A High Idea: Amend the Constitution

Earlier this week, Ohio legalized marijuana. In doing so, it became the 24th state to allow adult recreational cannabis use. The vote passed by a wide margin, 57% to 43%.

Almost on cue, Kevin Sabet blamed abortion, which was also on the Ohio ballot and passed as a state constitutional amendment:

In the same breath, Smart Approaches for Marijuana (Sabet’s non-profit) called on state lawmakers to undo the democratic vote in favor of a measure entitled “To Commercialize, Regulate, Legalize, and Tax the Adult Use of Cannabis” by eliminating commercial sales, advertising and production:

To recap: Marijuana legalization wins by 14 points. Not close. Prohibitionist crowd then complains that too many votes were counted because another hot-button issue drove higher turnout. So, prohibitionists, apparently unhappy with the high turnout, call for state representatives, who are easier to lobby/influence than the populace, to undo the key pillars of the initiative.

Again, yours truly is not the biggest fan of ballot initiatives. But I would never ask state lawmakers to undo an initiative enacted by the people let alone by such a significant margin. What happened in Ohio is clear. The state ballot presented voters the proposed law and talking points from both sides. Voters went with “Regulate Marijuana Like Alcohol,” rejecting arguments advanced by prohibitionists:

This is a big deal. Ohio is a middle-of-the-country state both geographically and politically. Until the 2020 election, it served as a modern bellwether for the presidency. In other words, if you lose Ohio big, you’ve lost the issue.¹

Meanwhile, at the federal level—where direct democracy initiatives don’t work too good—legalization languishes. Even if rescheduling happens, federal law will almost certainly lag far behind state law by prohibiting a substance that nearly half of the states have legalized for recreational use; after Ohio, that number will grow.

So what do we do? Because of the U.S. Constitution’s Supremacy Clause, no matter what happens in the states, federal prohibition under the federal Controlled Substances Act reigns supreme, unless…

One idea is to file a longshot lawsuit seeking to overturn a recent Supreme Court precedent concluding that the CSA applies to local cultivation, armed with a worse fact pattern and one plaintiff that undermines the very legal theory being advanced? Perhaps more on that for another day.² In the meantime, check out the footnote. There’s a lot to say. Boies Schiller is a superb law firm, but my skepticism is great.

While we’re spitballing, here’s another longshot idea to consider: putting a U.S. constitutional amendment on the table. Let’s take the issue to the states where the reform is happening anyway. It worked to get rid of alcohol prohibition, after all.

Article V of the U.S. Constitution governs the amendment process:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

The Constitution thus presents two paths to proposing an amendment. First, a supermajority of both houses. That’s a non-starter, of course, because SAFE Banking can’t even squeak through with simple majorities. Second, two thirds of states can call for a convention to propose Constitutional amendments:

I know what you’re thinking. We’ve got a hair less than half the states in tow, so how do we get to the two-thirds of states required for a convention?

Glad you asked. How you do the math depends on the question you pose. If you want to pass a constitutional amendment legalizing pot based on a principle that grweed is good, then the math won’t work out. But suppose, instead, you crafted an amendment based on the different, more flexible principle that each state can do what it wants: recreational, medical, prohibited, or whatever—and the federal government can’t interfere. This might get more traction. There already is a supermajority for medical marijuana, and the big selling point is that a constitutional amendment in this vein protects both a state’s choice to legalize or prohibit marijuana. In other words, it is like Nancy Mace’s States Reform Act, but instead of trying to get the federal government to restrict its own powers, we’re asking the states to take some back.

Or maybe we dream bigger and take up Randy Barnett’s Commerce Clause amendment:

The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.

If you are one that believes, like I do, that the core “trauma” underlying the War on Drugs is its anti-federalism and the expansion of federal regulation and power to encompass local activities, this amendment basically solves it all in one fell swoop.³ And, while we’re calling for a convention, let’s add a bunch of other wildly popular shit, like term limits for members of Congress.

That’s the feature and bug of the Article V convention route. There are no rules. There has never been one. Anything is fair game. Existing constitutional rights can be rewritten. It is basically the nuclear option to the Constitution. And that’s why an Article V convention likely won’t happen soon—at least not in its unbridled form. (We may be closer than you think.)

What about a convention limited to a single amendment? Many scholars say that Article V does not authorize conventions limited to one issue. But others take a different view and say that states can call for a convention limited to a single issue or set of issues. Under this second view, the states could call for a limited convention on rescinding marijuana prohibition, without opening up to free-for-all amendments. Notably, the Supreme Court has never had occasion to interpreted the meaning of Article V in this regard.

One reason federal legislators and agencies aren’t doing enough with cannabis is because there still isn’t enough urgency and pressure with non-prosecution. Whatever view one takes, with marijuana legalization polling at all time highs, adding it to a constitutional convention movement might add urgency to the issue. Indeed, marijuana is quickly becoming the archetypal example of why a convention should be called—where the federal government isn’t doing enough to accommodate the states and will of the people.

1. I do agree with some sentiments expressed by Sabet in a follow up re-tweet. Legalization should more seriously consider the notion some people don’t want to be overwhelmed by smoke in public places like restaurants or parks. Marijuana doesn’t need to be sold on every street corner or convenience store. Impaired driving should be addressed. Employers should still be able to require drug tests. I’m not interested in policing morality, but if one favors legalization as a matter of individual liberty, privacy, and autonomy, then government should be able to reasonably regulate marijuana consumption so as not to impinge on the liberties of those who would rather not inhale dank weed at 10 AM.

2. At its core, the lawsuit seeks to overturn the fairly recent 2005 Supreme Court’s in Raich, in which the Court held that the Controlled Substances Act could constitutionally apply to prohibit two medical marijuana patients, Diane Monson and Angel Raich, from home growing medical marijuana. A complete explanation as to why this new lawsuit is unlikely to succeed takes more than a footnote to explain. It starts with the difference between facial and as-applied Commerce Clause challenges. In the former, a plaintiff challenges a statute or law as unconstitutional—always. In the latter, a plaintiff admits that a statute or law may sometimes be unconstitutional, just not as applied to that plaintiff or its conduct. The Supreme Court has deemed statutes facially unconstitutional as exceeding authority under the Commerce Clause, but it has never struck a statute down on those grounds as-applied. The current challenge is an as-applied Commerce Clause challenge (never succeeded), not a facial challenge (sometimes succeeds).

Other issues abound. It isn’t clear what relief these plaintiffs seek. The complaint seeks a declaration that “The CSA as Applied to Plaintiffs Exceeds Congress’s Authority Under the Commerce Clause and Necessary and Proper Clauses,” but omits what statutory sections the plaintiff seek as-applied carveouts from. The whole CSA? Really? Also, the CSA doesn’t apply “to Plaintiffs” but applies to “Plaintiffs intrastate activities.” It isn’t clear to me that an as-applied Commerce Clause exception avoids application of 280E. The text of 280E, a tax statute, doesn’t literally hinge on a CSA violation or enforcement. Rather, it applies when activity involves “trafficking” a Schedule I or II substance. A judgment that the CSA doesn’t apply to intrastate activities wouldn’t necessarily mean that intrastate trafficking is not trafficking in a controlled substance, and it wouldn’t undermine Congress’s ability to classify controlled substances—only enforce the CSA. The Prayer for Relief seems to recognize this to some degree and seeks a judgment that the Court should enjoin enforcement of the CSA “either alone or in conjunction with any other federal law such as the Bank Secrecy Act.” But whether and how the CSA is “enforced” in conjunction with other federal laws and those other federal laws present much a different constitutional calculus than a straightforward Commerce Clause challenge and overturning of Raich.

One potential outcome of this lawsuit is that never gets off the ground and gets tossed for lack of jurisdiction or non-ripeness. Unlike the case in Raich whether there was a genuine threat of prosecution, none of the plaintiffs in this case face any realistic threat of prosecution due to the non-prosecution policies and laws the complaint trumpets. Parties can’t just barge into court and lodge constitutional objections about statutes. Generally, to bring a pre-enforcement challenge, there must be a credible threat of prosecution. In Raich, circa 2007, the issue was straightforward: Raich was “faced with the threat that the Government will seize her medical marijuana and prosecute her for violations of federal drug law.” Because the Government doesn’t enforce marijuana laws in 2023, however, one cannot say the same thing today.

That isn’t to say the banking issues can’t be injuries, but there is a real issue here. And the precise details are important. For example, what, exactly, is the injury can’t be fear of prosecution, and that’s the main injury the CSA is capable of causing. If the complaint is about something else, such as 280E, then the lawsuit runs headfirst into the Taxing and Spending clause and the Obamacare case, where the the individual mandate survived on grounds that it was a valid exercise of the Taxing and Spending power. And if the plaintiffs aren’t complaining about prosecution or taxes, what are they complaining about?

Perhaps most inexplicably, the lawsuit includes Verano Holdings as a member of the plaintiff class. What better way to show that the intrastate Massachusetts cannabis operations really isn’t intrastate but is connected to interstate commerce by including a Canadian multi-state operator holding company plaintiff whose principal place of business is in Chicago that “operates regulated cannabis businesses through wholly-owned subsidiaries in Massachusetts and other states.” Total unforced error in my view.

3. Indeed, one issue I have with the MORE Act or bust crowd is that it is outcome based and fails to address this core issue underlying the War on Drugs and prohibition, instead using federal power in the other direction. Interestingly, measures like the States Reform Act or the Barnett Amendment are neither pro- nor anti-drug use; and yet, because they organize around a different principle—federalism—they go farther to address systemic issues.