marijuana legalization in the northwest project

8/11/2019 Marijuana Legalization in the Northwest Project

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I. Introduction

Since the 1990s, states have legalized marijuanain contradiction with federal lawin

various manners at an unprecedented pace.1A recent shift in the public perception of marijuana

from the hardline conservative stance of the early to mid-1900s to a stance that perceives less

harm relative to other legal substances caused this relatively recent change in state policy.2

Thispopular opinion transcends party lines making it a contemporary anomaly in our hyper-

adversarial political climate.3Despite this, there are more powerful forces behind public policy,

namely executive and congressional authority, than opinion polls.

The foundation of our government consists of a structure that emphasizes struggle,

whether that is struggle between the federal and state government,4struggle between the

different political branches,5or even the struggle between the concepts of a living constitution

and constitutional restoration.6The important struggle in the marijuana-legalization realm is one

between the states and the federal governments embodied by the two following conflicting, yet

equally potent, truisms of our nation: It is one of the happy incidents of the federal system that a

single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and

economic experiments without risk to the rest of the country7and [t]his Constitution, and the

Laws 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.8In a case like that of the current marijuana legalization at the state level, a

substance that has historically been illegal at both the federal and state level, these two principles

are inevitably in conflict.

This comment focuses on President Barack Obamasinvolvement in the state legalization

of marijuana, particularly his flexible approach to the enforcement of the federal Controlled

Substances Act. I come to the conclusion that President Obamas refusal toenforce the law inthose states where marijuana is legal to some extent is a violation of the Presidents

constitutional duty to take care that the laws be faithfully executed.9If federal marijuana

legalization is to occur in this country, it is, first and foremost, the responsibility of the people to

petition their federal legislature, and the responsibility of the legislature to respond to that

1See infra Part II.B.2William A. Galston & E.J. Dionne, Jr., The New Politics of Marijuana Legalization: Why Opinion is Changing,BROOKINGS (May 29, 2013), http://www.brookings.edu/research/papers/2013/05/29-politics-marijuana-legalization-galston-dionne.3Id.4

For a more in-depth explanation of our dual federalism system, see John Minor Wisdom, Foreword: The Ever-Wheeling Wheels of American Federalism, 59 NOTRE DAME L.REV.1063(1984).5For an in-depth explanation of the separation of powers, see Jack M. Beermann,An Inductive Understanding ofSeparation of Powers, 63 ADMIN.L.REV. 467 (2011);see generallyMorrison v. Olson, 487 U.S. 654, 697 (1988)(Scalia, A., dissenting).6For a discussion on the concepts of originalism and that of a living constitution, namely regarding their ability toco-exist, see Jack M. Balkin,Framework Originalism and the Living Constitution, 103NW.U.L.REV.549 (2009).7New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, L., dissenting).8U.S. CONST. art. VI, cl. 2 (the supremacy clause) (emphasis added).9U.S. CONST. art. II, 3 (the take care clause).


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demand by removing marijuana from the list of controlled substances listed in the Controlled

Substances Act. Alternatively, Congress authorized the president to transfer between schedules,

or even completely remove, marijuana subject to rulemaking procedures.10There are several

procedures that must be followed if marijuana is to legitimately become legal at the federal level.

An executive decision to refuse to enforce the law for strictly policy reasons is not a legitimate

path.

In Part II, I give a history of marijuana criminalization in the United States. I place a

special emphasis on both the intricacies of the federal law and the recent successful legalization

efforts in the Northwest United States.

In Part III, I lay out the legal status of marijuana in Idaho. I include the opinions of recent

legislatures, the governor, the judiciary, and the public of Idaho. I also speak to regions in Idaho

that are particularly vulnerable to the side effects caused by legalization of marijuana in nearby

states. These vulnerabilities lead to costs for Idaho which segues into Idahos issue of standing in

court.

Part VI necessarily discusses Idahos requirement of standing if they were to challengethe non-enforcement of the Controlled Substances Act. I find that the damage caused to Idaho as

a direct consequence of the combination of 1) marijuana legalization in the surrounding states,

and 2) the non-enforcement of the Controlled Substances Act by President Obama make a good

case for standing in court. Although standing is not the primary inquiry in this paper, for obvious

reasons11a brief discussion must occur.

Part V, the natural culmination of this article, explores the contours of the take care

clause.I explore when a President may refuse to enforce a law, for what reasons a president

may refuse to enforce a law, to what extent they may refuse to enforce law, and the methods

generally used to refuse to enforce law. I also explore how the disparate enforcement of the CSA

among the states effects this analysis. Ultimately I conclude that President Obamas methods andreasons for refusing to enforce the Controlled Substance Act as applied to marijuana in the states

that 1) have legalized marijuana to some extent, and 2) have a regulatory mechanism for that

legalization, goes beyond his power to refuse to enforce congressional statutes. I also explore

policy reasons that Idaho, or other states in a similar position, would decide to take the time and

money that a suit against the federal government would cost.

In Part VI, I conclude by arguing that if marijuana legalization is to happen, and if we areto allow the states that have legalized marijuana to persist in their efforts, it is the responsibilityof the legislature to respond to the cry of their constituents, or it is the presidents responsibilityto direct the Attorney General to undergo the rulemaking procedures required to remove

marijuana from the Controlled Substances Act schedule list. If the president believes that

1021 U.S.C.A. 811(a) (2013); Gonzales v. Raich, 545 U.S. 1, 33 (2005) (Supreme Court stating that there are bothexecutive procedures and the democratic process are available to reclassify marijuana under the Controlled

Substances Act).11Idaho would not be able to even bring a suit if it did not have standing. Massachusetts v. EPA, 549 U.S. 497, 516(2007) (explaining the constitutional limit on federal judicial standing imposed by the cases and controversies

clause).


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prosecution against marijuana-users, -possessors, or -dealers should not be a federal priority,executive overreach is an inappropriate answer.

II. State of Marijuana Criminalization

A.

Traditional Federal Marijuana Prohibition

12

Generally, prohibition of marijuana in the United States began in the early twentieth century.13

The Marihuana Tax Act of 1937 (MTA) initiated our history of federal marijuana probation by

creating an unpayable federal tax for the possession of marijuana.14Almost thirty years after the

passage of the MTA, the United States Supreme Court ruled the tax abhorrent to the Fifth

Amendment because the unpayable tax required self-incrimination.15In response to the Supreme

CourtsLeary ruling, Congress passed the Controlled Substances Act (CSA).16The CSA makes

it a federal crime to, without special authorization, manufacture, distribute, or dispense, or

possess, with intent to manufacture, distribute, or dispenseor even possess any controlled

substance.17Penalties vary depending on the schedule of the drug.18Schedules rage from

Schedule I, a drug that has 1) a high potential for abuse, 2) has no medically accepted use, and 3)

is unsafe to use even with medical supervision, to Schedule V, a drug that has 1) a low potential

for abuse, 2) medically accepted use, and 3) use leads to little to no chance of physical or

psychological dependence.19The CSA classifies marijuana as a Schedule I drug, thus implicating

the harshest penalties of the CSA.20If the Attorney General finds that the drug is not in the

proper schedule, he can initiate a rulemaking procedure that would either move the drug to a

proper schedule, or that would remove the drug entirely.21The Supreme Court upheld the CSA

in regards to regulating marijuana as a legitimate use of Congresss interstate commerce power.22

B.

In the StatesThe states commonly criminalized marijuana until 1996, when California passed an initiative

that allowed possession and sale of marijuana for medicinal purposes.23Although many states

have since adopted similar statutes that allow possession, sale, and use of marijuana for medical

12For a short history from 19062005 on federal marijuana prohibition, from the perspective of the 2005 U.S.Supreme Court,see Gonzales v. Raich, 545 U.S. 1, 1015 (2005).13Troy E. Grandel, One Toke Over the Line: The Proliferation of State Medical Marijuana Laws, 9 U.N.H.L.REV.135, 135136 (2010).14Marijuana Tax Act of 1937, Pub. 238, 75th Congress, 50 Stat. 551 (Aug. 2 1937) (held unconstitutional by Learyv. U.S., 395 U.S. 6 (1969)).15

Leary v. U.S., 395 U.S. 6 (1969).16Controlled Substances Act, 21 U.S.C. 811844 (2013).17Controlled Substances Act, 21 U.S.C. 841(a)(1), 844(a) (2013).18Controlled Substances Act, 21 U.S.C. 812(b) (2013)19Id.20Controlled Substances Act, 21 U.S.C. 812 Schedule I (c)(10) (2013)21Controlled Substances Act, 21 U.S.C. 811 (2013).22Gonzales v. Raich, 545 U.S. 1, 9 (2005); U.S. Const. art. I 8, cl. 3 (the commerce clause).23Troy E. Grandel, One Toke Over the Line: The Proliferation of State Medical Marijuana Laws, 9 U. N.H. L. Rev.135, 136 (2010)


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purposes or otherwise,24I only discuss states in the western United States that have more of a

direct impact on Idaho with a special emphasis on border states. The states I will discuss are

Washington, Oregon, Montana, Nevada, California, and Colorado.

