Federalism and Rational Regulation (2024)

David Pozen

The most common constitutional challenges to prohibitory drug laws throughout U.S. history have been founded on principles of liberty, privacy, and the pursuit of happiness. These challenges, explored in the previous chapter, are essentially Millian in character. In line with and sometimes inspired by Mill’s harm principle,192Close they contend at bottom that the state shouldn’t be able to ban personal choices that cause no direct damage to others. These challenges are also the most far-reaching. If they were accepted, the state would still be allowed to impose time, place, and manner restrictions on drug use, as well as minimum age requirements and taxes on drug sales. But the state would no longer be allowed to prohibit adults’ private possession or consumption of most, if not all, psychoactive substances—as Mill himself maintained with reference to alcohol.193Close

Since the 1960s, the next most prominent set of constitutional challenges to drug prohibition have focused not on principles of individual liberty but rather on principles of government responsibility and rationality, not on whether people’s freedom to ingest drugs may be curtailed but on who gets to make such calls and according to what standards of justification. These challenges have taken two basic forms. First, litigants have argued that under principles of federalism, Congress lacks power to set drug policy. Second, litigants have argued that under the Equal Protection Clause, both state and federal officials must regulate drugs in a nonarbitrary manner, which entails a duty to ground policies in public reason and to treat like substances alike.

As with their Millian counterparts, these arguments enjoyed some success before ultimately being vanquished. Although their core contentions had undeniable historical and conceptual force, their odds in court were slim under the interpretive paradigm that emerged after the New Deal. Had they prevailed, these constitutional challenges wouldn’t necessarily have stopped punitive prohibitionism in its tracks, but they would have required U.S. drug policy to be significantly more decentralized, evidence-based, and attentive to the different pharmacological properties of different substances.

Federal Power from the Harrison Act to the Controlled Substances Act

As chapter 1 recounted, drugs have been at the center of historic debates over the scope of the states’ police power to regulate in the interest of public health and welfare. The federal government, unlike the states, is said to have no police power, no “general authority to perform all the conceivable functions of government.”194Close If Congress wishes to enact a law on a certain subject, it must identify a clause in the Constitution that authorizes it to regulate in that area. Sometimes, this exercise is straightforward. Article I, Section 8, Clause 7 grants Congress the power to “establish Post Offices and Roads,” so no one disputes that Congress may set up a postal service. In many instances, however, the fit between a legislative scheme and the language of Article I is more contestable. “[T]he question respecting the extent of the powers actually granted” to the federal government “is perpetually arising,” Chief Justice John Marshall observed over two hundred years ago, “and will probably continue to arise, so long as our system shall exist.”195Close

Drugs have been at the center of historic debates over this question as well. When Congress, in the 1910s, first determined to outlaw the nonmedical use of opium and cocaine, it was unclear what the constitutional basis for such legislation could be. The Commerce Clause, which grants Congress the power to “regulate Commerce . . . among the several States,” might seem promising, since drugs are often sold for money. But most of the relevant drug transactions occurred within a single state rather than across state lines, and the Supreme Court’s jurisprudence at the time did not permit the Commerce Clause to reach such local matters.

Congress therefore relied on a different power in passing the Harrison Anti-Narcotics Act of 1914, its power to “lay and collect Taxes.” The statute imposed a nominal tax (increased five years later) on persons who produced, imported, or distributed opium or cocaine. Of greater consequence, the statute made it a crime to dispense those substances without having registered with the commissioner of internal revenue.196Close In addition to being one of the earliest federal forays into drug prohibition, the Harrison Act helped introduce strict liability into federal criminal law—relieving prosecutors of the burden of proving that defendants knew about the statute’s rules or intended to violate them197Close—and was “certainly the most radical regulation of a consumer market yet attempted by the federal government.”198Close

Many lawyers thought that Congress had pushed the tax power past its limit. Although the Harrison Act was framed as a revenue measure, everyone understood that the point was to root out the narcotics trade.199Close And it was blackletter constitutional law that “Congress, by merely calling an Act a taxing act,” could not “make it a legitimate exercise of taxing power . . . if in fact the words of the Act show clearly its real purpose is otherwise.”200Close The American Medical Association (AMA), moreover, came out in the 1920s against federal restrictions on the prescribing rights of physicians.201Close After upholding the Harrison Act in 1919 over the dissent of four justices,202Close the Supreme Court took the unusual step in 1926 of inviting another constitutional challenge.203Close Two years later, in Nigro v. United States, the Court upheld the statute once again. Chief Justice William Howard Taft, writing for the majority, conceded that “a mere act for the purpose of regulating and restraining the purchase of the opiate and other drugs . . . is beyond the power of Congress.” Taft found, however, that the Harrison Act’s drug control features were “genuinely calculated to sustain the revenue features.”204Close The dissenters called bullsh*t. Justice James Clark McReynolds wrote that the act’s “real and primary purpose is not difficult to discover, and it is strict limitation and regulation of the [narcotics] traffic.”205Close “That conclusion is so plain,” Justice Pierce Butler added, “that discussion cannot affect it.”206Close

The Nigro Court’s strained reading of the Harrison Act legitimated the tax power as a vehicle for prohibitory federal drug laws, a template that was repeated (in the form of a transfer tax) in the Marihuana Tax Act of 1937.207Close More than that, it gave the green light to all manner of federal regulatory taxes, aimed at encouraging or discouraging particular behaviors rather than filling the government’s coffers. Nigro is today an obscure case. Yet whether or not it deserves the title of “most disingenuous Supreme Court opinion, ever,” as one critic has charged, Nigro ranks as a milestone on the twentieth-century road to greater congressional authority.208Close Just as antidrug legislation helped defeat the idea of inherent limitations on the states’ police power in the 1910s, so did it contribute, in the 1920s, to the demise of judicially enforceable limitations on the federal government’s tax power.

A decade or so after Nigro, the Supreme Court unleashed congressional authority to a far greater extent. Following President Franklin Roosevelt’s landslide reelection in 1936, the Court effectively abandoned judicial review of the enumerated powers doctrine. The Commerce Clause was reinterpreted to permit Congress to regulate any activity that, when aggregated nationwide, could have a substantial effect on interstate commerce—which is to say, almost every activity—and became the backbone of the modern regulatory state. From 1937 to 1995, not a single federal statute was struck down by the Court as exceeding the scope of the commerce power.209Close According to the New Deal settlement, as it came to be known, the political branches were presumptively free to set economic and social policy as they saw fit; allegations of government overreach stood a chance in court only if cast as violations of noneconomic civil libertarian rights protected by the Constitution’s amendments. Hence, when Congress decided to enact new drug laws in the 1960s and 1970s, there was no need to engage in the old tax power “ruse.”210Close Congress could simply outlaw disfavored drug behaviors under the Commerce Clause, which it did first in the Drug Abuse Control Amendments of 1965211Close and then more exhaustively in the Comprehensive Drug Abuse Prevention and Control Act of 1970.212Close

In 1995, however, the Supreme Court ruled that a provision of the Gun-Free School Zones Act exceeded the scope of the commerce power.213Close Five years later, the Court did it again with a provision of the Violence Against Women Act.214Close In these two cases, United States v. Lopez and United States v. Morrison, the Rehnquist Court indicated that federal laws might no longer be upheld under the Commerce Clause if they regulate local activities with an attenuated relationship to the interstate economy. Conservatives cheered the “federalism revolution” that seemed to be underway.215Close Liberals fretted that the Court’s new jurisprudence would strangle congressional capacity to address urgent public problems. Momentum seemed to be on the conservatives’ side, until drugs reentered the picture.

In Gonzales v. Raich, two seriously ill California medical marijuana patients and their caregivers argued that the federal Controlled Substances Act (CSA) exceeds the scope of the commerce power to the extent that it prohibits local cultivation and use of marijuana in compliance with state law. The patients won in the court of appeals.216Close Surprising many, the Supreme Court in 2005 voted 6–3 to reverse. Justice John Paul Stevens, writing for the majority, explained that Congress could rationally conclude that the failure to criminalize such conduct would undercut its goal of destroying the interstate market in marijuana.217Close Justice Anthony Kennedy defected from his conservative colleagues to join Justice Stevens’s opinion. Justice Antonin Scalia defected as well and concurred in the judgment.218Close In dissent, Justice Sandra Day O’Connor protested that the Court had reduced Lopez and Morrison to “nothing more than a drafting guide,” easily circumvented by future Congresses, and “extinguishe[d]” any possibility of collective learning from California’s “experiment with medical marijuana.”219Close

It was easy to be cynical about Justice Kennedy’s and Justice Scalia’s embrace of federal power when it targeted a countercultural drug.220Close Rather than vote to uphold the CSA in its entirety, they could have adopted any number of intermediate positions that would have limited the statute’s applicability in states that authorize medical marijuana under controlled conditions.221Close From the other side of the ideological spectrum, Justice Stevens dropped hints in Raich that he personally opposed marijuana prohibition,222Close which he later described as “futile.”223Close The jurisprudential imperative, for Stevens and his liberal colleagues, was to put a stop to the Court’s federalism revolution and shore up the New Deal settlement. In this they succeeded. The most significant constitutional challenge to the war on drugs in many years didn’t just fail to deliver the knockout blow to that settlement; to the contrary, Raich united left- and right-leaning legal elites in reaffirming the de facto nationalization of the police power.

