana federalism focuses on the implications for each topic of the growth of the two very conflicting regimes. It has very interesting, very valuable essays by a host of different people in this regard, each of which tries to address this issue from the perspective of federalism. And each of which argues that because federalism is built into our Constitution's DNA, when we reconsider this issue, as Congress must, we ought to use federalism as the go-by.

 

      With 50 different states, we might come up with 50 different approaches, and that's true. And each of those different approaches will help educate us as to what is the best overall approach. In that regard, I tend to differ, and here's why. Gaul may have been divided into three parts. But marijuana needs only two. Medical use and recreational use. And unfortunately, we have conflated those two uses in most of the debate concerning how to reconsider what we have in the current state of affairs as to the regulation of marijuana. The problem, ironically, originates not in 1996, when California adopted the first medical marijuana program, and not in 1970, when Congress adopted the Controlled Substances Act of that year.

 

      The problem began in 1938. The year before, in '37, Congress had effectively outlawed marijuana nationwide in the Marijuana Tax Act of 1937. The following year, in '38, Congress passed the Federal Food, Drug, and Cosmetic Act. The mistake in '38 was in not then giving the Commissioner of Food and Drugs the authority to decide whether marijuana, which clearly has the same effects as other drugs, should decide whether that was safe, and then later, effective. Congress repeated the same mistake in 1970, when it didn't leave the decision as to the medical use of marijuana to the Commissioner of Food and Drugs. And as a result, when California finally decided to make this a medical justification for the use of marijuana, Congress didn't step in and say no, we have decided this and we have kept to this program for 80 plus years.

 

      Over that period, since 1938, we have divided medical treatment between the federal and state governments as follows. The states license physicians and use administrative and tort law to govern their practice. But the federal government is responsible for deciding what is a drug and what drugs are safe and effective. Medical marijuana programs run headlong into that consensus that we have had for 80-plus years, and that no one seriously argues we should reject now.

 

      What's happened, however, is that we have used medical marijuana programs as a sham. They were designed, intentionally, by their proponents to allow people to get used to the idea that marijuana should be used and to use as a justification getting it from medical treatments. But if you look at the original California law, it was really a recreational use statute. Yes, it was sold to the public on the ground that marijuana could be used to treat the cachexia from AIDS or cancer or some of the spasticity from various neuromuscular diseases. But the last phrase in the provision said that it could be used for anything for which a physician finds it helpful, which means if you're having a blue day.

 

      As a practical matter, all it takes to get a medical marijuana card in California is $40 and 10 minutes. This has been a sham and it continues to operate today, and it has been such in every other program.

 

      My biggest criticism of marijuana federalism, therefore, is that none of the contributors discusses the fundamental issue of how we decide precisely what judgments should be left to the states rather than the federal government. For 80 years, we have left all judgments dealing with drugs to the federal government, in the hands of the Commissioner of Food and Drugs.

 

      The Framers made the judgment that we should leave to the federal government decisions dealing with interstate issues or international issues. We continue that today, but today, we also make certain judgments that the federal government is more qualified to handle certain matters than the states. We decided to send a man to the moon and bring him home safely. We left that action in the hands of the federal government, not the states.

 

      Today, we make these types of judgments because science is far more advanced than it was in the 18th century. Because physicians, biochemists, and epidemiologists know more than the average person about drugs, medical treatment, and the like. Because we are comfortable allowing experts to make decisions that implicate their expertise. And because only the federal government has the ability to harness the assets and people to decide what drugs are safe, nationwide.

 

      We should do the same thing with respect to marijuana. Leave to the federal government the authority to decide whether it is a drug and safe and effective. If we want to legalize recreational use marijuana, address that issue head on and argue the pros and cons. And argue all of the pros and cons. Remember, we're talking about a drug that isn't going to save lives, but a drug that can take them. If you legalize recreational use marijuana, you're going to have an increase in the number of people who toke up, go one toke over the line, and then get behind the wheel of a motor vehicle. We've already seen that happen in places like Colorado. The number of people who have been involved in fatal crashes has increased dramatically if they've been using marijuana. Now, I can't say that marijuana caused it, of course. But no place else do we allow this sort of correlation to go unexamined. And yet, we're doing it now.

