On May 14, 2018, the Supreme Court chose to revive American Federalism
when a seven-member majority of the Court held the Professional and Amateur
Sports Protection Act of 1992 (PASPA) to be unconstitutional. The case,
Murphy v. NCAA, et al., resulted in a ruling that struck down the provision of PASPA that prohibited
the states from authorizing sports gambling, which ultimately drove the
Court to declare the entire Act unconstitutional.
The Supreme Court’s holding last Monday affirmed the principle that
Congress does not have the power to order states to pass or refrain from
passing laws. Congress cannot commandeer states’ legislative authority,
a principle known as the “anti-commandeering” rule interpreted
from the Tenth Amendment to the U.S. Constitution. The Court found the
provision of PASPA that prevented states from repealing their own prohibitions
on gambling—a private activity— was by definition an act of
commandeering. The decision in
Murphy clarifies that not only does the anti-commandeering rule serve as a means
to defend against Congress compelling states to enact legislation, but
it also serves as a shield against Congress imposing prohibitions on the
states preventing them from enacting new laws.
Murphy had a number of marijuana law reform scholars as amici (impartial, voluntary
advisors) in the case, and the reason is because the holding in
Murphy directly impacts marijuana legalization.
For starters, this case clarifies that the federal government can neither
force the states to enforce federal marijuana policy, nor can they prohibit
the states from implementing or revising their own marijuana policies.
Further, if a state is constitutionally at liberty to repeal their state
laws banning sports gambling, then they are entitled to repeal their own
state bans on possession, manufacture, and distribution of marijuana.
Murphy provides the precedent the states with active regulatory schemes regarding
marijuana have been in need of to survive preemption challenges regarding
both the authorization of marijuana use, as well as licensing laws. The
Court found no constitutional basis in drawing a distinction between “licensing”
and “authorizing” an activity. The Court noted that “Just
like authorization, licensure merely provides the state’s permission
to engage in activity”.
However, Justice Alito’s opinion recognizes the implications of other
areas of the Constitution, noting “if the license imposes additional
restrictions that interfere with activity—such as requiring a retail
licensee to collect sales taxes—those additional restrictions likely
would be subject to preemption, even if the underlying license is not.”
In effect, it appears the Court is prepared to recognize state power to
license private marijuana industry operators, but the Court is not prepared
to interpret that power as an unlimited authority for the states to regulate
their licensing scheme however they please.
It is important to recognize the federal government is not without power.
Murphy holds that state-law repeals are not pre-emptible. What this does not mean
is that the federal government may not prohibit marijuana. The federal
government can, and likely will, continue to enforce their own laws in
states with drug policies that are in direct conflict with federal policy.
The federal government just cannot prescribe what shall be orthodox in
marijuana policy. In sum, the feds cannot tell the states what the law
of that state shall be; however, that is not to say they cannot enforce
the federal law wherever they please, whenever they have the resources to do so.
At Feldmann Nagel Cantafio PLLC, our team consists of law professors, former
federal and state prosecutors, law enforcement officials, and judges.
Utilizing our diversely-experienced staff, we consider and understand
the conflict between federal and state law from various perspectives.
Attorney Charles Feldmann—former DEA Task Force Commander himself—understands
government policy and utilizes his background to help his clients in the
marijuana industry achieve and maintain strict compliance with state and
federal regulations. If you have any questions about the implications
of the holding in
Murphy, are in need of a consultant for your marijuana business, or have concerns
regarding federal and state marijuana policy, reach out to our team today.