Washington citizens voted on and passed an initiative, which both de-criminalizes

marijuana and allows the state government to create regulations on how marijuana is taxed.25

The initiative passed partially due to the high demand for marijuana in the state and the potential

tax revenue that could be had from taxing the product.26The state liquor control board is

responsible for creating regulations and a tax for the sale of marijuana.27The Washington State

Liquor Control Board planned to begin distributing licenses for sellers starting December 2013

with a goal for marijuana to be recreationally available for sale by January 2014.28

Since 1998, under the Oregon Medical Marijuana Act (OMMA), marijuana has been

legal for medical purposes in Oregon, which also shares a long border with Idaho.29Recently

OMMA has been held unconstitutional by the Oregon Supreme Court, although Oregon

continues to allow its citizens to use medical marijuana so long as they are compliant with

OMMA.

30

Oregon citizens voted on a citizen initiative that would legalize marijuana forrecreational purposes, The Oregon Cannabis Tax Act, on the Oregon ballot in 2012.31The

initiative failed (44.2% in favor, 55.8% against).32However, there are plans to bring a similar

measure to ballot in 2014.33

24For a holistic snapshot of state marijuana legislationsee State Info, NORML, Norml.org/states (last visited Mar. 9,2014).252013 Wash. Legis. Serv. Ch. 3 (I.M. 502) (West), available athttp://www.leg.wa.gov/CodeReviser/documents/INITIATIVE502.SL.pdf; WASHINGTON SECRETARY OF STATE,

November 6, 2012 General Election Results: Initiative Measure 502 Concerns Marijuana(last updated Nov. 27,2012, 4:55 PM), http://vote.wa.gov/results/20121106/initiative-measure-no-502-concerns-marijuana.html.26BEAU KILMER ET AL.,BEFORE THE GRAND OPENING:MEASURING WASHINGTON STATES MARIJUANA MARKET INTHE LAST YEAR BEFORE LEGALIZED COMMERCIAL SALE BEGINS, xii (2013), available athttp://www.rand.org/content/dam/rand/pubs/research_reports/RR400/RR466/RAND_RR466.pdf (estimatingWashingtons marijuana consumption to be approximately 120175 metric tons, well above the previous estimate ofeighty metric tons).272013 Wash. Legis. Serv. Ch. 3, Part I 1 (I.M. 502) (West), available athttp://www.leg.wa.gov/CodeReviser/documents/INITIATIVE502.SL.pdf.28WASHINGTON STATE LIQUOR CONTROL BOARD,I-502IMPLEMENTATION TIMELINE (2013),available athttp://www.liq.wa.gov/publications/Marijuana/I-502/I-502_Official_Timeline_IV_4-16-13.pdf29Oregon Medical Marijuana Act, O.R.S. 475.300475.346 (1998) (held to be preempted by the federalControlled Substances Act by the Oregon Supreme Court inEmerald Steel Fabricators, Inc. v. Bureau of Labor and

Industries, 230 P.3d 518 (Or. 2010))30OREGON HEALTH AUTHORITY,Oregon Medical Marijuana Program Statistics(last updated Jan. 1, 2014),http://public.health.oregon.gov/DiseasesConditions/ChronicDisease/MedicalMarijuanaProgram/Pages/data.aspx;Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518 (Or. 2010).31Jennifer Alexander,Although Measure 80 Failed, Marijuana has Won Even in Oregon, THE EXAMINER(Nov. 7,2012), http://www.examiner.com/article/although-measure-80-failed-marijuana-has-won-even-oregon.32Id.33Jeff Mapes, With National Backing, Marijuana Advocates File Legalization Measure, THE OREGONIAN (lastupdated Nov. 21, 2013, 1:02 PM),http://www.oregonlive.com/mapes/index.ssf/2013/10/with_national_backing_marijuan.html.


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Montanas legislature also made marijuana legal for medical purposes in 2007.34

However, since the medical marijuana bill passed, there has been some push back by the

legislature and governor. In 2007, the legislature repealed the original medical marijuana law and

replaced it with a statute that applies more stringent regulations to the medical use of marijuana,

especially in regards to who can be considered a caregiver.35So, although there is regulation

over medical marijuana in Montana stricter relative to other northwestern states, it is still legal to

possess and consume for certain purposes.

The Nevada legislature legalized medical marijuana in 2013.36It also decriminalized

marijuana in the state, meaning no prison time or criminal record for first-time possession of a

small amount for personal consumption.37

California does not share a border with Idaho, but it exerts great influence in the western

United States and experts estimate that in 2010 more marijuana was cultivated in California than

either Mexico or any other state.38In California, possession of marijuana up to 28.5 oz. is

decriminalized.39Also, California legalized marijuana for medical purposes in 1996.40Citizens

will vote on an initiative to legalize recreational purposes in 2014; this following a similar,unsuccessful 2010 citizen initiative.41

Finally, Colorado, like Washington, passed a citizen initiative in 2012 to add a state

constitutional amendment legalizing marijuana for recreational consumption.42The organization

Campaign to Regulate Marijuana like Alcoholheaded this initiative.43The amendment alters

Colorado Constitutional Article XVIII by adding 16, which legalizes the sale of marijuana from

dispensaries to the general adult public in a similar manner to the way alcohol is sold.44

Recreational marijuana has been available for sale to the general public since January 1, 2014.45

Colorado is expecting upwards of $70 million dollars in tax revenue from the sale of legal

marijuana per year.46

34Mont. Medical Marijuana Act, Mont. Code Ann. 50-46-1 to 50-46-2 (2007)35Montana Senate Bill 423 (2011), available at http://leg.mt.gov/bills/2011/billpdf/SB0423.pdf.36Medical Use of Marijuana, N.R.S. 453A (amended by 2013 Nevada Laws ch. 547 (S.B. 374)).37States that Have Decriminalized, NORML(last visited Jan. 2, 2014), http://norml.org/aboutmarijuana/item/states-that-have-decriminalized;Nevada Laws and Penalties, NORML, http://norml.org/laws/item/nevada-penalties-2 (lastvisited Mar. 9, 2014).38CENTRAL VALLEY CALIFORNIA HIDTA,Marijuana Production in California, 25 (June 4, 2010),http://www.slocounty.ca.gov/Assets/DAS/DAAB/Marijuana_Production_in_California.pdf.39Cal. Health & Safety Code. 11357 (West).40Compassionate Use Act of 1996, Wests Ann. Cal. Health &Safety Code 11362.5 (1996) (held to be preemptedby federal law in U.S. v. Landa, 281 F. Supp. 2d 1139 (N.D. Cal. 2003)41

Dennis Romero,Marijuana Legalization in California Races Toward Ballot, LA Weekly (Feb. 6, 2014, 7:05AM), http://www.laweekly.com/informer/2014/02/06/marijuana-legalization-in-california-races-toward-ballot.42COLO.CONST. art. XVIII, 16 (2012).43CAMPAIGN TO REGULATE MARIJUANA LIKE ALCOHOL, http://www.regulatemarijuana.org(last visited Mar. 9,2014), https://www.change.org/organizations/crmla.44COLO.CONST. art. XVIII, 16 (2012).45Michael Martinez, Colorados Recreational Marijuana Stores Make History , CNN (last updated Jan. 1, 2014,8:47 PM EST), http://www.cnn.com/2013/12/31/us/colorado-recreational-marijuana.46Alvin L. Arnold,Much Green for Legal Weed, 46 No. 24MORTGAGE AND REAL ESTATE EXECUTIVES REPORT2(2014).


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The background feels complete, as if it is the beginning of the butting of heads between

state governments, which fulfill the role of laboratories of public policy,51and the federal

executive office, which has an obligation to enforce the laws passed by Congress.52Instead, the

executive office has acquiesced to the states marijuana laws. Although the administration is no

stranger to federal marijuana crackdowns,53beginning in 2009, under the guidance of recently

elected President Barack Obama and recently appointed Attorney General Eric Holder, federally

appointed U.S. attorneys received memorandum regarding the administrations approach to the

trend of state marijuana legalization.54These memos build off of each other, and provide

guidance to U.S. attorneys regarding the legality of marijuana in their jurisdiction and how to

approach prosecution.55Although the first two memos vaguely expand and contract how

liberally the administration will approach federal marijuana prosecutions, the third memo makes

clear that the administration will not prosecute for marijuana crimes in cases in which the person

is not in violation of their own state law.56

The memos consistently state the federal governments commitment to the enforcement

of the CSA, but continue to list out priorities and exceptions to their general rule. The 2009memo states that medical marijuana patients and their suppliers (caregivers) are not a priority for

prosecution under the CSA.57Instead, the Attorney General suggests a limitation to prosecution

of violations of the CSA in regards to marijuana in limited cases, including unlawful possession

or unlawful use of firearms, incidents that involve violence, sales to minors, sales inconsistent

with the spirit of the state law, sales of other controlled substances, or connections with

organized crime.58

The 2011 memo expands on the 2009 memo by clarifying that U.S. Attorneys should

continue to target commercial marijuana grow operations and commercial marijuana shops for

prosecution.59More raids on shops followed the 2011 memo, which raised uncertainty, among

both pro- and anti-marijuana advocates, as to the stance of the current administration on medicalmarijuana.60

51New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Justice Brandeis dissenting).52U.S.CONST. art II, 3 (the take care clause).53SeeMatt Volz,Montanas Medical Marijuana Industry Goes Down, BUSINESS INSIDER (May 12, 2013),http://www.businessinsider.com/montana-medical-marijuana-federal-crackdown-2013-5.54Memorandum for Selected United States Attorneys, Investigations and Prosecutions in States Authorizing theMedical Use of Marijuana (Oct. 19, 2009), available athttp://www.justice.gov/opa/documents/medical-marijuana.pdf [hereinafter 2009 memo]; Memorandum for United States Attorneys, Guidance Regarding the OgdenMemo in Jurisdictions Seeking to Authorize Marijuana for Medical Use (June 29, 2011), available athttp://www.justice.gov/oip/docs/dag-guidance-2011-for-medical-marijuana-use.pdf [hereinafter 2011 memo];

Memorandum from the Deputy Attorney General to All United States Attorneys, Guidance Regarding MarijuanaEnforcement (Aug. 29, 2013), available athttp://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf[hereinafter 2013 memo].55See id.56See 2013 memo,supra note 54.572009 memo,supra note 54.582009 memo,supranote 54, at 2.592011 memo,supra note 54.60FOXNEWS.COM,Feds under Obama Appear Tougher on Medical Marijuana, Disappointing Voters(Apr. 27,2012), http://www.foxnews.com/politics/2012/04/26/obama-still-unclear-on-medical-marijuana/.


