Republicans sure do love their “war on drugs.” During the Obama administration, Senator Ted Cruz (R- TX) chided the president for failing to enforce federal drug laws, even though his administration spent more on marijuana enforcement in just his first term than Bush and Clinton combined. Now that Donald Trump is president, Attorney General Jeff Sessions has pledged to renew the national war on drugs and target marijuana.

But according to the Constitution, does any administration have the authority wage a “war on drugs?” Can the federal government, in conformance to the Constitution, prohibit the production, distribution and use of marijuana? If so, do the federal laws trump those of the states? If not, is there a means by which they can be made to supersede state regulations that may be in conflict with federal law?

21 United States Code section 811 sets forth provisions of the Controlled Substances Act (CSA). The Drug Enforcement Agency’s website places controlled substances regulated under federal law into five categories, called “schedules.” Pursuant to federal law, marijuana is considered a Schedule One drug, in a class with substances such as cocaine, heroin and LSD. In determining which category a particular substance falls, the code requires certain factors be considered. By classifying marijuana as a Schedule One drug, the federal government has concluded marijuana 1) has a high potential for abuse 2) has NO accepted medical benefit 3) cannot be considered safe.

Article VI, Clause 2 of the Constitution contains the Supremacy Clause, which reads as follows:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” (Emphasis added)

So, according to the Supremacy Clause, federal marijuana laws must be made in pursuance to the Constitution – meaning, the States must have delegated the power to regulate this plant. A perusal of Article I, section 8 (powers delegated to Congress) indicates the States delegated no such power to the general government. Accordingly, the Tenth Amendment thus becomes operative:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Presently, states have regulations acknowledging various freedoms regarding marijuana use, ranging from regulated use for medical purposes, to allowing for regulated (meaning taxed) recreational use, to decriminalizing the possession of small amounts of the plant.

So, we currently are faced with two issues: first, states are ignoring federal law, and second, there is an inconsistency in laws among the several states. This raises the inquiry as to how to approach this situation. Must there be one national approach