 

      So my bottom line is this. Marijuana federalism appears at a very opportune point. The new state marijuana regulatory programs from Maine to Hawaii are not going to disappear anytime soon. The book encourages Congress to address the chaotic state of the law today, and Congress needs to. But when Congress does, I think it needs to look at this program by dividing the issue into two. Medical use versus recreational use.

 

      The medical use programs have been lying to people ever since 1996. If you want to authorize it for recreational use, then make that argument, but be willing to address the consequences of authorizing its recreational use. And if that's what the states want to do, and if that's what Congress lets them do, and if that's what the people across the nation want to do, then at least be honest about what they're doing and not try to euchre us into thinking that they're doing this in order to cure disease. They're not. With that, let me turn it back to Professor Adler.

 

Prof. Jonathan H. Adler:  Alrighty. Thanks. I appreciate those comments and I think there’s a lot there. I want to just make a couple -- or a few comments and perhaps try and highlight some places where we disagree because I think that might be more interesting for folks on the call.

 

      I certainly appreciate the concern about whether or not we treat marijuana as a drug. But I think we want to step back and remember that if we're talking about a natural substance, generally the way the federal drug regime treats substances, ginseng, ginkgo, balboa or whatever -- some other herb or something that might be used and recommended by a doctor, is that whether or not its regulated by the FDA, is a function of how its marketed. It’s a function of how it is presented and described by the producer. Not a function of, does the substance exist.

 

      So if I want to make specific medical claims about a substance, then I need FDA approval. But if I want to package an herb or a derivative of some plant that I grow and sell it in the hope that there are people that, on their own, will have determined that it might help them, medically, or doctors will recommend it, I don't have to go through the FDA process. And so there's no reason -- as far as I'm concerned, there doesn't seem to be any reason why marijuana, in a lot of context, would be able to be treated that way, and why it shouldn't be treated that way, and why federal law should not allow it to be treated that way.

 

      That is to say, if I'm a drug company, or somebody else, and I want to develop a marijuana derived product and I want to claim that it will treat a particular disease, well then I'm subject to that regulatory regime. If I don't, then it's not clear why it should have to be subject to that regime.

 

      Secondly, I think it's important to recognize that, until very recently, medical research on marijuana in the United States was basically precluded. So I'm open to the argument and to the idea that the effects of -- medical benefits of marijuana are oversold, that many of the things that people claim that marijuana does, it might not in fact do. That may be the case. The reality is, is until relatively recently, you could not use marijuana in clinically controlled studies in the United States. So we're way behind the curve in understanding what marijuana's true medical uses are or could be.

 

      My understanding is, is that for things like dealing with the consequences of chemotherapy and maintaining an appetite and the like, the evidence appears to be fairly strong. For some of the other claims about marijuana, I think the jury is still out. But again, I don't think we need to subject marijuana to the drug approval process or something. We merely need to not have the federal government be in the way of people wanting to conduct that research. And I think they should be allowed to.

 

      In terms of whether or not California is -- when it was solely a medical marijuana state, was doing things properly or improperly, I think that, too, is something that I think is worth debating and discussing. I think, as with any other significant change in criminal law, or what sorts of activities are allowed or not allowed, and moving an industry from a black market illegal industry to a regulated industry for certain purposes, or all purposes, as we've seen happening, I think that the devil is often in the details. And that whether or not a purely medical regime for a substance that does not have FDA approved uses is stable or produces the results that we like or don't like, well I think that's a question that is an empirical one. And I think that allowing states to try different things will allow us to figure out how easy or difficult should marijuana be to get? Or I guess more precisely, what are the practical consequences of making marijuana more easy or more difficult to get? What are the consequences for youth access, which I think is a very serious concern? And we'll learn things.

 

      One example, last year, before coronavirus, one of the things the CDC was very concerned about was vaping. And one of the things they were particularly concerned about was something they called EVALI, I'm going to forget what it's the acronym for, but it was a set of lung impairments that appeared to be associated with certain types of vaping. And what eventually became clear, and unfortunately it took the CDC a while to acknowledge this, is that virtually all of these cases, if not all, were the result of people using bootleg THC vaping fluids in open canister systems. So not Jewels or things that you buy where they're a self-contained electronic cigarette. But systems where someone buys a vaping pen that they, then, decide what sort of fluid to put in it. And of the cases were almost all concentrated in states in which marijuana is illegal.

 

      Now, does that mean marijuana should be legal? Not necessarily, but we learned that one effect of different legal regimes is that the demand for marijuana is filled in ways that appear to be more dangerous and produce a significant number of severe lung ailments, and in some cases, death. And that's something that apparently wasn't happening in states that were allowing more controlled access. And so we would want to balance that against, if you allow adults marijuana, does that mean that more teens are accessing marijuana? And does that effect things like impaired driving? And I think those are empirical questions. And I think we want a federalist system where we can allow those things to be sorted out. Paul, back to you if you want to add some more comments.

 

      Paul J. Larkin, Jr.:  Yeah, let me just add one. I think the argument that marijuana is a natural substance and therefore, isn't something we should be concerned about regulating, well botulism is a natural substance, too. And it's deadly. The mere fact that something is natural doesn't mean it's safe.

 

      We have decided that we are going to leave all matters dealing with drugs to the Food and Drug Commission -- excuse me, the Food and Drug Agency. And THC is hardly one of the drugs we would want to take out of that rule. THC is both addictive and impairing. What other addictive and impairing drugs do we decide, well because they give us a euphoric feeling, we're not going to regulate by federal law? There are none. So the argument that it's -- that marijuana is a natural substance and therefore doesn't have to be regulated by federal law just doesn't hold water because we don't treat anything else that way. Besides, there is no FDA approved drug that is smoked. Why? There is no uniformity in the number of inhalations, the depth of inhalation, or the length of inhalation.

 

      Aside from that, you're going to have all sorts of toxins that you wind up with in home-grown marijuana. Now we have, and we know, that the cannabis plant has cannabinoids. The biologically active ingredients that can have valuable effects. And I agree completely with Professor Adler that we ought to do more research. And if it's difficult to do so under the current regime that is the statute or regs, then we need to change them. Because there's no good argument why we shouldn't be researching the potential therapeutic uses of cannabis to deal with various types of ailments.

 

      But the way modern medicine is practiced is, we don't allow people to grow something in their backyard and then use it. We don't allow people to grow opium in their backyard simply because we know that morphine is one of the premier pain killers in this world. No, we have decided for 80 plus years now, that we are going to trust the federal government to make these decisions and the Food and Drug Agency, in particular, to make these decisions. And there's no good argument why, all the sudden now, we should exempt cannabis from this.

 

      Now maybe all the arguments that the Professor is making as to the value of federalism come into play in connection with the recreational use of marijuana. But if we're going to go that route, then we at least have to be honest about the divide between medical and recreational use. And why is that important? In part, because for now 24 years, people have been lying about the value of marijuana as a drug. And if that has been the way it's been sold, then people, I think, are entitled to look critically at the arguments in favor of its use recreationally. After all, some who lies to you about point A is probably not going to be completely open and honest about every other point.

 

      Now, I'm not remotely -- I'm not remotely saying that's what the book is doing. I'm talking about the people who sold us in California, and elsewhere the miracle marijuana programs. The book doesn't get my criticism. Professor Adler doesn't get my criticism, not at all. But I'm saying, if we're going to look at this matter, we ought to recognize that we've been sold a bill of goods for a long time. The fact that it's a so-called natural substance is not a good argument for taking it out of the regulatory regime we have adopted for 80 plus years.

