On Thursday, Attorney General Jeff Sessions overturned an Obama-era policy that allowed numerous states that legalized the sale and consumption of marijuana to operate freely without fear of the federal government cracking down on their activities. The decision was met with visceral scorn from elected leaders from such states on both sides of the political aisle as well as many commentators who view this policy as a regression to an older-yet-failed conception of drug policy in the United States.

In response to this development, my good friend and colleague Josh Hammer wrote a well-reasoned defense of Sessions' unpopular decision. Josh correctly pointed out that Sessions upheld the Supremacy Clause of the United States Constitution (See U.S. Const. art. VI.) in the face of an outright abuse of prosecutorial discretion (which I described in my piece yesterday about DACA) to reaffirm the importance of maintaining both the rule of law and the principle of federal law remaining superior to individual state law. He wrote the following:

The Supremacy Clause (Art. VI, cl. 2) of the U.S. Constitution, as originally promulgated and as survived through the John C. Calhoun-led 19th century nullification crisis, unambiguously establishes the supremacy of federal law over any countervailing state law.

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Consequently, it is thus a legal truism that (justified!) conservative and libertarian concerns for federalism and respect for the 10th Amendment must be seen through this prism. Where Congress has legal authority, via its strictly enumerated powers, to speak, and where Congress has indeed spoken, the states may not explicitly countervail or override. Much of the conservative argument against "sanctuary city" policies rests on precisely these grounds.

At the same time, the basic federalism construct embedded in the U.S. Constitution indeed does establish dual spheres of positive sovereignty as between the federal and state governments. (Normative sovereignty in our system of governance, by contrast, rests, as the Preamble to the U.S. Constitution makes clear, with "We the People.") It is not an exaggeration to call this unique American application of the subsidiarity principle the most distinct contribution the Founders made to the Western political theory canon; whereas the Frenchman Montesquieu had laid the foundation for a tripartite separation of powers construct as among the legislative, executive, and judicial branches, it was James Madison and his fellow Framers who birthed the concept of true federalism. And liberty-minded patriots are all the better for it.

Josh then correctly stated that the Obama administration failed in its Article II duty to "take care that the laws are faithfully executed" by selectively enforcing federal law under the false premise of prosecutorial discretion. Josh also compared the administration's abuse of prosecutorial discretion to that of DACA/DAPA, which I argued yesterday were facially unconstitutional and a categorical violation of the plenary power doctrine that the federal government maintains over immigration, to demonstrate that Sessions is simply following the same protocol of upholding the rule of law and leaving the decision to change the law to the policy makers in Congress. Both Josh and I agree completely that there is never an excuse to use prosecutorial discretion as a means of altering an entire department's policy (whether it's the Department of Justice or the Department of Homeland Security) in contravention to federal law.

That being said, I believe that Attorney General Sessions missed an opportunity to distinguish the facially unconstitutional nature of DACA/DAPA from the arguably problematic (and possibly unconstitutional) nature of the Controlled Substances Act. See 21 U.S.C. § 801 et. seq.. While the Obama-era Department of Justice categorically abused the policy of prosecutorial discretion to shield the states from possible federal interference, the Trump-era Department of Justice could have viewed the Controlled Substances Act as an overreach of federal authority on commerce and utilized the theory of departmentalism to argue that the federal government should have no say on how the states should govern the legality of marijuana.

Let me start from the Commerce Clause (See U.S. Const. art. I, s. 8, cl. 3), which states the following:

The Congress shall have power to... regulate commerce... among the several states...

From the text of the clause, it states that Congress has the power to specifically regulate commerce among several states, meaning that it only has power to regulate interstate commerce. Randy Barnett, Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center, said as much in a law review article back in 2001:

Textual analysis of the Commerce Clause strongly supports a conclusion that the phrase "among the several States" refers to "between people of different states." If this phrase included commerce between people of the same state that takes place wholly within a single state, the Commerce Clause would then embrace all commerce. This interpretation would render the phrase "among the several States" superfluous. The only reason for adding "among the several States" (and with foreign nations and Indian tribes) is to exclude some type of commerce from the power of Congress. Therefore, barring some extrinsic evidence that suggests another plausible possibility, we can safely conclude that the original meaning of "among the several States" to those who used and heard this phrase in the Constitution was commerce that occurred, in Hamilton's words, "between the States." Usage confirms this.

