Cannabis and Federalism

Understanding Federalism Through the Bizarre Problem of Cannabis Legalization on Nantucket and Martha’s Vineyard

The nascent cannabis industry in Nantucket and Martha’s Vineyard has hit a unique hurdle in the commercialization of recreation cannabis. The obstacle is due strictly to its geography and provides great context to discuss federalism and the problem of contradictory state and federal laws.

Because Nantucket and Martha’s Vineyard are islands in Massachusetts, suppliers from the mainland are forced to cross through federal waters when they are en route on deliveries. These suppliers—duly licensed by the Mass Cannabis Commission—are open to catching a trafficking charge under federal law when they cross through the federal waters. Likewise, cannabis producers on the islands often need access to testing and quality control facilities on the mainland to comply with state regulations. This, too, demands a trip through federal territory where state-sanctioned conduct risks a Schedule I trafficking charge under the Controlled Substances Act.

There are a handful of laws that define the balance of power between states and the federal government. These laws are particularly important in understanding the tensions created by the emerging recreational cannabis industry. They are:

The Supremacy Clause: This is the provision in the US Constitution that says federal law supersedes state law where their laws are in conflict. Article VI, Clause 2 establishes that the Constitution, federal laws made pursuant to it and treaties made under its authority constitute the “supreme law of the land.”

10th Amendment: Often referred to as the “anti-commandeering clause,” it says that the feds cannot commandeer state resources to pursue their own objectives. It is a basic tenant of Federalism that US States are true sovereigns in their own right with the ability to set and pursue policy. Thus, the feds cannot order states to redirect their own law enforcement resources toward a federal goal. To use state and local police to prosecute federal cannabis crimes would be to “commander” the resources and sovereignty of the state.

Federal Controlled Substances Act: This Act codifies cannabis as a Schedule I illegal substance—the most severe category, supposedly based on the dangerousness of the drug balanced against its legitimate medical uses. Marijuana remains on the top of the schedule alongside heroin, MDMA and mescaline.

To understand the problem on Nantucket and Martha’s Vineyard, it is also helpful to consider important differences between “medical marijuana” schemes and full legalization, and how they differ under federal law.

Medical Marijuana: The 10th Amendment makes a strong case for the legality of medical marijuana. Under a medical scheme, state governments can argue that they are not stopping the federal government from spending their own resources to prosecute cannabis. Under a medical scheme, the states may argue that they are merely carving out a portion of our own population that they have declined to use state resources to prosecute. The feds are still able to prosecute as they see fit, and the states are not directly opposing federal drug policy by creating and producing cannabis in a free market. In this sense, medical marijuana schemes are arguably consonant with the Supremacy Clause and fortified by 10th Amendment “anti-commandeering.”

Recreational Pot: With full-scale legalization, however, it is a much different story. Now, recreational states have sanctioned full-scale production of cannabis that flies directly in the face of federal policy. States now participate in the growing, regulating, sale and consumption of cannabis—and collect taxes from it. The states can no longer argue that they are simply declining to prosecute marijuana without substantially frustrating federal prohibition. Recreational cannabis creates a whole new market in direct violation of the federal Controlled Substances Act.

As a result, with every day that goes by, recreational states like California, Colorado, Maine, Massachusetts are actively working against the laws of the Federal government. Every day that these state governments break the supreme law of the land in plain view, and in a way the feds are abdicating power. It is worth nothing that the federal government has very limited policing capabilities. Crime has always been thought of as a predominantly local issue, and more than 99% of all criminal law enforcement happens on the state level. So while the DEA could, in theory, arrest you for growing a plant in Massachusetts, they simply don’t have the horses to police on that level. And of course the feds are aware of the political blowback that would occur if they chose to prosecute residents following state law.

So it is a particularly obvious slap in the face to Federal supremacy when a state sanctioned business traffics in a controlled substance through territory under their exclusive control.