 

Greg Walsh:  Perfect. Let's go to audience questions.  We'll now go to the first question. Hi caller from area code 415, you're on the line.

 

Bob Savic (sp):  Hi. This is Bob Savic. I have a question for Jonathan and a question for Paul, if I may. Jonathan, you had mentioned observed how the federal government doesn't have the police power to enforce drug laws, and of course, that's true now. It was true during prohibition. Same issue. However, I think the other side of the coin is, they do have tools to commandeer, if you will, local police power, equitable sharing. And my question is, is that still around? Or also, through grants that have conditions, grants from the feds to the states, that say you get this money if you do certain things that we support. So the fed does have powers to indirectly enforce federal law, even though they're quite weak.

 

      And my question -- my comment to Paul is, Paul, a lot of your support for your position is, you start with, as a given, we had decided a while ago to create the FDA with the powers that they have. And you stopped with the premise “therefore, that is the law of the land.” The same could be said about the constitutional amendment which created prohibition. After that amendment was passed, that became the law of the land. But of course, in hindsight, that was a terrible law. So I don't really buy into the, we have decided concept in support of the FDA. We haven't decided. It is the law of the land, but it's far from decided.  Thank you.

 

Prof. Jonathan H. Adler:  Alrighty, I appreciate the question. So let me say a couple things, and I wanted to make one quick comment on Paul's last comment, as well. On the latter first, I actually do think there are natural substances that are intoxicating that do have potential negative effects that are lawful for sale in the United States and provide, if you don't make a drug claim, you don't actually need FDA approval. Kava is an example of that. It's an intoxicant. In high doses, it can cause liver damage. Some people believe it has medicinal purposes. I have no idea if that's correct or not. Valerian root, another example. Some people believe it is as effective as various prescription sleep aids. There are other nutritional supplements that, their advocates at least claim can produce effects similar to certain mood stabilizers, and so long as they don't make what the FDA considers to be drug claims, they don't have to go through that process. It doesn't seem to me that marijuana should be treated any differently than that.

 

      In terms of the question about what federal government can do. I'll make two quick points. One, just in terms of the magnitude. It's worth understanding that the first two states to legalize marijuana officially for recreational use, because I take Paul's point that states that initially legalized for medicinal use did not police that boundary very aggressively. But Colorado and Washington State, together, have four times as many law enforcement officers as the Drug Enforcement Administration has globally. Because the U.S. Drug Enforcement Administration not only does some stuff domestically, but does aid in some international drug trafficking efforts. So those two states, by themselves, four times as many law enforcement officers as the DEA does. And obviously, Colorado and Washington State are concerned with a wide range of law enforcement that does not relate to drugs. So when we talk about the federal government not having the ability, I think it's important to understand just how vast the magnitude difference is in terms of state and local capabilities versus federal.

 

      In terms of the federal government's tools, it is true that under current doctrine, the federal government can place conditions on the receipt of federal spending and there is certainly litigation related to that going on right now, as it relates to immigration enforcement. I think it's important to recognize that under current law, what some of the limitations are that would make it hard to use that.

 

      First is under decisions like South Dakota v. Dole and NFIB v. Sebelius, it's not clear that Congress can attach conditions to preexisting sources of funding, or at least there are questions about its ability to do that. That is to say, sources of funding that Congress has been giving states for a long period of time, insofar as states rely upon that funding, it's not clear that Congress can use that reliance as a basis for imposing new conditions.

 

      Secondly, the only money that Congress can really attach conditions to under these cases is money that actually relates to Congress's concern. So Congress could attach conditions to money related to law enforcement, perhaps related to a drug treatment programs and the like but would have to be somewhat limited in terms of what sources of money it wants to attach conditions to and what money it doesn't.

 

      Third point here is to note, I keep saying Congress and I keep saying that for a reason. Because as I think these cases make clear, the conditions have to come from Congress. They're not something that agencies can simply try and retrofit to preexisting sources of funding. So those are the things that are limitations on what Congress could do there. I would note Congress has actually placed limits on funding. But not on funding to states.

 

      Congress has been passing -- repeatedly been passing appropriations riders that actually prevent the federal government from enforcing federal drug laws in a way that gets in the way of, or interferes with, the operation of state licensed medical marijuana dispensaries. So insofar as Congress has expressed a desire one way or another, they've said, don't use money to get in the way here. I think that's a -- to me, that's like using duct tape to repair your car fender.

 

      If Congress doesn't want the federal government to get in the way of what some states are doing, I don't think it should be using the appropriations power to do that. I think it should actually be modifying federal law. The practice of Congress saying, federal law is X, but we're not going to give you money to do X, which Congress unfortunately does in a lot of context, I think is corrosive in the rule of law. I think it is irresponsible if a majority of folks in the House believe that states should be allowed to experiment, they should actually do the hard work of changing the underlying statutes. Paul, over to you.

 

Paul J. Larkin, Jr.:  Thank you Jonathan. Let me just say, THC clearly would qualify as a drug under the Food, Drug, and Cosmetic Act. And the question therefore is, should we create an exception for THC because of the euphoric effect it has. But the problem is, that puts the burden on the people who want the exception. And we don't create exceptions for a variety of other substances that also create the same sort of euphoric effect. We don't create one for heroine, methamphetamine, cocaine, or a bunch of other things, and we don't create exceptions for other drugs that have potentially hazardous effects.

 

      We don't permit companies to distribute Laetril, Vioxx, or DES that the FDA has banned. And the argument is, therefore, why is marijuana or cannabis treated differently? I don't think that a persuasive case has been made that we should treat this drug differently simply because it has an effect of euphoria that can help people deal with diseases. Well, so does Budweiser and so does Wild Turkey. If it weren't for the fact that there are statutory exemptions for alcohol, those would have to be treated as drugs. But we've decided that we're going to treat alcohol, in all its various forms, as being subject to different sets of laws. But we don't do so by saying that we're going to let the states decide these are different medical treatments.

 

      No one thinks of Budweiser or bourbon as a medica treatment. We should at least be honest about it. Because if we're going to engage in this debate, and not be honest about what we're doing, then we're not only disserving the public, we're likely going to mislead some people. And that's harmful and that's why I think we need to be honest about what we're doing.

 

Greg Walsh:  Let's now go to the next caller. Area code 434, you're on the line.

 

Barbara Haskins (sp):  Hi. My name's Barbara Haskins. Thank you very much for a very thoughtful and nuanced conversation. And forgive me if my question is so much of a tangent that you don't want to take it. But I'm thinking about all the money that is accumulating in Colorado and Washington that can't be put in a bank. What is going on with all that money? Do people use wheelbarrows to pay their taxes? I mean, what's happening with the money? Isn't anybody concerned about that?

 

Prof. Jonathan H. Adler:  So I think that's a good question. And although I edited the book, Julie Anderson-Hill, University of Alabama, did the chapter on banking and financial services. And her chapter is based on a longer law review article that she published in the Case Western Reserve Law Review. So in some respects, I want to defer to her.

 

      It is a problem and it is a concern. If one believes that the combination of an intoxicating substance and organized crime is a particularly noxious combination and that we think that those that market and sell a product that is potentially addictive or that is potentially intoxicating need to be monitored in a way to ensure that they're operating in a responsible way, then laws that have the effect of pushing that industry to the legal margins into almost a grey market, worry me a lot. And there has been concern that making marijuana businesses to be de facto cash-only businesses increases their vulnerability to crime, it makes them more enticing targets for violent crime, does perhaps push them towards trying to find other enterprises that may provide certain sorts of services for them if they have a harder time going through banks. And I think that's a problem because it creates all the wrong incentives.

