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The Supreme Court Puts a Halt to a Commandeering Congress

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.


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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 Cantafio & Song 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.