Fault Lines
16 January 2019

The Drug War Trumps Federalism Again

January 27, 2017 (Fault Lines) – After Rehnquist became Chief Justice and many of the old, New Deal liberals began to retire or die, there was a hope among many conservative and libertarian lawyers and political wonks that the Supreme Court would plunge a dagger into the heart of the New Deal jurisprudence. Here’s a quick history lesson.

Before the Great Depression, the Supreme Court had been more friendly to federalism and hostile to some federal expansion. Once the U.S. was thrown into financial chaos, and FDR presented his many, often contradictory plans, the Supreme Court interpreted federal power broadly. Enumerated powers and the Tenth Amendment were merely treated as a speed bump that was usually ignored but almost always driven over with little effort.

Lochner was probably the most reviled case among progressives, while conservatives loathed Wickard. Crudely summarized, the former case restrained federal action; the latter case excused broad federal action. As the Rehnquist Court struck a few blows at the New Deal era jurisprudence, there was a question of whether the Court would roll back precedent or be content with prohibiting further expansion.

The moment of truth came in Gonzales v. Raich, which sought to overturn Wickard. The plaintiff there conceded that the federal government may have the power to regulate interstate distribution of marijuana, but plaintiff argued that Congress had no authority to regulate intrastate marijuana cultivation and possession. The only thing surprising about a case that would weaken the weapons to fight the drug war was that Raich got three votes. That Justice Scalia sided with expansive federal power was not entirely surprising, but not entirely expected.

In any event, this decision did not resolve the tension between federal and state marijuana laws. States have moved in the direction of decriminalizing or legalizing marijuana, while the feds have refused to change its classification from a Schedule I (illegal for any purpose) drug. Although the feds have graciously stopped enforcing some federal laws in states where medical marijuana is legal. But Congress and the regulatory agencies have not taken any action to accommodate state law. Predictably, this leads to conflict.

One such conflict was recently addressed by the Colorado Supreme Court. Under the Colorado Constitution, seized marijuana is to be returned to the owner upon an acquittal. Robert Crouse was one such person, but, after his acquittal, the police refused to return the marijuana. While their obligation under state law was clear, they argued that federal law prohibited them from returning marijuana. Federal law prohibits distributing marijuana. So, the argument goes, returning marijuana to lawful owner under state law is an illegal distribution under federal law.

Either this was a genuine issue that the police and prosecutor needed guidance on, or it is simply a clever argument to avoid Colorado’s law. If federal law does prohibit returning marijuana wrongfully seized under state law, then it’s a de facto get out of jail free card. A marijuana grower could not bring a federal civil rights action, and the police would either have immunity or be faultless under state law for wrongful seizure.

The only remaining legal check on a wrongful seizure would be the Fourth Amendment. But in cases where the person was acquitted or never charged, an aggrieved person has no remedy for a wrongful seizure. In other words, it goes about half way towards re-criminalizing marijuana.

The State (no, I won’t refer to it as “The People”) lost on this argument at the trial court level and at the appellate level. But it eventually found a court with enough votes. The primary basis that Crouse won on below was a provision that created an exception. Section 885(d) states that

no civil or criminal liability shall be imposed by virtue of this subchapter . . . upon any duly authorized officer of any State, territory, political subdivision thereof, the District of Columbia, or any possession of the United States, who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.

The majority of Colorado Supreme Court agreed with the State’s argument. In their view, it was impossible to comply with both the federal and state laws. In that case, they concluded, federal law prevails. In addition, the above section did not apply because the return of marijuana wasn’t lawful under federal law.

Blink and you miss the circular reasoning in there. They defined an operative term in the exception by way of the general prohibition. In other words, the Court concluded that because the statute prohibits distribution, there is no distribution that can be lawful. Well yes. But that ignores the fact that this is intended to be an exception and followed to its logical conclusion, an absurd construction, as the dissent ably points out:

The majority defines “lawful” with reference to the CSA’s prohibition on distribution of controlled substances and states that when law enforcement officers return marijuana in compliance with section 14(2)(e) of article XVIII of the Colorado Constitution, they are distributing marijuana in violation of the CSA. Maj. op. ¶ 15. Under this same reasoning, however, when a law enforcement officer provides marijuana to a target in a sting operation, the officer is also distributing marijuana in violation of the CSA, clearly an absurd result.

One wonders if the underlying goods were not drugs if the analysis would have been different. For example, the Court may have been able to avoid the preemption analysis altogether through the doctrine of constitutional avoidance. Plus, as the dissent points out, the federal statute disclaimed that it was intended to displace state law and only invoked preemption in when the two laws “cannot consistently stand together.”

What particularly gave rise to the apparent conflict between state and federal law was the Court’s interpretation of Section 885, which required that the law enforcement action to be lawful under both state and federal law. They could have construed the ambiguous provision to immunize if it was lawful under either. An application of the nearly dead rule of lenity would have likely reached the same result. But, hey man, it’s the devil’s weed, and Dave’s not here. So, those aren’t doctrines that apply to drug statutes.

The more difficult issue is whether an officer who returns seized drugs is “lawfully engaged in the enforcement of any [drug law].” Arguably, the return of seized property after an acquittal is implicit in being engaged in enforcement, but it’s not clearly within the scope of enforcement. While this presents a potential problem, the interpretative rules would probably direct the court to pick the result embraced by the dissent.

Anyone who has been around the criminal justice or social services system knows that drugs have a lot of collateral, negative consequences. As true as that may be, it does not excuse ends-justify-the-means thinking. And federalism isn’t just for those situations where Congressional action is morally right. Federalism is 24/7/365 idea. Or at least it should be.

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