 

      Some businesses have found some ways to try and get around this to varying degrees. There is some speculation about the extent to which various cryptocurrencies might be used as an alternative, but I think it is a concern. And if the federal government is worried about Colorado being a source of marijuana that is trafficked to Nebraska, I would actually argue that is a reason why you want to allow banks to service the marijuana industry in Colorado the way they service other businesses. Because that will make it easier for the federal government to ensure that those businesses aren't engaged in the trafficking or facilitating the trafficking of marijuana to jurisdictions where it's not allowed.

 

      I think that there's some serious concerns here and I think that even those that are skeptical of whether marijuana legalization is a good idea, should be uncomfortable with what we've done with regard to banking services for these businesses.

 

Paul J. Larkin, Jr.:  Let me make just two quick supplemental points. One is, I think you've mentioned a legitimate argument that can be used to support the legalization of recreational marijuana use. I don't think it deals at all with the medical use. But it is a legitimate argument in favor of recreational use legalization.

 

      However, I don't think we should be doing this piecemeal. In other words, deal with this little problem here, this little problem there. Congress probably wants to do that because they can take nibbles each time at this problem, so that eventually, there's nothing left, so that they can say, oh well, we've now passed so many different laws legalizing all the consequences of recreational use, we might as well just go ahead and legalize recreational use.

 

      I think we just need to address that issue. If Congress wants to legalize recreational use, the banking problem goes away. And so do a lot of the other problems that come from the antagonism between federal and state laws. But address that problem head on. Don't be dishonest and try to deal with this little flaw or that little flaw. Deal with the ultimate issue. And if you want to go ahead and solve the ultimate issue, then go ahead and solve it rather than just taking this piecemeal approach.

 

Greg Walsh:  Let's now go to the next caller.

 

Ilya Somin:  Hi. This is Ilya Somin from George Mason University. Jonathan's co-blogger on the The Volokh Conspiracy. I want to thank Jonathan for his thoughtful presentation and book and Paul for his comments. I do have a question about sort of the broader implications of Jonathan's argument. It seems to me that most, if not all, of the arguments you make for leaving marijuana issues to states also applies for leaving issues about the legal status for other drugs currently banned by the federal government also to the states. As you say, there could be diversity of preference if it crossed states. There could be different conditions. Also, banning recreational drugs that many people want creates a black market and strengthens organized crime and so forth, as you have said.

 

      And I would add, both marijuana prohibition and virtually every other type of federal prohibition rests on the dubious logic of Gonzales v. Raich which, if you take it seriously, would allow the federal government to ban the possession of pretty much anything, even if it wasn't sold in interstate commerce. Or, indeed, in the case of Raich itself, it wasn’t even sold in commerce within a state, so that seems like a gross overreach of federal power that anybody who cares about federalism or any original meaning of the Constitution should be against. So I was wondering, are you willing to some extent, to extend your argument to these other cases, and if so, how far would you go? Thank you.

 

Prof. Jonathan H. Adler:  I thank Ilya for the question. At least a couple things first, I think Gonzales v. Raich was wrongly decided. I have published some articles on that and think it was a mistake. I do think that there was a difficult legal question in Gonzales v. Raich about how you handle the fact that you have a broad regulatory scheme that, in the main, is focused on regulating interstate commerce. But that on its own terms, has applications to activities that are neither interstate nor commerce. And there, unfortunately, is not a lot of case law where the Supreme Court has actually thought serious about the extent to which Commerce Cause limits require carving out unconstitutional applications of the commerce power if they are part of a larger scheme.

 

      We have a chapter in the book by Will Baude of the University of Chicago who does argue that the fact of states regulating the industry under state law actually should provide a basis for insulating activities that are not otherwise part of interstate commerce from federal regulation and it's a provocative chapter.

 

      For the constitutional matter, I think the Congress's power to regulate commerce among the states is the power to regulate commerce among the states. And commerce is not all activity. It's a particular type of economic activity. And it has to be among several states and the Necessary and Proper Clause certainly allows regulation that is necessary to bring that into execution. And so, for example, to use the famous example of Wickard v. Filburn, which everyone loves, if Congress has a national price control statute, which effectively is what was going on with the Agricultural Adjustment Act, controlling supply of a product in interstate commerce might be a necessary and proper way of controlling the price. But I don't think that justifies the sort of thing you see with drugs here.

 

      As a general matter, then, I would say look, if Congress is focused on interstate trafficking and interstate commerce of substances, that is the proper role for the federal government. I happen to believe, as a practical matter, if that's what Congress did, if Congress said, heroine possession and distribution is only illegal under federal law, where it is also illegal under applicable state law—so the federal government is acting as that force multiplier to help states in that circumstance—I think that means that heroine is going to continue to be illegal throughout the United States.

 

      So the reason the focus is on marijuana is because marijuana is distinct among illegal drugs, in that there is such a broad divergence of opinion, and further, as the chapter by John Hudak and Christine Stenglein points out where public opinion has been changing very dramatically and very rapidly over the last couple decades. And so the question of federal and state laws diverging becomes important.

 

      For things like heroine, we're not going to have that divergence. If we did have that divergence, and I suspect Paul would disagree with me on this, I'd be happy to allow states to experiment. And I think the policy makers in those states could, and should, be held responsible by the voters in those states if those experiments turn out to be disasters. But that's not a possibility that I think is likely and so it's just not -- it’s a hypothetical that I don't think is something we have to think much about. Because I don't know of any jurisdiction in the country that wants to engage in those sorts of experiments. Whereas a majority of jurisdictions in the United States do want to engage, and are trying to engage in experiments with regard to marijuana.

 

Greg Walsh:  Perfect. Let's go to the next question.

 

Paul Pisani (sp):  Thank you. Paul Pisani here. I haven't read the book yet. I apologize if it's addressed in the book, but Professor Adler talked about regulate marijuana like alcohol. But I think there's a huge constitutional question mark there. Because alcohol has a Twenty-First Amendment. It has Section 2. Where you referenced the amicus briefs of Gonzales and Alabama not worrying about California. But without that Section 2 protection, I think we're in the same boat there. So has there been any -- why hasn't there been a push for maybe a constitutional amendment on this issue so it would have the apples to apples comparison of marijuana to alcohol. And it would be something where both pros and cons could work on working on -- those that want to stay "dry," like back in the prohibition days, those that want to go wet would have a common cause. So your thoughts on that, both speakers.

 

Prof. Jonathan H. Adler:  Sure. Thank you for the question. So Section 2 of the Twenty-First Amendment provides that the transportation or importation into any state territory, or possession of the United States for delivery or use therein of intoxicating liquors in violation of the law thereof is hereby prohibited. So as a constitutional matter, if you'd want to transport or import alcohol into a state in violation of its laws, that is prohibited by the Constitution. Federal statute actually has a slightly broader prohibition. So the way that is operational in the U.S. Code is it's not limited to just transportation or importation. So activities that are facilitating that in anticipation of that sort of activity are further outlawed.

 

      The function of Section 2 in the Twenty-First Amendment is to simply say Congress could not -- let's say we had, hypothetical, 49 states allow alcohol, one does not. The other 49 states say, you know that one outlier state, they need to just get over it. The Twenty-First Amendment prohibits Congress from making that choice. Prohibits Congress from saying that the state cant. But it doesn't do anything about -- you don’t need a Section 2 of the Twenty-First Amendment or its equivalent for Congress, as a matter of federal law, to create the same dynamic for marijuana.

