The Necessary and Proper Clause in the Constitution is commonly used to justify unconstitutional federal authority, and William Baude at the University of Chicago Law School believes a stricter interpretation of the clause is in order – albeit the feds still get to decide the interpretation.

In his paper “State Regulation and the Necessary and Proper Clause,” he writes that the clause should be reexamined within the context of federal and state marijuana laws to give “state regulation…a bigger role in fixing the limits of federal constitutional power.”

The clause reads as follows:

The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Judging from Baude’s statement, it may sound like he is calling for the states to determine themselves if something is “necessary and proper,” but he is not. He also believes that Congress has some authority to not just prohibit marijuana, but regulate some aspects of in-state commerce of marijuana.

“It would simply hold,” he writes, “that the constitutionality of federal law under the Necessary and Proper Clause must be judged under the circumstances, and that those circumstances should importantly include a state’s own success at solving the problem Congress has the power to address.”

While states have been successfully so far in nullifying, in practice, federal restrictions on marijuana, Baude believes the current situation is not sustainable in the long run due to industries such as banking, which often provide financial backing for fledgling marijuana businesses, that are still regulated by other federal laws the feds still enforce.

Baude also blames much of this on Footnote 38 of the Supreme Court’s decision in Gonazles v. Raich, in which they claim that state law can never be relevant to the scope of Congress’ power under the Commerce Clause or the Necessary and Proper Clause.

Instead, this clause, he writes, should give the states a larger role in determining when federal drug laws are constitution.

“If a state legalizes and regulates a drug in a way that minimizes of the risk of spillovers into the interstate black market, the federal drug laws should be forbidden to apply within that state,” he writes. “This both creates a more stable set of incentives for states to responsibly manage local behavior and provides a more satisfactory formal grounding for the executive no enforcement policy.”

Baude gets into some trouble when he points out that the federal government is restricted to only their enumerated powers, but then claims the Constitution “probably gives” the feds the authority to prohibit marijuana, though there are “limitations.”

He ultimately rests his argument on whether or non-enforcement of federal marijuana laws in states where they are enforcing their own laws is “necessary.” Because Congress has no authority within the Commerce Clause to regulate marijuana within a state, it relies on the Necessary and Proper Clause instead, claiming “potential spillovers” from in-state market to the interstate market.

So who gets to determine if it’s “necessary”?

Baude offers two choices. One is by having the courts determine whether or not state that have legalized marijuana are able to effectively regulate its use to the point where it is not providing spillover into the black market, and in effect challenging the feds ability to regulate interstate commerce.

The other way is by having the president issue an executive order declaring marijuana laws are unconstitutional as applied to lawful in-state marijuana where it is legal. “Rather than making specific judgments about which states’ regimes are permissible,” Baude writes,” the administration could release a list of criteria relevant to both current and prospective regimes.” For example, a state prevents its marijuana from entering interstate commerce would qualify for exemption from federal marijuana laws.

This, Baude believes, would give states an incentive to pass better laws and enforce them more effectively. It would also get rid of the practice by the feds of enforcing federal marijuana laws arbitrarily and remove much legal uncertainty that continues to effect marijuana businesses.

While Baude’s solution is theoretically possible and admittedly creative, it requires the feds to voluntarily surrender a portion of their authority to the states. He articulates this in the abstract for the paper, writing “If a state legalizes and regulates a drug in a way that minimizes the risk of spillovers into the interstate black market, the federal drug laws should be forbidden to apply within that state.”

The “if” means it has to be determined. And the feds are the ones, he believes, that should make the determination.

Judging by their past and current actions, it’s hard to imagine the current administration or the federal courts doing this.

It is important to remember that no branch of the federal government has ever admitted a lack of constitutional authority to pass or enforce federal drug laws, including marijuana.

Instead, they stopped enforcing the laws for practical reasons after states passed laws authorizing people to do what the federal government prohibited. In other words, when the states took it upon themselves to expand liberty, this kepts the feds closer to their constitutional limits.

The courts have already shown they aren’t going to leave any of this to the states, and the president is content deciding when he will or won’t enforce laws.

Nevertheless, Baude accurately observes the problems created by state marijuana laws when it comes to banking and other legal services that are still regulated by federal law. The only way to resolve this is by having the states to find ways to effectively nullify those laws and regulations as well, and make it impossible for the feds to enforce them in any manner whatsoever.

When it comes to the Necessary and Proper Clause (or any part of the Constitution, for that mater) if the feds aren’t delegated the authority, it’s not necessary, and the”rightful remedy” is for the states to act in ways that will stop its implementation.

It’s what Thomas Jefferson and James Madison advocated back in 1798. Not surprisingly, it’s the one that works.

The 10th Amendment

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