And yet Justice O’Connor’s prediction about the death of state experimentation on marijuana policy proved quite wrong—in part because of another set of Rehnquist Court federalism rulings. In two cases from the 1990s, New York v. United States and Printz v. United States, the Court held that Congress may not compel states to adopt particular laws or to administer federal laws.224Close No one was thinking about drugs when this “anticommandeering” doctrine was developed. When states subsequently began to legalize marijuana for medicinal and then recreational purposes, however, this doctrine seemed to imply that Congress couldn’t force them to recriminalize pot or to devote resources to enforcing the federal prohibition.225Close A Court that had never shown sympathy for drug users had, it turned out, created some breathing room for drug reformers. Although a separate principle of structural constitutional law dictates that federal legislation prevails over (or “preempts”) state legislation whenever the two conflict,226Close the anticommandeering doctrine has also helped legalizing states to persuade judges that most of their actions are not preempted by the CSA.227Close The Obama administration reinforced this line of argument by urging the Supreme Court to stay out of the way228Close and by announcing that it would no longer enforce the CSA’s marijuana provisions in states that had legalized the substance, except under limited circ*mstances.229Close

The current constitutional equilibrium is precarious. The more states do to support their marijuana companies and consumers, the more their policies will not just deviate from but will actively subvert the federal prohibition.230Close The same goes for psychedelics and any other substances that states might wish to legalize even though they remain illegal at the federal level. Unless Congress revises the CSA, the Court revisits its federalism precedents, or the attorney general deschedules the drug, the anticommandeering principle will at some point run up against the preemption power as the cannabis industry matures.

Classifying Drugs

In the meantime, the recent spate of marijuana legalizations at the state level, and the apparent absence of calamitous consequences from these reforms,231Close have spotlighted an old set of questions. Does it make any sense to penalize “soft drugs” like marijuana or magic mushrooms as harshly as “hard drugs” like heroin or fentanyl? For that matter, does it make sense to penalize marijuana at all when substances such as alcohol and nicotine are legal?

To millions of Americans who experimented with pot, psychedelics, and other mind-altering drugs in the late 1960s and 1970s, the answer seemed plain. Expert committee after expert committee confirmed through objective research what they felt they already knew from subjective experience: marijuana is basically benign in most settings, and certainly more benign than booze. Blue-ribbon bodies had reached similar conclusions in prior periods, most notably the Indian Hemp Drugs Commission in the 1890s, the Panama Canal Zone Governor’s Committee in the 1920s and 1930s, and the La Guardia Committee in the 1940s.232Close In a 1966 essay titled “The Great Marijuana Hoax,” the poet Allen Ginsberg lamented that these “medical-juridic reports . . . giving marijuana a clean bill of health” had fallen into obscurity.233Close

Reinforcement was about to arrive, however. The U.K. Advisory Committee on Drug Dependence announced in its 1968 Wootton Report that “[t]here is no evidence that [cannabis use] is causing violent crime or aggression, anti-social behaviour, or is producing in otherwise normal people conditions of dependence or psychosis,” and “it is also clear that, in terms of physical harmfulness, cannabis is very much less dangerous than the opiates, amphetamines, and barbiturates, and also less dangerous than alcohol.”234Close These findings were echoed in short order by the LeDain Commission in Canada,235Close the Baan and Hulsman Commissions in the Netherlands,236Close and the Baume Committee in Australia,237Close as well as a major study of Jamaican ganja users sponsored by the U.S. National Institute of Mental Health.238Close In the United States, the Kennedy administration acknowledged in 1962 that “the hazards of marihuana per se have been exaggerated.”239Close Five years later, President Lyndon B. Johnson’s crime commission advised that while marijuana “is equated in law with the opiates . . . the two have almost nothing in common.”240Close Another five years later, President Nixon’s National Commission on Marihuana and Drug Abuse, known as the Shafer Commission, concluded that intermittent use of marijuana “carries minimal risk to the public health” and that “neither the marihuana user nor the drug itself can be said to constitute a danger to public safety.”241Close

These studies appeared just as the country was exiting the period from the 1930s through the 1960s when, as Lewis Grossman has recently shown, “Americans’ confidence in government health regulators, the medical establishment, and pharmaceutical companies was at its peak.”242Close Although the studies varied in many particulars and couldn’t rule out the possibility of long-term risks or distinctive dangers for adolescents, they agreed that marijuana does not produce physical dependency, does not lead to lethal overdose, and poses little threat to most adults. From a public health perspective, as one influential scholar quipped in 1970 about the overall body of evidence, “It would seem clear . . . that we should treat marijuana considerably more respectfully than we do sugar candy.”243Close Former U.S. Supreme Court Justice Tom Clark published an article two years later urging repeal of the marijuana laws because, “if we are to be honest with ourselves,” the laws “have no basis in fact for their further existence. The findings are all to the contrary.”244Close

These studies, moreover, debunked the rationales for marijuana prohibition that the government had touted for decades. In the 1930s, the Federal Bureau of Narcotics (FBN) and state officials described marijuana as a “killer weed” that induces violent conduct directly.245Close In the 1950s, the FBN described marijuana as a “stepping stone” to heroin and other hard drugs that induces criminal conduct indirectly, “a rationale that the Bureau had expressly rejected in 1937.”246Close In the late 1960s and early 1970s, the Nixon administration described marijuana as the source of stupefying lethargy and passivity, an “amotivational syndrome” that threatened capitalist production and inverted the image of frenzied bloodlust conjured a generation before.247Close

Each of these theories had lost credibility by the mid-1970s. By then, most proponents of prohibition limited themselves to claims about temporary psychom*otor deficits, the possibility of psychological dependency, or special risks associated with heavy consumption over time. The feared short-term effects, however, largely boiled down to the truism that “[a]ny psychoactive drug is potentially harmful to the individual,”248Close depending on context, while the feared long-term effects could neither be proved nor disproved. And the clear pattern of shifting rationales for criminalization, empirically unfounded propaganda, and, as one judge put it in 1974, “official disdain of objective marijuana research”249Close had eroded public trust in the prohibitionist narrative.

Compared to the hierarchy of drug dangerousness implied by the leading research studies and internalized by the generation that came of age in the 1960s and 1970s, the drug classifications written into federal and state law were hard to fathom. Nearly every state adopted drug laws in the mid-twentieth century that, in line with the 1932 Uniform Narcotic Drug Act, classified marijuana as a narcotic and criminalized simple possession.250Close The federal government had a chance to rethink this approach in 1970, when it developed a comprehensive regime for scheduling drugs in the CSA. As a political compromise, Congress placed marijuana in the CSA’s most restrictive schedule—reserved for substances with “a high potential for abuse,” “no currently accepted medical use,” and “a lack of accepted safety for use . . . under medical supervision”251Close—on what was understood to be a provisional basis, until the Shafer Commission had a chance to complete its work. But when the Shafer Commission recommended decriminalization two years later, President Nixon dismissed its report and Congress took no further action. Marijuana remained stuck in Schedule I along with heroin, LSD, mescaline, magic mushrooms, and various other hallucinogens, amphetamines, and opiates.

Disappointed reformers saw this scheme as a reflection of, and roadmap to, the ideological biases and special interests that dominated U.S. drug policy. The Consumers Union, for instance, assailed the official classifications in 1972 as “illogical and capricious,” “shocking” in their equation of marijuana with heroin, and susceptible to the suspicion that “corrupt legislators” had created them “to protect the tobacco and alcohol industries.”252Close In fact, the CSA was a boon not only to those industries but even more so to domestic pharmaceutical manufacturers—amounting, in the view of historian Kathleen Frydl, to “one of the most remarkable feats of trade protectionism in modern U.S. history,”253Close as the act placed no limits on their production of licit painkillers while banning foreign imports of competing chemicals. Legacies of racism also shaped a number of the CSA’s categories, as the next chapter will explain.

Whatever unholy mix of forces lay behind it, the CSA’s classification matrix struck critics at the time as a kind of Bizarro World of drug regulation: not merely outdated or overbroad but, in important respects, the opposite of what rational risk assessment called for. And so it still seems to many. When a team of U.K. drug experts rated twenty psychoactive drugs in 2010 based on their aggregate harm to users and to others, the highest-scoring drug by far was alcohol (in part because it is so widely used). Heroin came in a distant second. Cannabis was determined to be less than a third as harmful as alcohol, and magic mushrooms the least harmful drug of all.254Close Although the construction of any such index is bound to be vexed, the basic conclusion that marijuana and mushrooms are safer for most users and third parties than alcohol, cigarettes, and heroin is difficult to dispute.

The drug classifications embedded in the CSA and its state analogues are so bizarre, a growing chorus of commentators began to argue in the late 1960s and 1970s, as to violate the Constitution. Specifically, these commentators argued that misclassification on such a scale violates the Fourteenth Amendment’s Equal Protection Clause by laying “an unequal hand on those who have committed intrinsically the same quality of offense.”255Close Marijuana was once again the focus of critique. Compared to the cluster of substantive due process claims reviewed in chapter 1, these equal protection claims were simple and unvarying. The U.S. Supreme Court unanimously instructed in 1964 that judges reviewing equal protection challenges “must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose.”256Close And what could be more unreasonable than lumping a mild euphoriant with heavy narcotics in a health-oriented statute, while giving alcohol and nicotine a free pass?