 

      Congress has the power to regulate interstate commerce. Congress has the power to say interstate transportation and activities that are facilitating interstate transportation are legal in some contexts and illegal in others. So Section 2 of the Twenty First Amendment actually just cuts the other way. Congress could, if it wanted to, make marijuana legal nationwide, could under current doctrine at least, preempt state laws that tried to keep marijuana illegal. And could say there was no federal consequence if you take marijuana into a state that is trying to make it illegal. Congress could do those things. It can't do those things with alcohol because of Section 2 of the Twenty-First Amendment.

 

      Either way, I think what Congress should do is adopt the same policy notion that you see in Section 2 of the Twenty-First Amendment. That's to say it is an exercise of the traditional police power that state governments have to decide what sorts of intoxicating substances are allowed for use and under what circumstances. And what we, as Congress, are going to do is help ensure that state A doesn't prevent state B from being able to operationalize or implement its preference. And so if Colorado wants to allow people to use marijuana in Colorado, great. But if people in Colorado are preparing for distribution of marijuana that's going to be exported to Nebraska, we're not going to say to Nebraska, good luck catching them at the border. We, the federal government, are going to help Nebraska by enforcing against that.

 

      I think that's the right policy choice and I don't think that any constitutional amendment is required for Congress to treat marijuana that way.

 

Paul J. Larkin, Jr.:  Let me just add by saying that insofar as your asking why there hasn't been a move for a constitutional amendment, I think it's just a matter of practical politics. You would need two-thirds of each chamber in the Congress to vote in favor of it. And I think the people who would like to see that result figure they don't have two-thirds of the Senate and two-thirds of the House to vote in favor of it. Whereas, if you change it in each state, you can do it by a majority.

 

      Plus, if you start out by doing it in states that have these popular initiatives, such as California, you don't even put the state legislators to the choice. You just let individuals make the choice. And then ultimately, you can move it to states where the legislatures are responsible for making the law. But still, it's only by a majority. So I think people have avoided the constitutional amendment route just because it is far, far  more difficult than persuading a majority in each of the various different states, whether through ballot initiatives or through the traditional legislative process.

 

Prof. Jonathan H. Adler:  If I could just jump on that, Paul. Paul raises a very important and interesting aspect of this. Public opinion on marijuana has changed more rapidly in a shorter period of time than any other policy question that we've seen with the possible exception of same-sex marriage. That is to say, you don't see swings in voter preferences and public opinion polls like we've seen with marijuana. And there is a chapter in the book that talks about that.

 

      One of the other interesting things that the research finds though, is that while there is increasingly, in most of the country, majority support for marijuana legalization, a relatively small percentage of voters actually make this a high priority. There have been efforts to make marijuana decriminalization or legalization a social justice issue or a racial justice issue. We'll see if that catches on politically. But the reality is, in most states, if you can put it to the voters, a majority of voters think that some degree of marijuana reform is worthwhile and do believe in moving away from pure prohibition.

 

      But if you ask voters, what are your top three most important issues, marijuana reform is at the top of the list for very few voters. And so what that means is that state legislators, who are generally responsive to voters’ top priorities, haven't felt the need to enact reforms through legislation and most of the reforms have occurred through ballot initiative.

 

      Now that appears to be starting to change and we have seen some states, like now the State of Ohio, where legislation was seen as a way of preempting initiative. That is, if the legislature enacted some reforms, then there would be less of a push for an initiative. But interestingly, this is an issue where there is broad majority support for movement in a particular direction, but the salience or intensity of that support is very weak. And so that affects what sorts of political mechanisms people use. And that means marijuana reform has occurred more rapidly in states where you have ballot initiatives than in states that do not. And of course, the federal level .We don't have a ballot initiative and that may explain why Congress has not enacted or replicated what we see at the state level, at least has not thus far.

 

Paul J. Larkin, Jr.:  I don’t have anything to add.

 

Greg Walsh:  On behalf of The Federalist Society, I want to thank our speakers for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.