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The 2013 memo, distributed the same year that Washington and Colorado were in the

midst of their legalization ventures, clarified much of the confusion by placing an emphasis on

non-prosecution in states that have a comprehensive regulation scheme that accompanies their

marijuana legalization.61It also created a new list of priorities that loosens up on the 2009

priorities and places an emphasis on keeping marijuana isolated to the states that have legalized

it to some extent.62Pro-marijuana advocates lauded the memo considering it an announcement of

a hands-off approach by the federal government.63Attorney General Holder met with the

Governors of Washington and Colorado to personally let them know how to best comply with

the federal governments leniencyas laid out in the 2013 memo and how to go through the

process of legalization in their respective states smoothly.64This also puts the states in a strange

place, as they are not discouraged from implementing their state marijuana programs, but are

aware that federal intervention in the process could occur at any moment.65In conjunction with

the 2013 memo, the Department of Justices Department of Public Affairs released a statement

that emphasizes limiting the use of the federal governments enforcement mechanism to isolate

the availability of marijuana to the states that have legalized it.

66

Today, the federal governments approach to marijuana legalization is still in limbo. The

idea behind the 2013 memo is that if a state legalizes marijuana along with an effective

regulation scheme then the federal government will not prosecute individuals that are in

compliance with the state law.67The administration is expecting the states that have legalized

marijuana to establish strict regulatory schemes effective at mitigating the issues mentioned in

the 2013 memo.68The administration insists that if these standards are not met, the Department

of Justice will challenge the states schemes and prosecute at the individual level.69However, the

administrations increasingly soft language on the matter70leads to the conclusion this may be a

statement with all bark and no bite. Although marijuana advocates perceive this policy shift as a

612013 memo,supra note 54.622013 memo,supra note 54, at 12.63Kevin Johnson & Raju Chebium,Justice Dept Wont Challenge State Marijuana Laws, USATODAY(Aug. 29,2013, 6:29 PM EDT), http://www.usatoday.com/story/news/nation/2013/08/29/justice-medical-marijuana-laws/2727605/.64Id.65WASHINGTON STATE LIQUOR CONTROL BOARD,Faqs on I-502, http://lcb.wa.gov/marijuana/faqs_i-502 (lastvisited Mar. 9, 2014) (questions and answers regarding federal preemption of I-502 under the federal governmentsection).66DEPARTMENT OF JUSTICE OFFICE OF PUBLIC AFFAIRS,Justice Department Announces Update to MarijuanaEnforcement Policy(Aug. 29, 2013), available athttp://www.justice.gov/opa/pr/2013/August/13-opa-974.html.672013 memo,supra note 54.68

Id.69Id.70Compare2011 memo,supranote 54 (stating that commercial operations cultivating, selling or distributingmarijuana are not the DOJs priority) with2013 memo,supra note 54 (The Department of Justice is . . .committed to using its limited investigative and prosecutorial resources to address the most significant threats in themost effective, consistent, and rational way.)and DEPARTMENT OF JUSTICE OFFICE OF PUBLIC AFFAIRS,JusticeDepartment Announces Update to Marijuana Enforcement Policy(Aug. 29, 2013), available athttp://www.justice.gov/opa/pr/2013/August/13-opa-974.html ([T]he federal government has traditionally relied onstate and local authorities to address marijuana activity through enforcement of their own narcotics laws.Essentially taking a hands-off approach.).


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major victory, the entire scheme could be reversed with the stroke of a pen.71One group of

congressman, possibly in recognition of the takecare clauseproblems associated with this

issue, urged the President to transfer marijuana between schedules.72

The status of marijuana legalization/criminalization throughout the Northwest U.S. and

the federal government is currently in flux. Although federal law declares marijuana illegal, the

current administration has removed all bite from the CSA in those states that have legalized it for

some purposes. Many states have legalized to some extent and some have decriminalized. These

legalization efforts, which are in contradiction with federal law, bring up issues regarding the

balance between federal and states rights to govern, as well as how much power the federal

executive branch has to negate law duly passed by Congress.

III. Marijuana Criminalization in Idaho

Currently, in Idaho marijuana is illegal for any reason.73The stated opinions of all three branches

of the Idaho government, along with Idahos hyper-cumbersome citizen initiative process, do

away with the possibility of any marijuana legalization or de-criminalization in the near future.This red state refuses to rhapsodically accompany its bordering neighbors in the trend of

marijuana legalization.

A. Efforts to legalize and Senate Concurrent Resolution 112

In 2011 and 2012, Republican State Representative Tom Trail brought two medical marijuana

bills before the Idaho legislature; the legislature defeated each bill.74The bill, if passed, would

have been one of the strictest state medical marijuana laws, allowing medical marijuana only for

a short list of debilitating diseases, and no patient would be allowed to grow their own plants.75

Since Representative Trail decided to not run for reelection in 2012, no other Idaho legislativemember brought a similar bill since.76

Similarly to Washington and Colorado, Idaho citizens could bring forward a ballot

initiative to legalize marijuana for recreational or medical purposes. The Idaho State Constitution

allows citizens to bring forward initiatives if they meet certain requirements.77The Idaho

71Brady Dennis, Obama Administration will not Block State Marijuana Laws, if Distribution is Regulated, THEWASHINGTON POST (Aug. 29, 2013), http://www.washingtonpost.com/national/health-science/obama-administration-will-not-preempt-state-marijuana-laws--for-now/2013/08/29/b725bfd8-10bd-11e3-8cdd-bcdc09410972_story.html.72Letter from Earl Blumenauer et al, a group of congressman, to Barack Obama, President of the United States (Feb.

12, 2014), available at http://blumenauer.house.gov/images/stories/2014/02-12-14%20Blumenauer%20Rescheduling%20Letter.pdf.73Idaho Code ann. 37-2705(d)(23), 37-2732, 37-2372B, 37-2734B.74MARIJUANA POLICY PROJECT,Idaho(last updated November 18, 2013), http://www.mpp.org/states/idaho/.75House Bill 19, 61st leg., 1st sess. (2011), available athttp://www.legislature.idaho.gov/legislation/2011/H0019.pdf.76Dustin Hurst,Days Before Filing Begins, Several Candidates Declare their Intentions, IDAHOREPORTER.COM(Feb. 24, 2012), http://www.idahoreporter.com/2012/days-before-filing-begins-several-candidates-declare-their-intentions/.77Idaho State Constitution art. III, 1, cl. 3.


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Constitution does not provide the procedure for bringing a citizen initiative, nor does it state the

required signatures needed to put a citizen initiative on the ballot. 78Because of this, the

legislature creates its own standards, via statute, for placing an initiative on the ballot; although

the standard used to be 6% of all registered Idaho voters, in 2013, Idaho Senate Bill 1108

amended the standard to require 6% of registered Idaho voters with the additional requirement

that 18 of Idahos 35 legislative districts must each meet the 6% requirement in their districts.79

Compare this to Washingtons requirement that the registered voter signatures on the petition

exceed 8% of the number of total votes cast in the last gubernational race80and Colorados

requirement that the total signatures meet or exceed 5% of the total votes cast for the Colorado

secretary of state in the last election.81

Representative Trail publicly stated that a major reason for his decision to bring a bill to

the legislature is his opinion that the initiative process in Idaho would cost half a million to a

million dollars to organize.82He made this statement even before the Idaho legislature passed

Senate Bill 1108. As of 2014, in the face of the challenges associated with qualifying a bill for

the ballot, the group Compassionate Idaho is attempting to put together an initiative to be placedon the November 2014 ballot.83The impracticality of the Idaho citizen initiative process and the

lack of measurable progress by Compassionate Idaho in putting an initiative on the ballot both

lead to the conclusion that an initiative to make marijuana legal in Idaho for any reason is not

foreseeable in the near future. However, if placed on the ballot, at least one study conducted by

the Boise State University suggests a hypothetical initiative could pass with a majority.84

Simply because there are no current, viable legalization efforts does not mean the

legislature stands by quietly. In 2013, the Idaho legislature passed a Senate Concurrent

Resolution making clear their disdain for the possibility of any legalization efforts within the

state.85The resolution passed by an overwhelming 29-5-1 vote in the Senate and a 63-7-0 vote in

the House.86The resolution first states that the legislature disapproves of the legalization ofmarijuana in Idaho for any reason.87The resolution then lists out several reasons why marijuana

is detrimental to the state including negative impact on public health and safety, the

detrimental effect on individual learning and brain development, and that drug legalization

78Id.79S. Bill 1108, 62d Leg., 1st Sess. (2013), available athttp://www.legislature.idaho.gov/legislation/2013/S1108.pdf;Betsy Z. Russell,Idaho Governor Signs Bill Tightening Initiative Rules, The SPOKESMAN-REVIEW (April 3, 2013),http://www.spokesman.com/stories/2013/apr/03/idaho-governor-signs-bill-tightening-initiative/.80Wash RCW 29A.72.150 (setting the statutory required number of signatures to qualify for the ballot); WASH.CONST. art. II, 1 (creating a citizen initiative process).81

Colo. Const. art. IV, 1, cl. 2.82Greg Meyer, Tom Trail makes his Case for Medical Marijuana, KLEWTV.COM (Apr. 19, 2010, 9:06 PM PST),http://www.klewtv.com/news/91561549.html83COMPASSIONATE IDAHO, www.compassionateidaho.org (last visited Mar. 9, 2014).84Betsy Z. Russell, Three-quarters of Idahoans Back Medical Marijuana, THE SPOKESMAN-REVIEW(Feb. 8, 2011)http://www.spokesman.com/stories/2011/feb/08/three-quarters-idahoans-back-medical-marijuana/.85S. Res. 112, 62d Leg., 1st Sess. (2013), available athttp://legislature.idaho.gov/legislation/2013/SCR112.pdf[hereinafter Senate Resolution 112].86Bill History of Senate Concurrent Resolution 112, STATE OF IDAHO LEGISLATURE (last visited Jan. 3, 2014).87

Senate Resolution 112, supra note 85.


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efforts in other states have led to social, economic, and legal chaos.88Relevant to the issue

raised in this comment, the resolution states that legalization/decriminalization in the

surrounding states have adversely impacted Idaho through cultural acceptance of drug use.89

The aforementioned bill restricting the standards required to qualify an initiative for the ballot in

Idaho was passed during the same session that Senate Concurrent Resolution No. 112 was

passed. It would not be a stretch of the imagination to conclude the citizen initiatives in nearby

states that have successfully legalized marijuana, at a minimum, provided incentive to the Idaho

legislature to place further restrictions on the citizen initiative process.

The legislatures expression of distaste for marijuana in the state acts essentially with all

bark and no bite. The effect of this resolution compares to that of a federal sense of Congress

resolution, which is merely an expression of opinion of the Congress.90Although there are

several issues outlined in the resolution, little to no legal consequence follows. However, Senate

Concurrent Resolution 112 indicates how the legislature would likely vote if a bill to legalize

marijuana in Idaho was presented.

B.

The Idaho Executive and Judiciary Branch

The legislatures sister branches of government support them, in their respective roles, in

their opposition to marijuana legalization in the state. The current governor has stated publicly

that marijuana legalization to any extent would be bad for the state, and the Idaho Supreme Court

consistently rejects state and federal constitutional arguments.

Governor C.L. Butch Otterpublicly, and in his official capacity as governor, expressed

his opposition to a medical marijuana bill. In 2012, in response to Representative Trails medical

marijuana bill, Governor Otter stated he would not look in favor on that bill.91Governor

Otters stated reasoning came from a conversation with Montana Governor Brian Schweitzer,

where Schweitzer conveyed to Governor Otter that the legalization of medical marijuana in

Montana caused growers to outgrow the legal market and resort to selling their residual

marijuana illegally.92In light of Governor Otters opinion and inthe unlikely event that a

medical marijuana bill were to pass the legislature, it would likely be vetoed by Governor Otter

in an attempt to avoid the issues the Montana Governor has experienced.

Finally, the Idaho Supreme Court has adjudicated several unsuccessful claims of a

constitutional bar to the states marijuana criminalization. For instance, recently in 2011 a man

charged with possession with intent to deliver argued a religious exemption under the first

amendment as a self-proclaimed practitioner of THC Ministries.93The court denied his religious

exemption claim holding that while religious belief may not be stifled by the state, religiously88Senate Resolution 112,supranote 85.89Senate Resolution 112,supranote 85.90Richard S. Beth,Bills and Resolutions, Examples of How each is Used, CONGRESSIONAL RESEARCH SERVICE(Dec. 2, 2010), available athttp://assets.opencrs.com/rpts/98-706_20101202.pdf.91CDAPRESS.COM,Otter: Dangers of Pot Outweigh Medical Benefits(last updated Jan. 27, 2012, 12:14 PM),http://www.cdapress.com/news/local_news/article_c3d5e132-4921-11e1-812d-0019bb2963f4.html.92Id.93State v. Fluewelling, 249 P.3d 375, 376 (Idaho 2011).


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motivated conduct may be prohibited if it is regulated under an otherwise valid statute of

general application.94Also, unlike the 1975 Alaskan Supreme Court, the Idaho Supreme Court

held that there is no fundamental right to smoke marijuana.95In response to the Alaska case,

Ravin v. State, which found that smoking marijuana was a fundamental right protected by a

provision of the Alaska state constitution, the Idaho Supreme Court stated that no similar

provision exists in . . . the Idaho Constitution.96Similarly to the attitudes of the Executive and

Legislative branches, the Idaho Supreme Court has been resistant to creating any judicial

exception for the legal use of marijuana.

C. Idahos Potential Trouble Regions

The change of policy in the surrounding states inevitably creates a higher availability of

marijuana throughout the region, which is bound to have a residual effect of Idaho. We will take

a look at three specific Idaho regions that will significantly be affected by these changes:

Moscow, Coeur dAlene, and Boise.

Moscow, ID is home to the University of Idaho, which sits less than 10 miles away fromPullman, WA, home of Washington State University.97The demand and supply for legal

marijuana is likely to be high considering that 1) college age students smoke marijuana at a

higher rate than other age demographics, and 2) Washington State,98as a whole, smokes

substantially more marijuana than most of the country.99The ten-mile trek between cities

combined with the coming availability of marijuana in Pullman introduces the concern that

University of Idaho students will either drive to Pullman to purchase marijuana and then

transport it back to Idaho, thus making it more available in the state, or that Idaho students will

travel to Pullman, smoke marijuana, and then drive back to Moscow while under the influence of

marijuana, thus creating a danger to others on the interstate highway.100To stay these potential

94Id.at 378.95CompareState v. Kincaid, 566 P.2d 763 (Idaho 1977) andState v. OBryan 531 P.2d 1193, 1198 (Idaho 1975)(The right to smoke marijuana is not a fundamental right.) withRavin v. State, 537 P.2d 494 (Alaska 1975)(declaring that the criminalization of marijuana is unconstitutional under the Alaska state constitutions guarantee ofprivacy provision).96State v. Kincaid, 98 Idaho 440, 442 (1977).97Any estimations of distance between cities is found on GOOGLE, Google Maps, maps.google.com (last visitedMar. 9, 2014).98

The State not the University.99WASHINGTON OFFICE OF FINANCIAL MANAGEMENT,Estimated Marijuana Use in Washington State(2012),available at http://www.ofm.wa.gov/ballot/2012/Marijuana_Consumption_Worksheet.pdf; Katy Steinmetz,Washington Residents Smoke Way More Weed than Officials Thought, TIME (DEC.18,2013),http://nation.time.com/2013/12/18/washington-residents-smoke-way-more-weed-than-officials-thought/.100Kaitlin Gillespie,New Marijuana Law Could Cause Problems on the Palouse, THE SPOKESMAN-REVIEW(December 6, 2012), http://www.spokesman.com/stories/2012/dec/06/new-marijuana-law-could-cause-problems-on-the/; Karen Zatkulak,More Marijuana Could Cross State Line to University of Idaho, KTVB.COM (last updatedNov. 25, 2013, 3:17 PM), http://www.ktvb.com/news/More-marijuana-crossing-state-line-into-Univerisity-of-Idaho---190948591.html.


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dangers, the likely option for the Moscow police would be to increase their patrols along the

highway between Moscow and Pullman,101which will cost both Moscow and Idaho money.

The concerns that University of Idaho students will travel to Washington to purchase

marijuana is reminiscent of the 1970s and 1980s when the drinking age in Idaho was nineteen,

while the drinking age in Washington was twenty-one.102Deaths along the highway between

Moscow and Pullman were commonplace at the time because Pullman residents would drive to

Moscow, drink, and drive under the influence back to Washington; although no suggestion exists

that the marijuana legalization will be as bad, it certainly creates an issue of increased marijuana

trafficking to the marijuana-friendly students of the University of Idaho.103Although the city

initially intended to disallow marijuana shops from opening in the city, marijuana sales and

dispensaries in Pullman that open will be subject to strict regulations promulgated by the city

council.104Finally, it should be noted that although Washington allows marijuana to be

purchased and possessed for recreational purposes, due to federal funding stipulations,

Washington State University maintains their policy that marijuana is not allowed on campus.105

So the combination of young college age students, a short distance of ten miles between thetowns, and a coming, large, and legal supply of marijuana is likely to cause issues for the city of

Moscow and, thus, Idaho..

Coeur dAlene is a small tourist destination with a population of about 40,000 in Idahos

pan-handle nestled in-between Washington and Montana, and less than an hours drive from

Spokane, WA, the fifth largest city in the northwest with a population of approximately

200,000.106As previously mentioned, Washington allows marijuana purchase and possession for

recreational purposes and Montana allows marijuana possession and purchase for medical

purposes. This means that a person transporting an otherwise legal amount of marijuana from

Washington to Montana, or vice versa, is a felon for the brief fifty-mile trek through Idaho. The

101Kaitlin Gillespie,New Marijuana Law Could Cause Problems on the Palouse, THE SPOKESMAN-REVIEW (Dec. 6,2012), http://www.spokesman.com/stories/2012/dec/06/new-marijuana-law-could-cause-problems-on-the/.102Lewiston Morning Tribune, Age Drops to 19: Taverns Await New Customers (Jun. 29, 1972) available athttp://news.google.com/newspapers?id=YNJRAAAAIBAJ&sjid=0zIMAAAAIBAJ&pg=5947%2C6709340 (articleon the drinking age being lowered); Sherry Devlin, Raising Drinking Age to 21 a Dilemma, THE SPOKESMAN-REVIEW (Feb. 16, 1986) available athttp://news.google.com/newspapers?nid=1314&dat=19860216&id=LM4zAAAAIBAJ&sjid=NO8DAAAAIBAJ&pg=5741,615016 (article on the drinking age being raised)103Kaitlin Gillespie,New Marijuana Law Could Cause Problems on the Palouse, THE SPOKESMAN-REVIEW(December 6, 2012), http://www.spokesman.com/stories/2012/dec/06/new-marijuana-law-could-cause-problems-on-the/.104Sophie Miraglio, Six Month Moratorium on Marijuana Approved by Pullman City Council, KLEWTV.COM(Sep.

25, 2013, 12:35 PM PST), http://www.klewtv.com/news/local/Pullman-pot-225202682.html; Rachel Dubrovin, Cityof Pullman Plans Strict Regulations for Recreational Marijuana , KLEWTV.COM (Feb. 27, 2014),http://www.klewtv.com/news/local/Pullman-pot-247573831.html.105WASHINGTON STATE UNIVERSITY, WSU Outlines Parameters for Initiative 502 Marijuana Law(Dec. 5, 2012),http://news.wsu.edu/2012/12/05/wsu-outlines-parameters-for-initiative-502-marijuana-law/#.Ush6WfRDuSo; Drugand Alcohol Abuse Prevention, 20 U.S.C.A. 1011i (2008) (federal law requiring universities that receive federalfunds to have a comprehensive marijuana policy).106COEUR DALENE CHAMBER OF COMMERCE,Area Information, http://coeurdalene.org/discover-cda/area-information/ (last visited Mar. 9, 2014); UNITED STATES CENSUS BUREAU,State and County QuickFacts: Spokane,WA (last revised Dec. 17, 2013, 12:31:11 EST), http://quickfacts.census.gov/qfd/states/53/5367000.html.


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legality of marijuana in the states, combined with the fifty-mile transit between the states

naturally leads to the conclusion that marijuana will be trafficked between the two states more

often. In Coeur dAlene and Northern Idaho, few alternatives to raising patrols along the

highway and purchasing more drug sniffing dogs remain.

Finally, Boise is the third most populous city in the northwest107and the most populous

city in Idaho, thus creating a large market for marijuana.108Boise lies only 57 miles from the

Oregon border, and in 2012, Oregon trafficked 40% of Idahos marijuana into Idaho.109Boise

State University, home of 22,000 students in the fall 2012 semester, lies in central Boise.110The

high population; close proximity to a Oregon, a state with a medical marijuana law; and the large

college population, similarly to the issues that Moscow had, all combine to create a high risk of

marijuana being trafficked from marijuana-friendly Oregon into Idaho. County Sheriffs state that

since legalization in the surrounding states, marijuana trafficking into southern Idaho has

increased.111However, Boise police state that they have not seen a rise in marijuana possession

cases in the Boise area, but they hear that patrolmen see a higher rate of trafficking cases along

the highway.

112

These three cities do not monopolize Idahos issues associated with the marijuana

policies of neighboring states. In fact, Idaho State Police have claimed that, due to the

legalization and liberal attitude towards marijuana in the surrounding states, marijuana

trafficking in the state has tripled between the years 20082013.113As the United States Supreme

Court recognizes, intrastate activity (namely the legalization of marijuana to some extent in

certain states) has a direct effect on interstate commerce (marijuana leaking into Idaho from

those states where marijuana is legalized).114Legalization of marijuana in the surrounding states

will continue to effect Idaho detrimentally, so long as they must continue stepping up police

enforcement to match the increase in the supply of marijuana to the state funneled from the states

where it is legal. In order for Idaho to blunt the damage caused by legalization outside of itscontrol, Idaho must either, at a minimum, decriminalize it (which is unlikely to occur due to the

requirements of a citizen initiative and Senate Concurrent Resolution 112), or cause the federal

107ASSOCIATED PRESS,Boise Now Northwests Third Most Populous City, THE SPOKES-MAN REVIEW (Apr. 25,2005), http://www.spokesman.com/stories/2005/apr/26/boise-now-northwests-third-largest-city-at-208000/.108UNITED STATES CENSUS BUREAU,supranote 105.109John Cohen,Boise Fact Sheet, BOISE:CONVENTIONS AND VISITORS CENTER (last visited Jan. 6, 2014),http://www.boise.org/uploads/PressRoomDocuments/PR-FactSheet.pdf; AssociatedPress,Idaho Arrests HighlightMedical Marijuana Divide, YOUTUBE (July 6, 2012), http://youtu.be/g8_Wg200LSk.110BOISE STATE UNIVERSITY,FACTS ANDFIGURES:20122013,http://news.boisestate.edu/wp-content/blogs.dir/1/files/2011/08/facts-figures-2014-digital.pdf(last visited Jan. 6, 2014).111

Alison Gene Smith,Marijuana Makes its Way into Idaho from Neighboring States, MAGICVALLEY.COM (Mar.14, 2013), http://magicvalley.com/news/local/crime-and-courts/marijuana-makes-its-way-into-idaho-from-neighboring-states/article_29bcc5cc-a2a0-597a-9fd0-fb77db9c6062.html.112Ryan Thorne, Sticky Subject: Idaho Strictly Enforces Pot Laws despite Recent Legislation, THE ARBITER (Aug.29, 2013), http://arbiteronline.com/2013/08/29/sticky-subject-idaho-strictly-enforces-pot-laws-despite-recent-legalization/.113Justin Corr,Police: Marijuana Trafficking in Idaho Triples in Five Years(Nov. 13, 2013, 5:52 PM, updated Nov.13, 2013, 6:17 PM), http://www.ktvb.com/news/Marijuana-trafficking-in-Idaho-triples-in-five-years-231827851.html.114See Gonzales v. Raich, 545 U.S. 1 (2005).


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government to enforce its own CSA. This leads to the primary question of this paper: Can Idaho

sue the federal government to enforce the CSA?

IV. The Standing Requirement

Idaho has standing because the federal governments refusal to enforce its own law directlycauses damage to Idaho. In order to bring a suit of any kind, a party must establish the minimum

constitutional requirement for standing derived by the courts from the case or controversy

constitutional requirement.115The constitutional standing standard espoused by the court in an

opinion authored by Justice Scalia consists of three irreducible elements, all of which must be

met: 1) the plaintiff must have suffered from injury in fact, 2) there must be a causal

connection between the injury and the conduct complained of, and 3) it must be likely that, by

judicial intervention, the injury will be redressed by a favorable decision.116

An injury in fact requires an invasion of a legally protected interest which is (a)

concrete and particularized, and (b) actual or imminent, notconjectural or hypothetical.117

As to the first requirement, Idaho suffers from an increase in marijuana being trafficked throughand into the state. This is a concrete injury because the costs of extra patrols, the costs of extra

drug sniffing dogs, and the societal costs as outlined in the Senate Concurrent Resolution 112

directly injure Idaho. In order for an injury to be particularized, the court requires that the

injury must affect the plaintiff in a personal and individual way.118They are particularized

because particular facts (i.e., the federal governments non-enforcement of the CSA in certain

states) are causing particular injuries (Idahos costs associated with the increase in marijuana in

the region). Secondly, these injuries are actual, in that they are actually occurring evident by the

increase in marijuana trafficking into Idaho over the last five years. Due to the acceleration of

legalization in the region, these injuries will imminently worsen.

Idaho meets the causal connection requirement because but for the governments non-

enforcement of the CSA, Idaho would not be suffering the increase in marijuana trafficking into

the state. The second requirement, that there must be a causal connection between the injury

and the conduct complained of, requires that the injury fairly can be traced to the challenged

action of the defendant, and not injury that results from the independent action of some third

party not before the court.119The fact that the damage caused to Idaho is indirect, in that it is

the surrounding states actions that are directly causing their injury, not the federal governments

inaction, makes causation requirement more difficult to show.120Although the damage is not

directly caused by the federal governments inaction, the test only requires that the damage be

fairly traceable to the action/inaction.

115Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); U.S.CONST.amend. art. III, 2, cl. 1.116Lujan, 504 U.S.at 560561.117Id.at 560.118Id.at n.1.119Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 4142 (1976).120See Allen v. Wright, 468 U.S. 737, 757758 (1984).


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InAllen v. Wright, the plaintiffs alleged that the federal government was not enforcing their

own law that would remove tax exemption status form certain schools if those schools did not

meet certain requirements regarding public school integration, which caused their children injury

regarding their childrens diminished ability to receive an education in a racially integrated

school.121The plaintiff was not able to show that the non-removal of tax integration status

affected the plaintiffs legal rights or interests (the right or interest of having an integrated

education) because the line of causation between maintaining tax exemption status for the

schools that were not meeting their federally mandated requirements and desegregation of those

schools is attenuated at best.122The diminished ability of a child to receive a desegregated

education is fairly traceable to the illegal tax exemption status of those schools in the students

community only if so many of the schools within that community receive tax exemption status

that loss of those exemptions would make a noticeable difference.123

Allenis an example of the third party problem. Is it really the government that is causing

the damage to those children by not removing tax-exempt status from schools that refuse to

integrate, or is it the schools that refuse to integrate causing the damage. This argumentdifferentiates government action that is designed to affirmatively alter behavior, and government

action that is designed to encourage or discourage behavior, such as the negative tax

consequences that should befall non-integrated schools inAllen, giving standing to those that

bring suits against the government in the former, but not the latter, situation.

In this case, the CSA is designed to affirmatively alter behavior. It carries with it criminal

and civil consequences,124and in recent history the federal government has gone out of its way to

shut down shops and grow rooms in violation of federal law.125So unlike the negative tax

consequences inAllenthat were designed simply to encourage or discourage behavior, the CSA

is designed to affirmatively alter behavior. The increase in marijuana trafficking into Idaho

would not have happened but for the governments inaction in enforcing the CSA in states thathave legalized marijuana to some extent, and, at a minimum, the increase would not have been as

dramatic, therefore Idaho meets the causal connection requirement of standing.

Finally, that a decision in favor of the plaintiff would redress his injury must be likely

as opposed to speculative.126This is a fairly easy showing; for example, if the federal

government were to shut down the marijuana shops that will be in Pullman, WA by 2014, then

the issues discussed earlier (marijuana being trafficked into Idaho, the need for more patrols

along the border, the societal costs of more driving under the influence cases, etc.) will be

diminished and the cost to Idaho with it. Therefore, Idaho meets all three requirements of

standing.

121Id.at 756759.122Id. at 757.123Id. at 758.12421 U.S.C. 841856 (2010) (offenses and penalties).125ASSOCIATED PRESS,Feds Crack Down on Hundreds of Medical Marijuana Shops in California(June 11, 2013),http://www.businessinsider.com/feds-crack-down-on-hundreds-of-medical-marijuana-shops-in-california-2013-6.126Lujan, 504 U.S. at 561.


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The take care clause creates a duty that the president enforce law passed by Congress. To be

successful, any suit for injunctive relief requires that there actually be unlawful conduct. The

primary inquiry, in regards to the lack of enforcement of the CSA in those states, is whether

President Obamas administrations decision not to prosecute for marijuana where the person is

not in violation of state law is unconstitutional, and thus unlawful. In this situation, it seems clear

that if the Obama administrations lack of enforcement in certain states violates the duty placed

on his office by the constitution and that violation would likely injure Idaho, then Idaho should

be entitled to relief.134The Constitution establishes the general rule that the president is required

to enforce Congresss statutes.135While determining whether the Obama administrations lack of

enforcement in this situation is unlawful or not, we must pay special attention to exceptions to

the general rule, specifically whether the exceptions gives the administration discretion, and

additionally to what depth is that discretion allowed, to enforce federal law unequally among the

states.

The Founders envisioned the U.S. Government as a system that incorporated a series of

checks and balances and focused on separation between both 1) branches of government and 2)state and federal power.136Although the constitution never specifically mentions checks and

balances, or separation of powers,they are, instead, principles derived from the framework of

the constitution.137These principles establish the foundation for the common expression the

legislature makes the laws, the executive branch enforces the laws[,] and the judiciary interprets

the laws.138

Among the provisions that work together holistically to create a system of checks and

balances sits the take careclause, which sets forth the requirement that the President shall

take carethat the laws be faithfully executed.139According to a 1755 dictionary, closely

abutting the period of the constitutions signing, to execute the laws faithfully means to put into

action; to do what isplanned or determined.140The constitutions use of the term shallexplicitly imposes on the president a requirement as opposed to an allowance of discretion.141In

fact, as a derivative of the take care clause, the U.S. Supreme Court holds that the constitution

does not permit the President to refrain from executing laws duly enacted by the Congress as

those laws are construed by the judiciary.142

134SeeNational Treasury Employee Union v. Nixon 492 F.2d 587, 590591 (1974) ([W]here a specific duty isassigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that theindividual who considers himself injured, has a right to resort to the laws of his country for a remedy.). 135U.S.CONST. art. II, 3.136

See, e.g., THE FEDERALISTNO.51(Alexander Hamilton).137See U.S. CONST.art. IIII (divvying up power between the three branches of government, the legislative branch(article I), the executive branch (article II), and the judicial branch (article III)).138Elizabeth Vaughan Baker, Usurping the Executive Power: State Board of Ethics for Elected Officials v. Green,51 LA.L.REV. 911, 915 (1991).139U.S. CONST. art. II 3 (emphasis added).140Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administrations Nonenforcement of ImmigrationLaws, The Dream Act, and The Take Care Clause, 91 Tex. L. Rev. 781 (2013).141Id.142National Treasury Employee Union v. Nixon, 492 F.2d 587, 604 (1974).


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B. Exceptions

i. Generally

Although there exists a requirement that the President actually enforce the laws passed by

Congress, there also exist exceptions that allow the president some discretion on how and towhat extent those laws are enforced. First we will take a look at how the president blunts the

impact of Congresss duly passed laws, and second we will look at the accepted reasons for such

a blunting.

The President has three main methods to not enforce a law passed by Congress: first he

can refuse to enforce the law whatsoever,143second he could refuse to enforce the law to the

extent that Congress envisioned its enforcement,144and third he can refuse to defend the laws

constitutionality in court.145In the memos regarding marijuana, the Obama administration

unambiguously decided to not enforce the CSA in regards to marijuana under circumstances in

which someone 1) is in compliance with state law, and 2) that state law meets a standard that the

administration has deemed sufficient to meet the goals of marijuana enforcement set out in the2013 memo; this places the Obama administration directly in the second category because he

continues to enforce the law, just not to the extent envisioned by congress.146Additionally, in

this case, the President acts with the least authority because he acts in direct contradiction to

Congresss authority.147

Another delivery method of the information that a president plans to not enforce a law is

a signing statement. Presidents increasingly utilize signing statements into the 20th century.148A

signing statement is a written statement, usually released immediately after the signing of a bill,

regarding his thoughts on, or interpretation of, the law.149Historically, these signing statements

were used as a rhetorical device to make the Presidents opinion public.150However, presidents

have increasingly utilized signing statements to make apparent there are portions of the law he

will not enforce. For instance, President Herbert Hoover, who served as president between the

years of 19291933, wrote eleven signing statements as a rhetorical device to get out his opinion,

and one signing statement to express his concerns regarding a constitutional issue.151By the late

143Frank H. Easterbrook,Presidential Review, 40CASE W.RES.L.REV.905,921(1989),available athttp://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2160&context=journal_articles (quotes JamesWilson, an author of article III of the constitution as saying under this constitution . . . the President of the United

States could . . . refuse to carry into effect an act that violates the constitution [in a manner similar to the SupremeCourt]).144SeeJAMES P.PFIFFNER,POWER PLAY:THE BUSH PRESIDENCY AND THE CONSTITUTION(2008) (exploring signing

statements made by President George W. Bush in which he makes clear he will not enforce certain laws in the waythe legislature intended).145SeeU.S. v. Windsor, 133 S. Ct. 2675 (2013) (in which Holder refused to defend DOMA, which the president hadinterpreted as unconstitutional).1462013 memo,supra note 54.147Youngstown Sheet & Tube co. v. Sawyer, 343 U.S. 579, 634655 (1952) (Justice Jackson concurring).148PFIFFNER,supranote 143, at196, 214.149See id.150Id.151Id.at 199.


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20th century, these signing statements have become so common that Presidents Ronald Reagan

wrote 276 signing statements, seventy-one of which called into question the constitutionality of a

recently signed bill. President George H. W. Bush wrote 214, 146 of which called into question

the constitutionality of a bill. Bill Clinton wrote 391, of which 105 regarded the constitutionality

of the bill.152Using this method, a president could sign a bill that includes multiple provisions,

and then effectively nullify the provisions he disagrees with, usually due to his belief the bill is

not constitutional, immediately after the signing by stating his intent to do so.

Finally, a method that the Supreme Court found to be unconstitutional was the line-item

veto. Congress authorized the use of a line-item veto by the president in the 1990s153that

effectively gave the president an opportunity to reject portions of a bill at their signing based

only on his opinion that the funds expended would be wasteful.154The Supreme Court held this

power to be unconstitutional on the grounds that the bicameral presentment requirement155in the

constitution had been bypassed.156This reasoning supplies additional support that the presidents

non-enforcement of a duly passed law is unconstitutional because if a president cannot, in

harmony with the constitution, veto a portion of a bill at the signing of a law, he certainly cannot,for all intents and purposes, constructively veto a law (via non-enforcement) well after it has

become law. The narrowly tailored power to veto portions of a bill in limited circumstances is

less intrusive than what is set out in the 2013 memo, which leads to the conclusion that it must

also be unconstitutional.

