Constitutional Criminal Law is at the Heart of the Marijuana Battle

Legalized marijuana is in the news again, this time because of an announcement by the Trump administration ordering prosecutors to crack down on all usage and possession of the drug. Whether you are for or against its use and legalization, the battle is one that has roots all the way back to the time our country was founded. It is a study in the interplay between state and federal governments when it come to making and enforcing criminal laws.

A History Lesson

It is best to start with a basic history lesson. When our country was founded, the Founding Fathers had a fear of big government, coming off of having been ruled by a monarchy that told them what to do from a faraway land. Thus, wanting locals to have a say in their own governance, our federal and constitutional framework was set up to limit what the federal government could tell states what to do in many areas. One such area is criminal law, where states generally were given free reign to determine what would and would not be a crime.

The Constitutional Exception

Of course, we know that federal crimes exist and that there are federal criminal laws. That is because of the interstate commerce clause, a provision in the Constitution that allows the federal government to pass laws about any matter that has to do with interstate commerce.

One such area is drugs. The logic is that drugs are carried over state lines, they are manufactured and shipped over state lines, and people from one state may pay for them in another state. Drugs and the money that buys them are not confined to state borders. Thus, Congress can pass laws about drugs.

The constitution’s Supremacy Clause also says that where the federal government does and can pass laws, state law cannot contradict or overturn those laws.

How Legalized Marijuana Happened

We know federal law still makes marijuana use and possession illegal under the Controlled Substance Act. If this is the case, then how can states pass laws legalizing marijuana, as so many have done in the past few years?

Simply put, this has been possible because past presidential administrations have looked the other way. In fact, for the last few years the federal budget has even included a provision that prohibits the Department of Justice from using any money to enforce the Controlled Substance Act. In short, pot was legal because the federal government voluntarily stopped enforcing those laws in states that wanted pot to be legal.

Reversal of Policy

The Trump Administration just informed federal prosecutors to enforce federal drug laws, reversing the former policy, and bringing the validity of state laws into doubt.

There will no doubt be constitutional challenges to legality—likely, as soon as someone from a pot-legal state is arrested and charged with federal drug crimes. Because the federal government does not have law enforcement officers on the streets, it remains to be seen whether local police departments will even bother to enforce drug laws just for the feds, in states where the law says marijuana is legal.

If you are charged with a crime you have constitutional rights. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss using your rights to defend against prosecution.