Reclassifying Cannabis (and Cocaine and Ecstasy) in Court

In a series of cases from the late 1960s and 1970s, a dozen-odd courts accepted this argument and either held or implied that states’ classification of marijuana as a narcotic, or together with narcotics, violates the Equal Protection Clause. These courts employed the weakest form of Fourteenth Amendment scrutiny, known as rational basis review, because no fundamental rights or specially protected groups were deemed to be at issue. And they found that the laws couldn’t meet even this low bar. Drawing on the latest medical research, these rulings detailed the relative harmlessness of marijuana, acknowledged the widespread disillusionment and disobedience caused by its legal status, and were emphatic in concluding that its categorization as one of the most dangerous drugs flouted basic norms of rationality.

The first such rulings came out of Colorado. In the mid-1960s, a Colorado trial judge suggested that the classification of marijuana as a narcotic violated equal protection, before opting to invalidate the state Narcotic Drugs Act on an alternative ground (that it failed to specify all the drugs to which it could apply). Several years later, another Colorado trial judge held that this same classification was unconstitutionally arbitrary based on the uncontradicted testimony of the defendant’s expert witness. The state supreme court reversed both of these rulings without addressing their empirical premises.257Close The second supreme court opinion ended with the anti-Lochnerian disclaimer, “Although we, as individual judges, may disagree with the legislative classifications and the penalties prescribed for the several violations, we, as courts, cannot . . . invalidate the law in order to bend the legislature to our views.”258Close

The Washington Supreme Court took the next step in 1970, finding that marijuana fell outside the state Narcotic Drug Act in light of the medical “consensus” that “cannabis is not a narcotic” and the equal protection problems that would be raised by a criminal classification “contrary to all the evidence.”259Close The following year, the Illinois Supreme Court became the first to strike down a statute on this basis in People v. McCabe. After reviewing the “voluminous materials” presented by the parties on the effects of marijuana compared with those of other drugs, the McCabe majority concluded that its classification under the state Narcotic Drug Act lacked “any rational basis.”260Close

Judicial pushback accelerated after McCabe. Over the course of 1972, three of the six Michigan justices participating in People v. Sinclair endorsed McCabe’s equal protection rationale;261Close Justice Kobayashi defended this view at length in his Kantner opinion and added that “a more reasonable and rational approach in this area would be to regulate marijuana in a manner similar to that of alcohol or tobacco”;262Close the New Jersey Superior Court ruled that marijuana does not count as a narcotic under the state Motor Vehicle Act;263Close the Oklahoma Court of Criminal Appeals ruled that a trial judge committed “clear” legal error in instructing the jury that marijuana was a narcotic;264Close and the federal district court for the Eastern District of Virginia ruled that the classification of marijuana as a narcotic under Virginia law is “violative of the equal protection clause” given, among other things, “the vast weight of medical authority” and “common knowledge” that marijuana is not physically addictive.265Close In the nation’s capital, a trial judge launched an indirect attack on the rationality of the cannabis laws by construing the District of Columbia’s prohibition to cover only one strain, and dismissing all charges in which possession or distribution of that particular strain hadn’t been proved—as it never was.266Close “By the end of 1972,” reformers enthused, “there appeared to be growing judicial recognition . . . that marijuana is not a narcotic and, in fact, is a relatively harmless substance.”267Close

In hindsight, however, we can see that 1972 was not the start of a wave so much as its crest, for reasons I will turn to shortly. Some jurists continued to build on McCabe. A Massachusetts trial judge ruled in 1976 that the state’s “erroneous classification” of cocaine as a narcotic violates equal protection. All the “myths” that lay behind this classification, the judge wrote, “are now destroyed by reliable scientific data,” which show alcohol and nicotine to be more dangerous.268Close Or as one of the defense attorneys put the point more colorfully in a press interview, the legislators who classified cocaine didn’t “know their ass from second base when they pass[ed] these laws.”269Close An Illinois appellate court reached the same conclusion in 1981 and was quickly overruled.270Close As far as I can tell, the Massachusetts case remains the only one in which a cocaine charge was thrown out on such grounds. Harvard law professor Alan Dershowitz hailed the opinion at the time as “a very important and heroic first step toward eliminating victimless crimes.”271Close

In the more familiar context of cannabis, the high court of the Trust Territory of the Pacific Islands, which the United States administered at the time, “agree[d]” with McCabe in 1974 in striking down a Micronesian law that penalized marijuana offenses more severely than opium and heroin offenses.272Close A Florida trial judge urged the state supreme court in 1976 to reconsider its precedents on pot, as “the evidence clearly indicates that marijuana does not represent any serious threat to the well-being of American society” and that its criminalization “does greater harm to the youth of our nation than marijuana could ever do.”273Close Two years later, the same judge went ahead and held that the state’s marijuana ban is “without a rational basis,” only to be summarily reversed.274Close Also in 1976, a Connecticut trial judge issued the most comprehensive ruling to date on the irrationality of classifying marijuana with harder drugs and was likewise reversed by the state supreme court. After documenting the many ways in which the effects of marijuana are different from and milder than the effects of drugs such as amphetamines and barbiturates, the judge warned that “the dangers of an irrational classification undermine a fundamental respect for the law” while imposing “staggering” costs on individuals and society.275Close In addition, the D.C. Superior Court became the first to accept a medical necessity defense against a marijuana possession charge, in a case involving a glaucoma sufferer whose ophthalmologist testified that he would go blind without regular use of the drug. Whereas the defendant had established a compelling need for the substance, the judge reasoned, “research has failed to establish any substantial physical or mental impairment caused by marijuana.”276Close

The last gasp of this line of rulings came from an unexpected source. In 1988, the chief administrative law judge of the Drug Enforcement Administration (DEA), Francis Young, issued an opinion recommending that marijuana be moved from Schedule I of the CSA to Schedule II, reserved for drugs that have a high potential for abuse but also a currently accepted medical use. Four years earlier, Young had recommended that MDMA (also known as Ecstasy or Molly) be placed in Schedule III on account of its safety in psychiatric practice and modest abuse potential. Young’s marijuana opinion came in response to a rescheduling petition that NORML had filed way back in 1972, on which the DEA and its predecessor, the Bureau of Narcotics and Dangerous Drugs, had dragged their feet for as long as the courts allowed. It “is clear beyond any question,” Young observed, “that many people find marijuana to have, in the words of the [CSA], an ‘accepted medical use’ ” for treating diseases such as cancer. Schedule I is therefore inapposite unless one refuses to credit these patients’ lived experiences as a valid source of evidence. “In strict medical terms,” Young further observed, “marijuana is far safer than many foods we commonly consume” and indeed “is one of the safest therapeutically active substances known to man.”277Close

The administrator of the DEA overruled this opinion, just as he had overruled Young’s previous opinion on MDMA.278Close In so doing, he chided Young for relying on the “pro-marijuana” testimony of patients and doctors who had used or prescribed the drug, rather than the testimony of government experts. And he described Young’s analysis as not merely mistaken but “irresponsible” and “appalling”—so much so that Young had “failed to act as an impartial judge in this matter.”279Close The administrator seemed oblivious to the irony of such an allegation coming from the head of an agency that simultaneously schedules drugs and enforces criminal drug laws, creating a structural bias in favor of criminalization, and that has never once granted a rescheduling petition not submitted by a pharmaceutical company.280Close

Reining In Rational Basis Review

By the time Judge Young questioned the validity of marijuana’s scheduling, the regular (nonadministrative) judiciary had already abandoned this project. The New Deal settlement stood not only for the expansion of federal regulatory authority, as explained earlier, but also for the diminution of equal protection review. Over the middle part of the twentieth century, the Supreme Court developed an approach to equal protection analysis that reserved heightened scrutiny for a small set of fundamental rights and historically freighted forms of discrimination, above all racial discrimination. Every other claim of unequal treatment was to be tested for mere “rationality.” In this way, it was hoped, the most pernicious forms of government discrimination would be checked by courts while policymakers would otherwise be free to fashion a modern administrative state. If the justices in Raich who rejected a federalism challenge to the CSA saw themselves as defending the broad scope of federal power won in the 1930s, the judges who rejected equal protection challenges to marijuana’s classification saw themselves as defending the other half of the New Deal settlement: judicial deference to legislative and executive judgments about which social problems to tackle in which ways, without regard for the resulting distribution of policy burdens and benefits.

Many of the key opinions in this line of cases were strikingly candid about the irrationality of marijuana’s classification, even as they maintained that role fidelity compelled them to uphold it. The Colorado Supreme Court, for instance, acknowledged in 1974 in evaluating a challenge to marijuana’s classification as a narcotic that, “[w]ithout an authoritative exception, those medical authorities who have examined marijuana have concluded that it has no narcotic properties”; that the “legal and sociological commentators are in agreement as well”; and that the continued classification of marijuana as a narcotic undermines the “integrity” of the law, invites “overzealous police practices,” and imposes a “heavy burden” on courts and prison officials. Notwithstanding these seemingly devastating critiques, the majority concluded that it was “require[d]” to “defer to the legislative body as the proper forum for the resolution of this controversy.”281Close The Hawaii Supreme Court acknowledged in 1975 that the argument that alcohol is more dangerous than marijuana has “considerable persuasive power,” before admonishing that the notion that courts may “hold laws unconstitutional when they believe the legislature has acted unwisely . . . has long since been discarded.”282Close The Michigan Court of Appeals acknowledged in 1978 that “[m]any of the former ‘truths’ about marijuana have been shown to be myths,” before capitulating and “urg[ing] the Legislature to reevaluate the entire marijuana ‘problem.’ ”283Close The U.S. Court of Appeals for the Second Circuit’s influential opinion in United States v. Kiffer acknowledged “[i]t is apparently true that there is little or no basis for concluding that marihuana is as dangerous a substance as some of the other drugs included in Schedule I,” before upholding marijuana’s placement within that schedule.284Close A number of forceful dissenting opinions echoed these same themes, differing only in the judges’ ultimate vote to strike down rather than sustain the classification.285Close

The lawyers bringing these equal protection challenges relied heavily on two U.S. Supreme Court cases. In Skinner v. Oklahoma, the Court in 1942 invalidated a state law that provided for the forced sterilization of individuals with two or more convictions for grand larceny while sparing those with two or more convictions for embezzlement—“a clear, pointed, unmistakable discrimination” without logical foundation.286Close In McLaughlin v. Florida, the Court in 1964 invalidated a state law that prohibited unmarried interracial couples, but not other couples, from cohabitating—a distinction that was inconsistent with the statute’s ostensible purpose of preventing adultery and fornication.287Close Even if particular features of these laws had led the Court to apply a heightened standard of review, both opinions contained language that could be read to require courts to scrutinize the reasonableness of all substantive criminal classifications.288Close Most judges in the 1970s, however, declined to extend Skinner or McLaughlin beyond the context of the eugenics movement and the Jim Crow South. Skinner became a Fourteenth Amendment oddity, converted over time from an equal protection ruling into a substantive due process precedent.289Close McLaughlin became an anti-apartheid case, with little bearing on laws that make no explicit reference to race.

Rather than build on Skinner or McLaughlin, the courts that rejected equal protection challenges to marijuana’s classification pointed to ongoing controversy and uncertainty around the drug—and insisted that the existence of such controversy and uncertainty was itself sufficient to satisfy rational basis review. Kiffer is representative in this regard. The Kiffer court, once again, all but announced that marijuana’s placement in Schedule I of the CSA makes no sense. Yet even if the argument that marijuana is relatively safe “may be persuasive,” the court observed, “it is not undisputed.” For all the studies suggesting that marijuana is significantly less dangerous than other Schedule I substances such as heroin and than unscheduled substances such as nicotine, “there is a body of scientific opinion that marihuana is subject to serious abuse in some cases, and relatively little is known about its long-term effects.” The government did nothing irrational, accordingly, in electing to take a “cautious approach” by placing marijuana in the most restrictive schedule.290Close As another widely cited opinion put it, “The continuing questions about marijuana and its effects make the classification rational.”291Close Similar logic was used to reject challenges to the rationality of classifying cocaine as a narcotic, even though cocaine is a stimulant and this classification therefore rests on “the slender threads of minimum rationality.”292Close

The courts further noted that even if drugs like heroin and nicotine really are much more destructive than marijuana, equal protection doctrine doesn’t require a legislature to “ ‘cover the waterfront.’ It may attack different aspects of a problem in different ways, or go about the matter piecemeal.”293Close Under these principles, the Connecticut Supreme Court explained, it’s irrelevant that marijuana may be a “relatively slight . . . health hazard.” The legislature can still “rationally conclude that traffic in such a drug should be prohibited by a seven-year penalty.”294Close

To appreciate just how limited—and arational—was the model of review that allowed judges to concede that marijuana seems harmless while accepting its categorization as one of the most dangerous of drugs, consider this passage from a more recent opinion upholding marijuana’s inclusion in Schedule I of the CSA:

It is hard to imagine how a challenger could ever satisfy this standard. There would need to be near-perfect agreement among all actors credible to courts as to a drug’s blatant misclassification. Given the complexity of drug science and drug politics, as well as the benefits that the status quo affords to powerful interests ranging from law enforcement agencies to pharmaceutical companies to social conservatives, the prospect of such consensus is a pipe dream.

As acutely as any set of cases in the late twentieth century, the constitutional challenges to marijuana’s scheduling tested whether rational basis review would do any work in the face of apparent arbitrariness. And the answer that won out in the 1970s was: no. Even as it became easier in this period to challenge federal agency rulemakings as arbitrary under the Administrative Procedure Act,296Close it became harder to challenge criminal prosecutions as arbitrary under the Constitution. If the courts’ treatment of substantive due process challenges to drug prohibition helped narrow the path to strict scrutiny, the courts’ treatment of equal protection challenges to drug classification helped ensure that rational basis review would remain a rubber stamp.