Although there are many methods to refuse to enforce a law, there exist far fewer

accepted reasons for a president to refuse to enforce Congresss legislation. The most accepted

reason for refusing to enforce a law would be the Presidents personal belief that the law is

unconstitutional.157The Presidents oath, which requires him to uphold the laws of the

constitution, establishes the constitutional foundation for this reasoning.158In a legal opinion by

the Honorable Abnor J. Mikva, he states that if the President, in exercising his independentjudgment, finds that both 1) a provision would violate the Constitution, and 2) it is probable

that the [Supreme] Court would agree with him then he may refuse to enforce thestatute under

the reasoning that it is unconstitutional.159As an example, just recently the President, via

Attorney General Holder, refused to enforce or defend160certain provisions of the Defense of

152Id. at 199.153Line Item Veto Act, Pub. L. No. 104-130 (held unconstitutional in Clinton v. City of New York, 524 U.S. 417(1998)).154Clinton v. City of New York, 524 U.S. 417 (1998).155

U.S.CONST.art. I, 7, cl. 23.156Clinton v. City of New York, 524 U.S. 417 (1998).157See generallyPFIFFNER,supra note 143, at 194228.158U.S.CONST.art. II, cl. 8 (President must take an oath or affirmation to preserve, protect, and defend theConstitution of the United States).159Walter Dellinger,Legal Opinion from the Office of Legal Counsel to the Honorable Abner J. Mikva, 48 Ark. L.Rev. 313, 315 (1994).160Eric J. Holder, Jr.,Letter from the Attorney General to Congress on litigation Involving the Defense of MarriageAct, DEPARTMENT OF JUSTICE (Feb. 23, 2011), available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html.


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Marriage Act (DOMA) citing the laws alleged unconstitutionality.161Soon after that

announcement, the Supreme Court struck down the section of DOMA the administration

considered to be unconstitutional.162In the context of the refusal to enforce or defend DOMA,

the president fulfilled both requirementsthat he believe it is unconstitutional and that he

reasonably believes the Supreme Court would agree with him. No such similar situation exists

here. First, President Obama has not made public his belief that the CSA is unconstitutional in

regards to marijuana.163Second, because the Supreme Court has already expressly stated that

Congress has the authority to prohibit marijuana for any reason under the power of the interstate

commerce clause.164

The presidents refusal to enforce a law that he personally believes to be unconstitutional

is generally constitutionally sound. However, there is no judicial precedent for allowing the

president to refuse to enforce a law based strictly on policy reasons. As mentioned earlier, the

take care clauseplaces a requirement on the Presidents officeto enforce law passed by

Congress.165In fact, at the writing of the constitution, the founders explicitly rejected a

presidential power to suspend or absolutely veto a law of Congress.

166

The founders believedthat to allow the president to dispense of portions of a statute he disagreed with would render

the execution of the laws dependent on his will and pleasure.167The Supreme Court held that, at

a minimum, the president has no authority to refuse to perform mere ministerial act[s].168At

least one author believes that outside of public challenges to the constitutionality of a law, along

with a statement of the grounds for such objection, there is little to no legitimacy for a president

to refuse to enforce a law.169

ii. Equal Sovereignty among the States

Applying federal law unequally among the states, at first glance, seems unfair and inviolation of the principles of federalism.170For instance, imagine that a president were to enforce

the tax for not having health insurance imposed by the Affordable Healthcare Act only in

specific states relative to individual state policy. Regardless of the official reason stated that

seems inherently unfair. The Supreme Court has standard doctrine that protects equal

161Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. 7 (2006)).162U.S. v. Windsor, 133 S. Ct. 2675, 2693 (2013).163Although President Obama has hinted that marijuana laws generally target a select few, implying that theremay be an equal protection issue at hand, an issue that has not been decided by the Supreme Court. David Remnick,

Going the Distance, THENEW YORKER (Jan. 27, 2014),http://www.newyorker.com/reporting/2014/01/27/140127fa_fact_remnick.164Gonzales v. Raich, 545 U.S. 1 (2005).165See Delahunty,supranote 139.166PFIFFNER,supra note 143, at 196, 214.167Id.at 215.168Kendall v. U.S., 37 U.S. 524, 609613 (1838).169Id.at 227.170For a discussion on federalism, see John Minor Wisdom,Foreward: The Ever-Wheeling Wheels of AmericanFederalism, 59 NOTRE DAME L.REV.1063(1984).


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sovereignty among the states, which requires a generally equal application of law among the

states.

The requirements for a departure from the equal sovereignty among the states doctrine

to be constitutional are 1) exceptional conditions, and 2) ineffective attempts to remedy those

conditions; additionally the law is more likely to look constitutional if it is temporary in

design.171The equal sovereignty among the states doctrineprohibits the unequal distribution of

law among the states with few exceptions.172The United States Supreme Court has stated, in

regards to what it takes to overcome this doctrine, that [e]xceptional conditions can justify

legislative measures not otherwise appropriate; the supreme court found the exceptional

conditions that allowed the Civil Rights Act of 1964s173extreme requirement of pre-approval

from the federal government for a change in voting procedure exclusive to specific states during

the 1960s174were the consistent institutional and cultural discrimination against certain minority

groups.175The court originally held for upholding these requirements in the 1966 case South

Carolina v. Katzenbach,176but struck down the requirements in 2013 with the case Shelby

County. The exceptional circumstances that initially allowed the unequal distribution of lawamong the states inKatzenbachwere that 1) there was a history of tests specifically designed to

keep certain minority groups from voting, and 2) case-by-case litigation had little to no long-

term effect on the voting structures in those areas.177This institutional racism resulted in a voting

turnout for minorities to be approximately fifty percent less than white voters, thus significantly

diluting their impact at the voting booth.178Supporting the constitutionality that these

exceptional conditions were appropriately met by a law that unequally applied to the states,

was that the law itself was initially designed to be temporary.179The departure from the

equal sovereignty among the states doctrine ultimately requires a showing that disparage

geographic coverage of the laws is sufficiently related to the problem that is targets.180

Additionally, the temporary nature of such a remedy would strengthen the argument for itssuccessful exception to the equal sovereignty among the states doctrine.

181Fifty years after the

Katzenbach decision, the Supreme Court recognized in Shelby Countythat dramatic changes

have occurrednamely that discriminatory evasions of federal decree have become rarethat

171Shelby County, Ala. v. Holder, 133 S. Ct. 2612, 26232635 (2013)172Id. at 2618.173Civil Rights Act of 1964, 42 U.S.C. 2000e-2 (1964).17442 U.S.C.A. 1973b (2008) (providing that covered jurisdictions must have any alterations to their voting

scheme pre-approved by the federal government before those changes are implemented) (held unconstitutional byShelby County, Ala. v. Holder, 133 S. Ct. 2612, 2618, 2619 (2013)).175Shelby County, Ala., 133 S. Ct. at 2618, 2619.176383 U.S. 301 (1966).177Shelby County, Ala., 133 S. Ct. at 26242625 (citingKatzenbach, 383 U.S. 301).178Id.179Id. at 2625 (this extraordinary legislation wasintended to be temporary, set to expire after five years). 180Id. at 26152616 (quoting Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193, 203(2009)).181Id. at 2625


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cause the exceptional circumstances required for a disparity in application of law among the

states to no longer exist.182

Although the court, so far, has applied its equal sovereignty among the states doctrine

exclusively to legislative action, the same logic applies to executive non-enforcement of law

because executive action can have the same effect as if Congress decided to only apply the CSA

to states that had not legalized marijuana. In the early 1900s, the Supreme Court articulated that

[t]his Union was and is a union of states, equal in power, dignity, and authority.183

The non-enforcement of the CSA in those states that have legalized marijuana to some

extent is even less appropriate in light of the equal sovereignty among the states doctrine. This

is because state legalization of marijuana is not an exceptional condition of the same caliber as

prominent and institutionalized racial segregation at the polls. Nor is the disparate enforcement

of the CSA sufficiently related to the problem that it targets.184Because there are no

exceptional circumstances, nor is the non-enforcement geographically linked to a problem to be

targeted, there is no need to inquire as to whether there have been effective remedies to remedy

those circumstances. This doctrine brings very strong arguments against application of the 2013Attorney General memo regarding marijuana.

iii. Lack of Funds

The executive office does have the discretion to distribute funds they receive in an

appropriate manner.185Consistent with the theme that the President has most discretion in his

authority as commander and chief is that most of the presidents budgetary discretion is in the

realm of foreign affairs.186Discretion to interpret law or alter the enforcement of a law due to

budgetary concerns is given more weight depending on the executive officersplacement on the

executive offices chain of command,187of which the President and Attorney General, whomgave the order to U.S. attorneys to not enforce marijuana laws in certain states, are at the top.

The President is allowed more discretion to refuse to enforce a law when there are

insufficient resources, which occurs when he simply has not been appropriated the required

funds to enforce the law.188However, derivative of the equal sovereignty among the states

discussion above is that the president would have to argue that his budget allows him to enforce

the law in some states, but not in othersa self-defeating argument. This argument is self-

defeating because the cost to shut down a notorious marijuana dispensary in a state where

182Id. at 2625.183

Coyle v. Smith, 221 U.S. 559, 567 (1911) (arguing that allowing Congress to impose additional restrictions onnew states as a condition of admittance would impose laws unequally on the states, and would likely beunconstitutional).184Shelby County, Ala., 133 S. Ct. at 26152616 (quoting Northwest Austin Municipal Utility District No. 1 v.Holder, 557 U.S. 193, 203 (2009)).185See Louis Fisher,Presidential Discretion and Congressional Controls, 37 LAW &CONTEMP.PROBS.135 (1972),available at http://scholarship.law.duke.edu/lcp/vol37/iss1/.186See id.187Barr v. Matteo, 360 U.S. 560, 57374 (1959).188Id.


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marijuana is legal, is likely to be less than the cost to shut down a hidden marijuana dispensary

or dealer in a state where marijuana is illegal, a practice that the federal government continues.

The lack of funds argument falls apart when the law is appropriately enforced in some states, but

not others.

C. An Unconstitutional Appropriation of Power

The presidents authority to refuse to enforce a law primarily rests on his reasoning for

refusing to enforce that law. Here, President Obamas administration is not enforcing the CSA as

it pertains to marijuana in certain states predominantly due to his own policy reasons. In a 2014

interview, President Obama stated he believes marijuana to be [no] more dangerous than

alcohol.189However, the marijuana memos cite a need to expend the federal governments

resources efficiently and the historical relationship between the federal government, and state

and local police forces, in which the state and local police forces are the primary enforcers ofmarijuana law at the local level.190Although the President refuses to enforce the law based on his

own personal policy reasons, he has hinted that there may be an equal protection issue involved

with the enforcement of federal marijuana laws by saying that hard penalties for marijuana

possession are being applied unequally, and usually with a racial disparity.191

The marijuana memo cites the need to expend the federal governments resources

efficiently.192However, the cost to shut down a marijuana shop in a state where recreational or

medical marijuana is legal should be relatively similar to the cost to shut down a marijuana shop

in a state where it is illegal. Additionally, shutting down a shop in a state where marijuana is

legal is likely to require less funds because the shops will be operating publicly, as opposed to

underground shops or dealers in states where marijuana is illegal.

The marijuana memo also cites the traditional relationship between the federal, and state

and local governments, in which the state and local governments historically take the lead in

enforcing marijuana laws.193However, that relationship serves as no excuse when the federal

government would shut down a marijuana shop that opened in Moscow, ID, but would not shut

one that opened in Pullman, WA, simply because of state law.

Although the administration rhetorically holds to its publicly-stated opposition to

marijuana, going so far to state on its website [t]he administration steadfastly opposes

legalization of marijuana because legalization would increase the availability and use of illicit

drugs, and pose significant health and safety risks to all Americans, particularly young people,

189David Remnick, Going the Distance, THENEW YORKER (Jan. 27, 2014), available athttp://www.newyorker.com/reporting/2014/01/27/140127fa_fact_remnick.190Id.at 1, 2.191CNN.COM,Obama Talks about Pot(Jan. 31, 2014),http://edition.cnn.com/video/data/2.0/video/world/2014/03/07/ukraine-crimea-osce-blocked-chance-lklv.cnn.html.1922013 memo,supranote 54, at 2.1932013 memo,supra note 54, at 2.


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its actions have proven otherwise.194In another contradictory message, President Obama stated

in a recent interview that removing marijuana from the CSA was Congresss Job.195It is not

within his authority to refuse to enforce law based on policy considerations. By passing the CSA

in the 1970s and continuing to allow the CSA to be controlling law, Congress pronounced that it

is in the nations best interest to criminalize marijuana at the federal level. If sufficient public

interest exists to remove marijuana from the list of prohibited substances on the CSA, it is up to

Congress to meet that demand. Additionally, Congress authorized the President to re-categorize

or remove marijuana from the controlled substances categories altogethersubjectto a rules-

making process.196Ultimately, the Controlled Substances Act provides procedure for the

President to accomplish their goal of not enforcing the CSA as it relates to marijuana; that

procedure must be followed.

This is a situation of gross overstretch of the executive branchs purported authority to

refuse to enforce law. Idaho could bring a suit against Attorney General Eric Holder for

injunctive relief requiring that he enforce the laws duly passed by Congress.

D.

Policy Reasons for Idaho to Sue

It is one thing to have a viable claim for injunctive relief; the policy reasons for taking the

risk and cost associated with a lawsuit against the federal government must also be considered. I

argue there are two primary reasons that Idaho should bring this suit. First, Idaho should sue for

the selfish reason that Idaho simply does not want marijuana in its state, and the non-

enforcement of the CSA in the states bordering it have, and will continue to, make marijuana

more available in its state. Second, it creates the dangerous precedent that future presidents may

diminish the effectiveness of a law that they disagrees with for policy reasons to the point that it

is a law only in name. This second reason for suing takes into account the long-term

consequences of allowing the president to enforce law as he sees fit. Additionally, there are

likely other states in a predicament similar to Idahos own, so a lawsuit of many states against

the federal government may be possible in order to mitigate costs of the suit.

First, the Idaho government stands strongly against the spread of marijuana into its state.

As previously discussed, Senate Concurrent Resolution No. 112 makes clear the legislatures

opposition to marijuana legalization in the state because of the detrimental effects that would

accompany legalization.197Their desire to keep marijuana out of the state stems primarily from

concerns of the state.198One of those concerns is that marijuana use has a detrimental effect on

194

THE WHITE HOUSE OFFICE OFNATIONAL DRUG CONTROL POLICY,Marijuana,http://www.whitehouse.gov/ondcp/marijuana (last visited Mar. 9, 2014).195CNN.COM,Obama Talks About Pot(Jan. 31, 2014),http://edition.cnn.com/video/data/2.0/video/politics/2014/01/31/newday-jake-tapper-obama-marijuana-legalization.cnn.html.19621 U.S.C.A. 811(a) (2013) (stating that the Attorney General may by rule remove or downgrade a drug inschedules if he finds it does not meet the requirements for that schedule, but this rule making authority is only

allowed via a hearings process initiated by the Attorney General).197Senate Resolution 112,supra note 85.198Id.


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individual learning and brain development, which obviously has an impact on the education of

the state, which is an area that Idaho is trying to improve on.199Recently, Idaho has received well

below average scores for education among the states including being 49/50 in the school

finance category and last place for the teaching profession.200The 2014 State of the State and

Budget Address by Governor Otter heavily emphasized his goal of drastically improving Idahos

educational system.201With 1) a substantial increase in education funding in the state and 2) the

possibility that the increased availability of marijuana in Idaho could offset the investment in the

Idaho educational system, it seems apparent that Idaho has a strong personally-motivated

incentive to bring this suit for injunctive relief. Finally, there is potential that the cost and

publicity associated with a civil suit against the federal government in this case will incentivize

the federal government to settle the matter quickly. A hypothetical settlement could result in

federal funds provided to states detrimentally affected by the marijuana legalization of its

neighbors, which would both 1) mitigate damages suffered by Idaho and similarly situation

states, and 2) allow Idaho to pursue the principles laid out in Senate Concurrent Resolution 112.

Second, acquiescing to the non-enforcement of duly passed law sets a dangerousprecedent that allows the president more power than even the line-item veto would have, which

the Supreme Court expressly declared to be unconstitutional.202The Constitution expressly

conveys specific powers to the president, of which the non-enforcement of duly passed law for

policy reasons is expressly prohibited by the constitution and Supreme Court case law.203The

current administration utilizes the non-enforcement of laws to further its own agenda at a much

higher rate than most previous administrations.204Historically, presidents grant themselves

power beyond that expressly provided in the constitution due to the ambiguous nature of our

Constitution and acquiescence to presidential usurpation.205By not interfering when a president

essentially nullifies law via non-enforcement, the states deliver the message that the president

and federal government will face no consequences for non-enforcement in the future. If the statesthat are injured by this unconstitutional usurpation of power stand idly by, it is more likely that

non-enforcement of law will become a presidential norm.

President Andrew Jackson changed what it meant to be the United States President, and

in doing so, expanded presidential power greatly.206Before he took office, it was almost

199Id.200EDUCATION WEEK RESEARCH CENTER,IDAHO:STATE HIGHLIGHTS 2(2014), available athttp://www.edweek.org/media/ew/qc/2014/shr/16shr.id.h33.pdf.201Governor C.L. Butch Otter, State of the State and Budget Address (Jan. 6, 2014), available athttp://gov.idaho.gov/mediacenter/speeches/sp_2014/State%20of%20the%20State%202014%20(2).pdf.202

Clinton v. City of New York, 524 U.S. 417 (1998).203U.S.CONST. art. II.204See Delahunty,supra note 139 andNeal Devins & Saikrishna Prakash, The Indefensible Duty to Defend, 112Colum. L. Rev. 507 (2012), but seePFIFFNERsupra note 143 (providing evidence of the Bush administrations useof similar tactics).205Terry M. Moe & William G. Howell, Unilateral Action and Presidential Power: A Theory, 29 PresidentialStudies Quarterly 850, 853 (1999).206See John C. Woo,Andrew Jackson and Presidential Power, 2CHARLESTON L.REV. 521, 525526 (2008) (articleusing examples of Andrew Jacksons time as president to show how thepowers of the president can b