Barnett also relies on James Madison's words in The Federalist No. 45 to show that Congress' power does not include intrastate (meaning within the individual state) commerce:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Despite the Framers' belief that the federal government only had control over interstate commerce, both Congress and the Supreme Court expanded the clause's power to not only include interstate commerce, but also intrastate commerce as well as one's private consumption of goods one produces. The most egregious of these cases stems from arguably one of the worst Supreme Court decisions in history, Wickard v. Filburn, which held that Congress could impose quotas on wheat farmers on crops grown for their own consumption. As the Court stated:

"The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. . . . The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. . . . It follows that no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power." ...

Whether the subject of the regulation in question was "production," "consumption," or "marketing" is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. The same consideration might help in determining whether in the absence of Congressional action it would be permissible for the state to exert its power on the subject matter, even though in so doing it to some degree affected interstate commerce. But even if appellee's activity be 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, and this irrespective of whether such effect is what might at some earlier time have been defined as "direct" or "indirect."

Wickard v. Filburn, 317 U.S. 111, 124–25 (1942).

Over 50 years later, the Supreme Court would create a three-part test to determine the legitimacy of Congressional commerce power in U.S. v. Lopez. Chief Justice William Rehnquist described the test as follows:

Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power... First, Congress may regulate the use of the channels of interstate commerce... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities... Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce... i. e., those activities that substantially affect interstate commerce.

Within this final category, admittedly, our case law has not been clear whether an activity must "affect" or "substantially affect" interstate commerce in order to be within Congress' power to regulate it under the Commerce Clause... We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity "substantially affects" interstate commerce.

U.S. v. Lopez, 514 U.S. 549, 558–59 (1995).

How does this all relate back to the Controlled Substances Act? In 2004, the Supreme Court granted a writ of certiorari to Raich v. Ashcroft (subsequently named Gonzales v. Raich), a Ninth Circuit case to determine whether the Congress had the power to prohibit local cultivation and use of marijuana through the Necessary and Proper and Commerce Clauses. Raich was a California resident who suffered from various medical ailments and grew marijuana on her own private property solely for her medicinal purposes. The Drug Enforcement Agency (DEA) and the local county sheriff raided her house and sought to charge Raich with violating the Controlled Substances Act. The fact pattern of this case was similar to that of Wickard where Congress passed an Act that would regulate an individual's ability to produce goods for their own personal benefit.

In a 6-3 decision, the Supreme Court held that Congress did have the power to regulate individuals attempting to cultivate marijuana for personal use. Writing for the majority, Justice John Paul Stevens partially defended this holding by citing Wickard​, arguing that Congress can regulate "purely intrastate activity that is not itself 'commercial,'" and that Congress's intention in legislating the Controlled Substances Act was driven with the intention of regulating any market for legal or illegal drugs:

The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. Just as the Agricultural Adjustment Act was designed "to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses . . ." and consequently control the market price...a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets... In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.

Gonzales v. Raich, 545 U.S. 1, 18–19 (2005).

It is important to note that Justice Antonin Scalia concurred with the majority, saying that "the Controlled Substances Act (CSA) may validly be applied to respondents' cultivation, distribution, and possession of marijuana for personal, medicinal use." However, this was a case where Scalia and his originalist counterpart Justice Clarence Thomas did not see eye-to-eye on whether the Commerce Clause applied to personal usage of marijuana. In his dissent, Thomas said the following:

Respondents' local cultivation and consumption of marijuana is not "Commerce . . . among the several States." U.S. Const., Art. I, § 8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents' conduct, however, is not "necessary and proper for carrying into Execution" Congress' restrictions on the interstate drug trade. Art. I, § 8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents' conduct.

Citing the Lopez test, Thomas further states that Raich was correct in pointing out that Congress exceeded the Commerce Clause to regulate their intrastate activities:

On this traditional understanding of "commerce," the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market--intrastate or interstate, noncommercial or commercial--for marijuana. Respondents are correct that the CSA exceeds Congress' commerce power as applied to their conduct, which is purely intrastate and noncommercial.

