The sudden passing of Supreme Court Justice Antonin Scalia on Feb. 13 has raised many questions about the future composition of the court. We don't know who will replace the Reagan appointee who served on the bench for nearly 30 years, or when it will happen. But we do know that whoever replaces him will have a profound effect on American society, given upcoming cases involving divisive subjects such as abortion, capital punishment and affirmative action.
But what does the empty seat on the supreme court bench mean for marijuana legalization? And what was Scalia's position on the subject? To find out, we spoke with Robert McVay, a business lawyer for Harris Moure who specializes in regulated substances. Here's what he had to say.
Scalia's cannabis legacy
Even though marijuana did not come before the court often during Scalia's tenure, "he was clearly against drug legalization," said McVay. And he says the former justice did leave his mark on the issue by setting a precedent that will likely stand for a while to come.
Generally speaking, Scalia was a defender the rights of states against "federal overreach" in issues such as gun control and environmental regulation. But he took a different stance in the case of Gonzalez v. Raich (2005), which sought an injunction preventing the DEA from interfering with California's medical marijuana laws.
The case stemmed from the DEA destroying plants grown by patients for personal, medicinal use. The patients argued that enforcing federal law violated the Commerce Clause and other provisions of the constitution.
The majority of justices disagreed. And Scalia wrote the opinion defending the federal government's right to interfere with California law.
"That case felt like Scalia putting his own distaste for drugs and beliefs that they should be illegal ahead of his own views on how the constitution should be followed," McVay told Civilized. "While Justice Scalia was a textualist who sought to limit Congressional regulatory power throughout his career, in Gonzalez v. Raich, he seemed to cede the intellectual ground on congressional power for the interest of those who wanted to maintain the illegality of drugs under federal law."
The outcome of the case means that growing cannabis for personal, medical use in a state where medical marijuana and home cultivation is legal can still be considered criminal activity. And McVay doesn't think this decision will be reversed in the near future. So the only thing protecting patients, dispensaries and others involved in medical marijuana programs is a legal rider that has to be renewed by Congress with each federal budget.
So the freedom as well as health of many patients is frequently in jeopardy.
Future cannabis cases for the Supreme Court
Gonzalez v. Raich was the last major cannabis case to come before the Supreme Court. And McVay doesn't think we'll see another anytime soon.
That said, there is potential for marijuana legalization to create a major showdown between the federal government and individual states. Legalization has essentially created a legal fault line in the country, and there could be an eruption if someone calls on the court to clarify whether legalization of marijuana for medical or recreational marijuana conflicts with federal law.
McVay says the federal government could sue Colorado, Washington or other legal states and overturn their cannabis laws by arguing that legalization has created a "positive conflict" between state and federal law.
A "positive conflict," McVay explained, occurs when state law contradicts federal law. It's also referred to as "preemption," which deals with legal jurisdiction. For instance, the federal government decides copyright law, so a state cannot change how long copyright lasts. Any attempt to do that would be immediately invalid due to preemption.
"But drugs are not in that arena," according to McVay. "The law is clear that both the state and federal government can regulate and do other things involving marijuana." And because of that gray area, there is potential for conflict.
McVay says the result of that conflict is unclear because both sides can make convincing points.
"The argument against preemption is that federal agents can still go into a state and enforce the law, so you could say that legalization isn't in conflict with federal law. Opponents would say that setting up a business and licensing regime makes it difficult to enforce federal law."
So the views of the justices would be crucial to resolving the case, which means Scalia's replacement could make a huge difference in deciding the issue. McVay added that if such a case had been brought to the court earlier, Scalia likely would've argued that the legal states did present a positive conflict, and legalization would be tossed out.
But will that showdown happen?
That's mainly up to who runs the government. According to McVay.
"The main group that could bring that case is the executive branch of the government itself, so the Department of Justice [for example] could bring a case against the states saying their law conflicts with federal law."
But McVay doesn't expect that to happen now or in the foreseeable future.
"The presidential candidate most likely to bring that case was Chris Christie. I don't think any of the remaining candidates, except maybe [Marco] Rubio, would be interested in pushing the court to go after legal states on their cannabis measures."
However, challenges might come from elsewhere. Individual citizens and states could try to get a hearing from the Supreme Court on the issue, but it's uncertain if the justices would grant them one.
"The real victim in a state conflict suit is the federal government itself," McVay explained. "So if the federal government doesn't bring that forward, the court might not hear it if it's brought forward by a state or individual."
Court could hear case against Colorado
We'll know more on that Feb. 19, when the Supreme Court will decide whether or not to hear an unprecedented lawsuit against Colorado. The plaintiffs are the states of Nebraska and Oklahoma, who allege that Colorado's legalization of recreational marijuana "has created a dangerous gap in the federal drug control system enacted by the United States Congress." They're arguing that marijuana grown and purchased legally in Colorado is supplying black markets in neighboring states, which makes it harder and more expensive for those states to enforce prohibition.
Meanwhile, the Obama administration doesn't want the case to be heard. Last December, Solicitor General Donald Verrilli Jr. urged the court to reject the lawsuit and respect Colorado's right to decide its own criminal laws. Scalia's decision to uphold federal law over state marijuana regulations could play a part in deciding the lawsuit's fate. But McVay thinks the court will put the matter aside for now."It's most likely that the court will agree with the solicitor general and send the case down to a district court. I doubt the supreme court will accept it right away."
So a showdown between federal and state legislators is unlikely this year. But it remains possible as long as the federal government avoids clarifying the legitimacy of state marijuana laws.