Responding to Erwin Chemerinsky’s Op-Ed on Marijuana Legalization

By Sam Mendez, Executive Director of the Cannabis Law and Policy Project

There is been much recent discussion, both on this blog and around the country, about the possibility of legalizing marijuana at the federal level (or at least changing it’s current legal status). Beyond simply arguing for or against the idea, there are questions as to how exactly legalization would occur if the day came. Naturally, there is more to it than what initially meets the eye. Earlier today, the Washington Post published an op-ed by Erwin Chemerinsky that points out how legalization will not be as swift or simple as some might think.

Photo credit: Elaine Thompson/Associated Press

Credit: Elaine Thompson/Associated Press

Erwin Chemerinsky is one of the nation’s most respected legal scholars, particularly in constitutional law. He is currently the second-most frequently cited American legal scholar. It would be folly to attempt to pin him down as “pro-” or “anti-” legalization, though he does write in the op-ed, “Like the prohibition of alcohol in the 1920s, the prohibition of marijuana has been a failure.” In 2013, he wrote a very interesting piece in the L.A. Times urging the federal government to respect the laws of Washington and Colorado, which had recently legalized marijuana. In that piece, Chemerinsky argued that these state laws were not necessarily preempted by the federal Controlled Substances Act, which makes possession of marijuana a punishable crime. “Preemption” is a legal doctrine that effectively means where there is a conflict between federal and state laws, the federal laws will carry the day. As Chemerinsky wrote,

The preemption doctrine is based on the supremacy clause of Article VI of the Constitution, which makes federal law “the supreme law of the land” trumping conflicting state laws. The question, then, is whether there is a conflict between the federal government prohibiting small amounts of marijuana and some states not doing so.

He then argued that there is not a conflict when one level of government has a law prohibiting conduct and another level of government does not have such a law. He stated, “a state can decide that certain conduct does not violate state law even if it offends federal law. It is then for the federal government to decide how, if at all, it wants to enforce the federal law.”

In the piece published today, Chemerinsky stated correctly that legalizing marijuana at the federal level will not necessarily make marijuana legal in the entire country, because states may still have laws prohibiting marijuana. He wrote,

Completely legalizing marijuana in the United States would require the actions of both the federal government and every state government. If the federal government repealed its criminal prohibition of marijuana or rescheduled the drug under federal law, that would not change state laws that forbid its possession or sale. Likewise, state governments can repeal their marijuana laws, in whole or in part, but that does not change federal law.

Chemerinsky is correct that a change of laws at one level of government does not necessarily affect the laws of another level of government. He also correctly pointed out the effort government has gone to arrest people for marijuana violations, particularly African Americans and Latinos.

What was not mentioned in this op-ed was the likely subsequent scenario should federal laws change: and that is the inevitability of states following and legalizing marijuana. To be sure, states and localities would be free to prohibit marijuana just as some communities still prohibit alcohol. But the majority of states and localities would probably legalize following a hypothetical federal legalization, simply because of the potential tax base gained from regulating marijuana. Colorado, merely the 22nd largest state by population, raised nearly $1 billion in 2015 in marijuana related taxes. Plenty of arguments can be made against legalizing marijuana, be they moral or health related, but what state could resist those potential taxes?

This is not to say that Chemerinsky is wrong. He is correct to state that legalization will be “much harder than you think.” Still, one must wonder how fast legalization at the state level would pick up steam if the federal government made such a change.

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