Justice Sandra Day O'Connor also wrote a dissent, in which Justice Thomas and Chief Justice Rehnquist (who authored the majority opinion in U.S. v. Lopez) joined, that chastised the majority opinion's apparent bastardization of the Lopez test to allow the federal government to regulate beyond the textualist scope of the Commerce Clause:

Today's decision allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential (and the Court appears to equate "essential" with "necessary") to the interstate regulatory scheme. Seizing upon our language in Lopez that the statute prohibiting gun possession in school zones was "not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated"... the Court appears to reason that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme... If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as "transfer or possession of a firearm anywhere in the nation"--thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones. Furthermore, today's decision suggests we would readily sustain a congressional decision to attach the regulation of intrastate activity to a pre-existing comprehensive (or even not-so-comprehensive) scheme. If so, the Court invites increased federal regulation of local activity even if, as it suggests, Congress would not enact a new interstate scheme exclusively for the sake of reaching intrastate activity...

I cannot agree that our decision in Lopez contemplated such evasive or overbroad legislative strategies with approval. Until today, such arguments have been made only in dissent... Lopez and Morrison did not indicate that the constitutionality of federal regulation depends on superficial and formalistic distinctions. Likewise I did not understand our discussion of the role of courts in enforcing outer limits of the Commerce Clause for the sake of maintaining the federalist balance our Constitution requires... as a signal to Congress to enact legislation that is more extensive and more intrusive into the domain of state power. If the Court always defers to Congress as it does today, little may be left to the notion of enumerated powers.

If it is indeed the case that Gonzales v. Raich expanded the government's limited power on interstate commerce with regard to the Controlled Substances Act, then it can be argued that Raich was wrongly decided from an originalist standpoint. While Congress does have the power to regulate commerce between the states, it would represent an overreach of federal power to bar not only the personal usage of marijuana and other drugs, but also the ability of the states to engage in commerce within its sovereign boundaries. This violates one of the more important tenets of federalism, which allows the states to control their own destiny on matters that the federal government does not have constitutional sway over vis-a-vis the United States Constitution. Thus, the Controlled Substances Act represents an unconstitutional federal power grab on activities that would best be left to the states, namely how to deal with marijuana and other narcotics on a state-by-state level.

Given the belief that Raich was wrongly decided and the Controlled Substances Act could be seen as an unconstitutional law that exceeds Congress' enumerated powers, how could Attorney General Sessions have challenged the CSA without falling into the same damning process that the Obama administration followed? This is where the theory of departmentalism comes into play. National Review's Matthew Franck describes it as follows:

Departmentalism holds that each branch of government has some kind of decisive authority to interpret the Constitution where its own power is concerned. So presidents may legitimately feel themselves not bound by judicial pronouncements on the exercise of core constitutional powers of the executive. And Congress may legitimately balk at being told by the courts what the limits of its constitutional legislative powers are.

By departmentalism standards, members of the executive branch can stand firmly against the rulings of the judiciary that the executive affirmatively believes represents an outrageous assault on the federal government's authority or the United States Constitution. As far as the legislative and the executive are concerned, the bicameral and presentment system forces both branches to make law in accordance with the enumerated powers granted by Article I of the Constitution and to take care that the laws are faithfully executed according to Article II. If Attorney General Sessions is of the belief that the federal government should be limited to precisely those enumerated powers as opposed to its current iteration of expansive and potentially tyrannical power grabs, then he could have used the Controlled Substances Act as a means to uphold the originalist meaning of the Commerce Clause and divorce the executive branch from laws that may have had good intentions but far exceeded its constitutional authority.

If Sessions had done this, then he would have been able to protect the interests of federalism as well as uphold the view that the federal government should be limited to only its enumerated powers. However, Attorney General Sessions missed that opportunity and will follow the course of the Supremacy Clause until Congress presents the moral and political courage to finally reform the Controlled Substances Act and give the states the authority to cultivate and sell marijuana within their own borders.

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