Reasons Stated and Unstated

In fact, there was a coherent policy rationale behind the criminalization of cannabis. The main reason why marijuana remained in restrictive drug schedules throughout the 1960s and 1970s, the historical record suggests, had much more to do with fears of social dislocation and decay than with fears of medical harm. This point was widely appreciated at the time. The leading legal tomes on marijuana prohibition, familiar to all judges who issued rulings on the topic, bore it out in painstaking detail. Kaplan’s book Marijuana: The New Prohibition explained how marijuana had “become the symbol of a host of major conflicts in our society” along cultural, ideological, and generational lines, which thwarted “any attempt at a rational solution to the problem.”297Close Bonnie and Whitebread’s article “The Forbidden Fruit and the Tree of Knowledge” documented how the marijuana laws were “irrational,” in that they failed to advance their putative ends, but nonetheless responded to a set of widely held “moral” intuitions.298Close The Shafer Commission described how many Americans felt “threatened” by marijuana because of its association with countercultural challenges to “the dominant social order”—reflected in “the adoption of new life styles,” “campus unrest,” “communal living, protest politics, and even political radicalism”—rather than because of any well-founded concerns about its effects on health or safety.299Close

The problem for the government attorneys who defended marijuana’s classification in court was that this threat-based account of its legal status, while persuasive as a descriptive diagnosis, was uncomfortably repressive in character, impervious to counterevidence, tinged with racism and religious dogmatism, and inconsistent with the statutory language, which demanded that drug scheduling be based on medical criteria, not moral sentiment. These features only became more problematic after the Supreme Court clarified in 1973 that “a bare [legislative] desire to harm a politically unpopular group,” such as “hippies,” “cannot constitute a legitimate governmental interest.”300Close The government attorneys therefore shunned this line of argument, limiting their equal protection defense to a public health framework in which their claims looked transparently weak. The goal wasn’t so much to persuade judges that marijuana causes significant damage to bodies or brains as to sow doubt about the emerging consensus to the contrary and, in so doing, to divert attention from the real drivers of prohibition.

On the other side of the litigation, the constitutional challengers also pulled their punches. Almost all of their arguments about marijuana’s misclassification focused on its relative lack of dangerousness and, after the 1980s, on its potential utility for pain relief and other medical applications. The dominant trope in their brief for irrationality was harm: the (modest) amount of physical and psychological harm caused by marijuana; the (substantial) amount of physical and psychological harm caused by other drugs in the same statutory schedule; the economic and social harm caused by enforcement of the marijuana laws; the value of marijuana for relieving harm caused by medical ailments. Entirely ignored were the “recreational” reasons why most people consume cannabis and other psychoactive substances, reasons that have less to do with the avoidance of discomfort than with the pursuit of pleasure, adventure, alterity, insight, or the like.

In addition to downplaying these affirmative dimensions of marijuana use, the challengers also downplayed the difficulties of assessing drug dangers so as to avoid conceding any health risks that might be seen to satisfy rational basis review. The result was a constitutional stance that legitimated the always unstable medical/recreational divide, overstated the degree of scientific certitude, and undersold the case for reform. Banning a substance will invariably appear more reasonable if the benefits that most users believe they derive from it are simply put to the side.

In the absence of any honest account of the nonmedical motivations for illicit drug taking, the legal debate became increasingly stilted and surreal. One of the DEA’s most recent denials of a petition to reschedule marijuana incorporates an analysis by the Department of Health and Human Services (HHS) of the drug’s psychoactive effects. The analysis begins, disarmingly, by explaining that marijuana use is “pleasurable to many humans” and that among the most “common subjective responses” are “relaxation, increased sociability, and talkativeness”; “increased merriment and appetite, and even exhilaration at high doses”; “heightened imagination, which can lead to a subjective sense of increased creativity”; and “enhanced sensory perception, which can generate an increased appreciation of music, art, and touch.” HHS then proceeds to characterize all these effects not as evidence of marijuana’s positive attributes, to be weighed against its downside risks, but rather of its “abuse potential”—and hence its suitability for Schedule I and maximal punishment under the CSA.301Close

In this discourse, the pursuit of pleasure hasn’t just been marginalized; it has been pathologized. Illicit drug users must be saved from experiences that may seem enjoyable and rewarding but that, through this very mechanism, are sources of seduction and corruption. And this holds even for drugs that produce no physical dependency. Euphoria is “the devil’s work.”302Close It is only through the trivialization of marijuana’s hedonic benefits under the “recreational” rubric, together with the transvaluation of many of those benefits into costs, that a complete criminal ban could hope to come across as rational. For all their zeal and creativity, the drug laws’ constitutional challengers never questioned this pillar of prohibitionist ideology. Just as the attorneys defending these laws obscured the main reasons why politicians enact them, the attorneys attacking these laws obscured the main reasons why people defy them.

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