Marijuana Still Illegal Throughout the USA (Yes, Even in Colorado)

 

 

 

A (Much) Better Lawyer than the New York Times

 

 

A headline in today's The New York Times declares Attorney General Holder's purported belief that "Legal Marijuana Business Should have Access to Banks."   According to the article, which appears here, Holder expressed this opinion in remarks delivered at the University of Virginia's Miller Center.  In particular, the article reports that the Department of Justice will soon issue guidance to banks assuring such institutions that they accept deposits from enterprises that sell marijuana in states such as Colorado where many such sales do not violate state law.   The article follows a January 11 article, also in the Times, entitled "Banks Say No to Marijuana Money, Legal or Not."  

 

The Times is apparently confused about the meaning of "legal" and the relationship between state and federal law.   It's hard to imagine that the Attorney General, a very good lawyer, referred to the sale of marijuana in states such as Colorado as "legal" or referred to enterprises selling such marijuana as "legal businesses."  Indeed, despite the headline, the article does not quote the Attorney General as referring to such conduct as "legal" or any synonym thereof.

 To be sure, the production, possession and sale of marijuana does not violate the law of Colorado or certain other states in certain circumstances.  Moreover, the Department of Justice has declared that, with some exceptions, it will not bring criminal prosecutions against individuals or businesses that possess, purchase or sell marijuana in compliance with state law, so long as the states in question "establish strict regulatory schemes that protect eight federal interests."  However, Congress has not repealed the federal ban on the possession and sale of marijuana.  In addition, the Supreme Court upheld this ban as within Congress's commerce power less than a decade ago, even though such possession was lawful in the state where the possessors resided.  See Gonzales v. Raich, 545 U.S. 1 (2005).    Thus, the Administration's refusal to devote scarce resources to the prosecution of relatively minor crimes does not thereby repeal federal law or otherwise render activity inconsistent with federal criminal statutes "legal."  Instead, as the memorandum announcing selective non-enforcement explained, the new policy "does not in any way alter the Department's authority to enforce federal law, including laws relating to marijuana, regardless of state law."  The memorandum also accurately notes that neither it "nor any state or local law provides a legal defense to any violation of federal law, including [laws banning the possession and sale of marijuana]." 

In short, regardless of recent legal developments in states like Colorado, there is no such thing as a "legal marijuana business" in the United States of America.  Instead, given the Constitution's Supremacy Clause, both the possession and sale of marijuana remain unlawful in every state and locality of the Union, without regard to state laws that purport to authorize the practice.  States cannot preempt otherwise valid federal statutes.  As the Supreme Court explained well over a century ago:

"The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. The United States is not a foreign sovereignty as regards the several States, but is a concurrent, and, within its jurisdiction, paramount sovereignty. Every citizen of a State is a subject of two distinct sovereignties, having concurrent jurisdiction in the State — concurrent as to place and persons, though distinct as to subject-matter."

See Claflin v. Houseman, 93 U.S. 130, 136-37 (1876) (emphasis added).

Short of repeal of federal statutory law banning the possession and sale of marijuana, one can imagine only one hypothetical scenario in which the Times' description would be partially accurate.  As previously explained on this blog, the President is not bound by the Supreme Court's interpretation of the Constitution but must instead exercise his or her independent judgment when discerning the meaning of the document.  Thus, a President who disagreed with Raich and believed that the National Government lacks the authority to regulate the purely intrastate possession and sale of marijuana could decline to enforce legislation purporting to ban such activity for that reason alone, and without regard to the content of state or local laws. 

If a President took and announced such a position, one could accurately state that such possession and sale was legal in those states (and only those states) that chose not to regulate such conduct.  Even here, however, such conduct would only be legal outside the courts, as judges would still be bound by the Supreme Court's determination in Raich.  Thus, a Presidential declaration that such regulation exceeded the power of Congress would not prevent judges from treating such conduct as unlawful when adjudicating cases properly before them.   So, for instance, a court could decline to enforce a contract for the purchase and sale of marijuana, in the same way that it would decline to enforce a contract in restraint of trade.  See Dr. Miles v. John D. Park & Sons, 220 U.S.  373 (1910) (holding that contract violating the Sherman Act was not enforceable and thus could not support a diversity action for tortious interference with contract).  Moreover, if an insurance contract limited coverage to accidents resulting from "lawful activities," a court could hold that the company need not pay compensation to an insured injured in the course of conducting the business of selling marijuana. 

It must be emphasized that the scenario just described is purely hypothetical.  After all, the Obama Administration has articulated and defended an extremely broad conception of Congressional power.  Indeed, the Administration has even claimed that Congress possesses the authority to compel  individuals to purchase health insurance against their will, a vision that the Supreme Court thankfully and properly rejected.  Unless and until this Administration or a future Administration adopts a less expansive (and more accurate) conception of the Commerce Power, the possession and sale of marijuana will remain entirely illegal, yes, even in Colorado. 

 

On Drones, Due Process and U.S. Soil

Could Have Used Some Drones in 1794

     

       Some, including Senator Rand Paul of Kentucky, are taking issue with Attorney General Holder's claim that the President may lawfully employ drones to attack American citizens if such individuals pose an imminent military threat against the United States.  Indeed, Senator Paul has gone so far as to begin a filibuster against John Brennan, President Obama's nominee for CIA Director, saying he will only relent if President Obama promises never to employ drone strikes (or, presumably, other lethal force) on American citizens on American soil.  According to the Senator:

       "The U.S. Attorney General’s refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening, it is an affront on the constitutional due process rights of all Americans."

       Speaking of his planned filibuster, Senator Paul said:

     "I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court."

     Senator Paul has also said "I will not let [President] Obama shred the Constitution."

     At the outset it should be noted that a drone strike against an American citizen who has joined Al Qaeda would not be a unilateral executive action.  Instead, as previously explained on this blog, Congress has authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." (emphases added).  This legislation does not empower the President to "arrest and charge" members of Al Qaeda.  Instead, the resolution, entitled the "Authorization to Use Military Force," authorizes him to use "force."  Moreover, the legislation does  not require or contemplate that the President will hold a hearing before using such force.  Instead, it empowers the President himself, and not a judge or jury, to "determine" which individuals fall into the relevant category. In short, Congress, which possesses the power to authorize war, has granted the Commander-in-Chief plenary power to employ the nation's military assets against a defined enemy.  In these circumstances the President's  "authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.  In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty."  See Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1953) (Jackson, J. concurring).   

 

     To be sure, such power is not unlimited but is instead still subject to independent constitutional limitations. Thus, Congress could not, for instance, empower the President to use military force against all American Presbyterians because it believes that religion to be false.  Nor could it authorize the President to round up and detain all Muslims because most if not all members of Al Qaeda profess to be Muslims.  However, Congress has done no such thing in this case.  Instead, Congress has authorized the use of force against a foreign-based organization that attacked the United States in 2001, an attack that was the culmination of a war, documented by the 9-11 Commission Report, that the organization launched against the United States during the 1990s.  That war, it will be recalled, included bombings of two U.S. Embassies, the Khobar Towers in Saudi Arabia, and the U.S.S. Cole in Yemen; each attack killed several Americans.  The 9-11 attacks killed over 3,000 people.  Congress could have, if it wished, done nothing, doubling down on the pre-9-11 policy of responding to Al Qaeda's war against the United States with the same tactics employed against the Mafia, that is, wiretaps, warrants and indictments.  In the same way, Congress could have ignored Hitler's declaration of war against the United States while FDR sought warrants for Hitler's arrest.   However, Congress chose a different approach, as it was entitled to do.  That's why President Obama employed a Seal team, and not an extradition order, against Osama Bin Laden, and, as previously explained on this blog, properly so.

     With all due respect to Senator Paul, the Constitution, including the Fifth Amendment,  imposes no per se ban on the use of lethal force, whether via drones, B-52s, or muskets, against American Citizens on American soil.  Recall that the President and Attorney General Holder have contemplated only attacks against Americans who, hypothetically, join Al Qaeda and assist it     By its terms, the Due Process Clause applies to all "persons," and not just American citizens.  Thus, if the Clause requires a judicial hearing before the use of force against an American assisting foreign invaders, then it would presumably require such a hearing before using force against the foreign invaders as well.  Such a result, however, would produce strange results indeed.  The United States Navy was entitled to depth charge Japanese submarines operating in Pearl Harbor on the morning of December 7, 1941 instead of seeking warrants for the submariners' arrest.

    Moreover, and as previously explained on this blog, the Constitution itself expressly contemplates such a use of force.  That is, Article I, Section 8, cl. 15 empowers Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."  (emphases added)  The second contemplated use of the militia --- to suppress insurrections --- necessarily entails the use of military force, without trial in Civilian Court, against American citizens who are attacking the United States.  This power is not hypothetical or dormant.  As Jack Goldsmith has explained, Congress exercised this power at the dawn of the Republic, empowering the President in 1792 to call forth the militia when necessary to put down insurrections or repel invasions.  As previously explained on this blog, President Washington did exactly that in 1794, when he called forth the militia to suppress the so-called "Whiskey Rebellion" in Pennsylvania.   Had the rebels resisted federal authority, as they had done before Washington gathered the militia, the army that Washington led could have "shot first and asked questions later" instead of placing the rebels under arrest.  This contemporaneous construction of the Constitution, by the same Congress that proposed the Bill of Rights, including the Fifth Amendment and its Due Process Clause, is powerful evidence that the use of military force against American citizens on U.S. soil is sometimes lawful.    Abraham Lincoln and U.S. Grant apparently agreed.

  There is no reason in law or logic to treat Americans who attempt to assist an Al Qaeda attack on the U.S.A. any differently from those who instigated the Whiskey Rebellion or fired on Fort Sumter.  Such individuals are taking part in an "invasion" of the United States within the meaning of the militia clause, and Congress can surely authorize the President to use the standing Army, and not merely the militia, to repel such invasions.  As Jack Goldsmith has said in the same recent post cited above:

  "[T] he President could invoke the AUMF if a U.S. citizen al Qaeda member were in the midst of an attack on the homeland.  Imagine, for example, a repeat of 9/11 where there is a known U.S. citizen in the cockpit; the President could rely on the AUMF, in addition to Article II, in meeting that attack.  And he could use drones if he wanted (though Congress could, if it wanted, restrict their use)."

   Mike Ramsey, another expert on the scope of the war powers, has expressed agreement with Goldsmith, albeit on somewhat different grounds.  See here. 

 

   By contrast, Senator Paul and others who share his position would apparently have the military "stand down" in the face of such an attack because an American citizen is behind it.  In my view, Professor Goldsmith plainly has the better of this argument.  While Senator Paul's commitment to the Bill of Rights is commendable, the Constitution is not a suicide pact.

Update: