Congress can curtail state’s freedom regarding marijuana legalization
Although states are allowed to create their own laws regarding marijuana consumption, there is a chance that Congress would be permitted to withhold some of the federal funding that Cory Booker’s 2017 marijuana bill calls for if it determines that any state-created laws pose an issue regarding interstate travel (or another enumerated power).
In 2017, Cory Booker introduced a bill that would not only end federal marijuana prohibition by removing it from the list of controlled substances, but that would also provide monetary incentives for states to change their marijuana laws in favor of legalization, but it has not yet become law. Although marijuana is still illegal on a federal level, since 2014, Congress has prohibited the Department of Justice from preventing individual states from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” However, Congress is allowed to intervene if state laws affect the enumerated powers granted to it in the Constitution. If the bill ever passes, Congress would likely have the ability to withhold a percentage of such funds. This determination is based on the 1987 decision in South Dakota v. Dole, and the fact that H.R. 2843 calls for studying the impact of marijuana use on highway safety, similar to the issue raised in Dole.
Legalized adult-use marijuana would likely look a lot like alcohol regulation. States would be able to tax its sale, set age limits, create licensing requirements, quality controls, and put other regulatory restrictions in place. However, states that set their own age requirements for the purchase and use of marijuana might create a problem that invites Congressional intervention in the matter. The 1987 case, South Dakota v. Dole, had to do with withholding federal highway funds in relation to state drinking ages. One could argue that there are similarities between this case and the potential issues that might be raised if states do not make the marijuana consumption age 21.
In 1984, Congress created a statute stipulating that in order for states to continue receiving full federal funding for highways, their drinking age minimum had to be 21. In Dole, South Dakota argued that this was unconstitutional, but the Court held that “the statute’s indirect imposition of a minimum drinking age was a valid exercise of Congress’s spending power, reasonably calculated to advance the general welfare and national concern of safe interstate travel” because “differing drinking ages in the States created particular incentives for young persons to combine their desire to drink with their ability to drive, and that this interstate problem required a national solution.” The Court further reasoned that the percentage of withheld funds was relatively small and therefore not coercive to the point where “pressure turns into compulsion”; states would not be disproportionally impacted by the withheld funds.
This reasoning is the basis upon which the Court determined that Congress was permitted to pass and enforce the statute. Though it might be a stretch, but because adult-use marijuana legalization will inevitably affect and cross state boundaries (albeit illegally), Congress might have an interest in withholding funds for similar reasons.
Section 4 of H. R. 2843 states:
(a) Administrator of the National Highway Traffic Safety Administration…shall — (1) carry out a study of the impact of driving under the influence of tetrahydrocannabinol on highway safety; and (2) develop enhanced strategies and procedures to reliably determine the impairment of a driver under the influence of tetrahydrocannabinol.
(b) AUTHORIZATION OF APPROPRIATIONS — There is authorized to be appropriated to the Administrator to carry out this section $50,000,000 for each of fiscal years 2020 through 2024.
This section relates to the Dole decision in that by legalizing marijuana, Congress wants to first study the effects of driving under its influence. The statute directly references “highway safety”, therefore creating a connection between the legalization of marijuana and the State’s interest in promoting highway safety and “underage” drunk driving as discussed in Dole. Although this in no way insinuates that the adult-use age will be subject to Congressional intervention, it relates to a precedent set over thirty years ago.
The Court in Dole reasoned that the percentage of withheld funds was not coercive enough to force South Dakota to change their state drinking age, but Congress still had a right to withhold the funds if they did not because South Dakota would not be disproportionally impacted by the loss. In H.R. 2843, Congress was ready to designate a quarter of a billion dollars to research the effects of driving under the influence of marijuana. Although these funds would not really impact the states and their decisions regarding age minimums, $250 million is not a small chunk of change and demonstrates that the government has a serious interest in the safety aspects of legalization, just as they do with drinking and driving.
Therefore, because the government is willing to spend a quarter of a billion dollars studying marijuana’s impact on highway safety, it can be assumed that if results are similar to that of Dole’s — that younger age limits lead to more accidents and unsafe conditions — Congress would have the ability to withhold the incentives proposed in Booker’s bill, as interstate travel would likely be affected.
