Should State Cannabis Programs Be a States’ Rights Issue?

Authored By: Jennifer Clifton

Clifton Cannabis Law, LLC
p. (541) 797-9995


As of March 2018, thirty states and the District of Columbia have enacted laws legalizing medical and/or recreational cannabis. Yet the conflict between state laws and the federal Controlled Substance Act still plays a significant role in acceptance of the changing climate surrounding cannabis. The uneasy coexistence of state legalization and federal prohibition results in uncertainty and fear among elected officials, law enforcement and members of the general public.

Where does federal regulatory power end, and to what degree are states accorded independent authority to decide for themselves what is right for their own citizens with respect to cannabis without intervention?

The clash between federal and state law must be resolved to answer this question. The Constitution simply does not give the federal government unlimited power over the states.

Our founders carefully crafted the Constitution to delegate specific enumerated powers to the federal government, reserving all other powers to the states. The Tenth Amendment provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” To unravel the states’ rights question, we must determine what powers have been delegated to the federal government under the Constitution and what powers remain exclusively with the states.

After having been dominated by the British government, the United States’s post-Revolutionary War Articles of Confederation were adopted as a backlash and aimed to preserve the independence and sovereignty of the states. An extremely limited central government was envisioned to prevent concentration of power. During this time, Congress was denied the power to regulate foreign trade or interstate trade. States developed discriminatory, protectionist trade policies that threatened economic prosperity and political unity as a result.

As tensions among the states and the federal government grew, the founders met at the Constitution Convention to discuss ways to more freely allow the flow of goods, services and money across state lines. Alexander Hamilton argued in Federalist Paper No. 22: “The Framers clearly sought to take away from the States, the power and the ability to legislate interfering and neighborly regulations of this sort.” They enabled Congress to create uniform rules for trade. The Interstate Commerce Clause, Article 1, Section 8, Clause 3 of the Constitution declares: the Congress shall have the power “to regulate commerce with foreign nations, and among several states, and with the Indian tribes.” The framers’ primary goal of the Commerce Clause was to facilitate the unrestrained intercourse between the states. In short, the Commerce Clause was adopted to place a limit on state legislation that discriminates against interstate commerce.

Defenders of states’ rights remained concerned, based on the lessons learned from England, that a powerful national government would run roughshod over the individual states. Thus, the Tenth Amendment was included as part of the Bill of Rights, reserving all non-delegated powers to the states themselves.

By the mid-20th century, the Supreme Court was expansively interpreting the Commerce Clause to allow Congress to claim authority over many non-economic matters, via a broad view of what constitutes intrastate and interstate commerce. Today, the Commerce Clause is regarded as the touchstone upon which a balance of power between federal government and the states on any matter – economic or not – hangs in the balance.

The Commerce Clause is considered the source of the Controlled Substances Act of 1970 (CSA). The constitutionality of Congress’s power in this regard was confirmed by the Supreme Court in the 2005 case of Gonzales vs. Raich.

In Gonzales, the Court held that Commerce Clause authority includes the power to prohibit the local cultivation and use of cannabis allowed under California law. The petitioners grew a mere six plants of cannabis for medical purposes pursuant to California law. The Drug Enforcement Agency (DEA) seized all six plants, and the petitioners followed with a lawsuit arguing that the DEA’s enforcement of the Controlled Substance Act violated the Commerce Clause. The Supreme Court rejected the argument that the ban on growing medical cannabis for personal use was unlawful. It ruled that, even if no goods were sold or transported across state lines, there could be an indirect effect on interstate commerce. Accordingly, the California law was determined to be in violation of the Commerce Clause and federal law was determined to trump state law, regardless of the Tenth Amendment.

The Gonzales opinion reversed the lower court’s ruling by the 9th Circuit Court of Appeals. In that decision, the court ruled that petitioners demonstrated a strong likelihood of success on the claim that the CSA is an unconstitutional exercise of Commerce Clause authority as applied to intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician under California law. The 9th Circuit relied heavily on United States vs. Lopez and United States vs. Morrison, and held that this separate class of purely local activities was beyond the reach of federal power. Lopez involved a claim arising from a 12th grade student who had carried a concealed handgun into high school and was charged with violating the Gun-Free School Zone Act of 1990. In Morrison, the plaintiff filed suit seeking a federal civil remedy for victims of gender-motivated violence; the plaintiff had been raped by three students at Virginia Polytechnic Institute. The Court held that the federal statute implicated in the lawsuit violated the Commerce Clause.

Just this year, the Supreme Court handed down an important case addressing the relationship between federal prohibitions and state laws in Murphy v. NCAA. The case involves sports betting laws in New Jersey, but the final paragraphs of the Court’s majority opinion (authored by Justice Alito) make clear why states’ rights advocates will be heartened by the ruling with respect to the state-federal law conflict concerning cannabis: 

The legalization of sports gambling is a controversial subject.  Supporters argue that legalization will produce revenue for the States and critically weaken illegal sports betting operations, which are often run by organized crime.  Opponents contend that legalizing sports gambling will hook the young on gambling, encourage people of modest means to squander their savings and earnings, and corrupt professional and college sports.

The legalization of sports gambling requires an important policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution.  PASPA is not. PASPA “regulate[s] state governments’ regulation” of their citizens, New York, 505 U. S., at 166.  The Constitution gives Congress no such power.

The CSA remains valid federal law and has not been determined to be in violation of the Commerce Clause, even though it also “regulates state governments’ regulation” of their citizens with respect to cannabis. Fortunately, those in the cannabis industry (growers, retailers, consumers) are aware that the federal government recently has taken the position to essentially “look the other way” when it comes to alleged violations of the CSA and has agreed in annual spending bills not to use federal funds to prosecute state legal medical cannabis activities. Therefore, the DEA has not been accorded the same resources it has had in the past concerning cannabis in recognition of the uneasy co-existence of state legalization laws and the federal government’s stubborn insistence to keep cannabis listed as a Schedule 1 drug.

Ironically, elected politicians that ordinarily are on the side of states’ rights and a smaller federal government are some of the biggest advocates of federal anti-cannabis laws. Change must take place, starting at the highest levels of government, through concerted grass-roots efforts. Push back in the judicial arena should continue as well, with case law such as the Murphy opinion providing additional support for a renewed reliance on Tenth Amendment states’ rights.

Until then, we might take comfort in the wisdom of one of Willie Nelson’s famous cannabis quotes:

I think people need to be educated to the fact that marijuana is not a drug. Marijuana is an herb and a flower. God put it here. If He put it here and He wants it to grow, what gives the government the right to say that God is wrong?”

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Elvin Rodríguez Fabilena


Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild