Ilya Shapiro, "High on Federalism: Marijuana's Challenge to State-Federal Regulations"
With commentary by Professor Epstein
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues and practiced at Patton Boggs and Cleary Gottlieb. Shapiro is the co-author of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution (2014). He has contributed to a variety of academic, popular, and professional publications, including the Wall Street Journal, Harvard Journal of Law & Public Policy, L.A. Times, USA Today, Weekly Standard, New York Times Online, and National Review Online. He also regularly provides commentary for various media outlets, including CNN, Fox News, ABC, CBS, NBC, Univision and Telemundo, the Colbert Report, and NPR. Before entering private practice, Shapiro clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit. He holds an AB from Princeton University, an MSc from the London School of Economics, and a JD from the University of Chicago Law School (where he became a Tony Patiño Fellow).
Richard A. Epstein is the inaugural Laurence A. Tisch Professor of Law at NYU School of Law. He has served as the Peter and Kirstin Bedford Senior Fellow at the Hoover Institution since 2000. Epstein is also the James Parker Hall Distinguished Service Professor of Law Emeritus and a senior lecturer at the University of Chicago. He has been a member of the American Academy of Arts and Sciences since 1985 and has been a senior fellow of the Center for Clinical Medical Ethics at the University of Chicago Division of Biological Sciences since 1983. He was a winner of the Bradley Prize in 2011. Epstein has written numerous articles on a wide range of legal and interdisciplinary subjects, as well as over 15 books; his most recent is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (Harvard U. Press, 2014). He has also edited (with Catherine Sharkey) Cases and Materials on the Law of Torts (11th edition, 2016). He writes a weekly column for Defining Ideas and is a contributor to Ricochet.com and Forbes.com.
Presented by the Federalist Society on May 3, 2018.
Transcript
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Host: So I'll just give them short introductions. Ilya Shapiro is a fellow in constitutional studies at the Cato Institute where he edits the ...
Ilya Shapiro: Please, senior fellow. They don't pay us enough so they have to pay us in titles.
Host: Oh, all right. Senior fellow at the... it is one of many types of fellows.
Ilya Shapiro: There are enough senior fellows in Washington.
Host: Right. Ilya Shapiro is a senior fellow at the Cato Institute where he...
Richard Epstein: Very senior fellow!
Host: ...is the editor-in-chief of the Supreme Court Review. And he writes probably like an amicus brief and a blog post every week or a blog post everyday and an amicus brief every week.
Ilya Shapiro: I work with associates for whose work I'll proudly take credit.
Host: He is a graduate of this law school where one of his teachers was Professor Richard Epstein who needs no introduction. So I'll just let Ilya Shapiro take over.
Ilya Shapiro: Well, I'm glad to be back. I'm glad I haven't worn out my welcome. Thank you to the Federalist Society for paying for me to travel to my 50th law school reunion. It's an honor to have Richard comment on my talk. It took me about a decade after I graduated. He told me right away to start calling Richard, but it took about a decade. Once I started having to edit one of his briefs or articles that we're publishing at that point I'm like, okay, at this point I can, I can do that. So I guess the topic is now what the Romans had to say about marijuana cultivation or perhaps just Justinian perspectives on sanctuary cities maybe. Anyway, you know, I like to think that I bring some of intellectual integrity to this subject because I've never actually tried marijuana that might make me look suspect for other reasons but so be it. Randy Barnett, for that matter, who argued Raich v. Gonzalez also hasn't tried marijuana. So this is... take that for what it is. I also feel in the last year or so like I'm an underachieving member of the Class of 2003. You know, one of my classmates is Deputy Solicitor General and another one just got nominated for the Fourth Circuit.
Richard Epstein: Who's that?
Ilya Shapiro: I mean, I'm here still being just a senior fellow for a decade.
Richard Epstein: Who got nominated?
Ilya Shapiro: Jay Richardson.
Richard Epstein: Oh! Smart fellow.
Ilya Shapiro: Yeah... (laughter) Right. So
Ilya Shapiro: marijuana is one of, I'm told by the Federalist Society that they didn't actually have a talk on federalism all year. So this area is one of many where we're seeing increasing tensions between federal and state law or policy views or what have you. In the last decade, this isn't just under Trump, it's not even just under Obama. I think it really started under under Bush that you have state lawsuits against the federal government. I mean, that sort of indicates a breakdown in our separation of powers and federalism and constitutional structures generally. You shouldn't have to, these different governments shouldn't have to sue each other to have the proper observance of the Constitution's structural limits. But nevertheless, whether you're talking sanctuary cities or guns or healthcare or a whole host of areas. And I'm happy to go into any and all of those in Q&A.
Ilya Shapiro: I had an op-ed in the Wall Street Journal a couple months ago about the Jeff Sessions' suit against California where I think the federal government actually is in the right two out of three of the provisions. But regardless, I think it's healthy that people are having a renewed interest in federalism, whether it's fair-weathered or not. Even, hey, minority leader Chuck Schumer all of a sudden is a federalist and wants the states to be able to do what they will in this area. It's not surprising really that our elected officials are finally starting to catch up because of the latest polls, October of last year, both Gallup and Pew showed that over 60 percent of Americans favor of legalizing marijuana, Gallup's with 64 percent. That's up about four percent from a year before that. This policy area has seen the most rapid the second most rapid shift in public opinion ever in American history.
Ilya Shapiro: Second only to gay marriage. Let's see 19... 2015, 2013 was the first time that a majority of Americans supported legalizing. That was up for 32 percent in 2002 and only 17 percent in 1991. So in 25 years we've gone from 17 percent to 64 percent. That's huge, right? And this is across demographics. Whether you look, break it down by age group or political party or anything else, rural/urban, what have you. The trend lines all go in that same direction. Moreover, 94 percent of Americans approve of medical marijuana prescribed by a doctor. 75 percent, including 59 percent of self identified Republicans, say the federal government should not prosecute marijuana use in the states where that is legal either medically or recreationally. So that's, you know, seems to be uncontroversial. And so obviously Congress is a lagging indicator. You know we can speculate about why we've seen that a policy or that polling shift... I'm not here to advocate policy reform necessarily or to provide kind of a sociology of this, but I think some of it has to do with incarceration rates and how half of federal, half of federal offenders are drug offenders, about a quarter of that are for marijuana. Racial disparities in that, despite a relatively constant levels of use of marijuana between whites and blacks, for example, blacks are nearly four times as likely to be arrested. On all these kinds of statistics as well as people seeing that, oh, marijuana, that's you know as more and more states legalize and there's more time passed.
Ilya Shapiro: It's not like all of a sudden we have "reefer madness," I guess to quote the title of a movie going on almost 100 years. But anyway that's just a little bit of colorful background. We're here to talk about the law, right? And what is the relationship of the federal to the state governments? It seems like it's an open and shut case, right? We have the Supremacy Clause. Article VI, Clause 2 says that when state and federal policies are in conflict, the federal one trumps. I mean, that should be, that should be it, right? Of course, there's two caveats on the Supremacy Clause. One, or at least that are relevant to this discussion, one is that there has to be a valid constitutional basis for the federal law in the first place. And the powers of the federal government, at least as it is written in the Constitution, are limited and enumerated.
Ilya Shapiro: Raich v. Gonzalez (2005), however, reiterated that the federal government can regulate plants that you grow in your backyard for your own use. And so that qualifier in the Supremacy Clause for now at least isn't a limitation on federal authority. And you probably won't be surprised to know that I disagree with that opinion either the majority or Scalia's concurrence. But anyway, that's where we are. But the second qualifier is really interesting, and that is that even in the areas where the federal government is lawfully regulating or legislating, it has to do its own dirty work. It can't force the states to enforce federal law. This is the anti-commandeering pivot and I don't know, you might've heard that this was a made up by the Court in 1992 and then your in the Printz case (1997) in the New York (1992) case, but it's actually been stated going back to the mid-1800s.
Ilya Shapiro: And so there, there is for the first time in 20 years, now there's a case before the Supreme Court involving the anti-commandeering doctrine and sports gambling, another area of federal-state tension. The case of Murphy v. NCAA. Chris Christie obviously is no longer governor so it's no longer Christie v. NCAA, as it had been known. I used to joke that that was kind of like the Iran-Iraq war; you kind of want both sides to lose, right? But anyway, the question there is Congress didn't criminalize sports gambling. This is not a Raich issue. Commerce Clause issue. They said that states cannot facilitate it. Well, what does that mean? State can't repeal its own law? It can't pass its own law? That would be bizarre. And in fact that came up during oral argument where I don't think it's going to be a five- four decision. Lots of justices who are concerned about, well, why are you doing an end run, you know, if you want to regulate or criminalized, that's one thing.
Ilya Shapiro: But why are you forcing the states to do your dirty work? So anyway, that's why there is this tension and why we have effectively Schrodinger's weed that's both legal and illegal at the same time. And for that matter, Raich did not slow down state legalization campaigns. California was the first state back in 1996 to legalize for medical purposes. By the time Raich came around in 2005, 10 states have legalized medical marijuana. Since then 19 more have done so. There are now 29 states. That's the majority for those of you counting at home, and 16 have decriminalized, that includes five states that don't even have legal medical marijuana, but they've decriminalized their marijuana laws, meaning small possession infractions are treated like speeding tickets rather than criminal offenses. And now nine other states plus the district of Columbia have legalized outright for recreational purposes.
Ilya Shapiro: Here's an interesting bit of trivia. Earlier this year, Vermont became that ninth state and it was the first one that did so legislatively. All of the other ones that legalized did so in referenda. And we're talking about the that statistic where 94 percent of Americans don't want the feds prosecuting marijuana in states that have legalized. Well, it turns out the last four years now, there's been an appropriations rider on the Justice Department saying that they cannot prosecute in those states that have legalized for medical purposes. At least if you're lawfully using for medical purposes the feds cannot prosecute you. There was a case that went up to the ninth circuit on that question, United States v. McIntosh and the raving, left wing duo of Judges O'Scannlain and Bea ruled against the Justice Department said that Congress indeed can put that appropriation rider on and can restrict the Justice Department's enforcement.
Ilya Shapiro: Of course, aside from those very legalistic concerns, there are practical issues of federal enforcement. Only one percent of marijuana arrests annually are generated by the federal law enforcement. So there simply is not the manpower for the DEA or any other agency to go enforcing federal law. So for practical purposes, if the states don't want to cooperate, there's really not much that the federal government can do. And then beyond that practical practical concern, there's a cultural one. Robert Mikos, who's a law professor at Vanderbilt and is one of the leading marijuana constitutional scholars, if you will, talks about how states wield a private nonlegal forces or cultural shaped cultural forces that shape personal beliefs about behavior and social norms. And so if states have legalized, whether for medical or recreational purposes, then all of a sudden, you know, when Armageddon hasn't come, people see that they use, it's perhaps not something that they want the kids to be engaged in, but it's not wicked or dangerous or depraved or what have you.
Ilya Shapiro: But what does the federal law say as we've seen these kind of shifts, practical, cultural, less legal? Well, we're basically where we were under Richard Nixon when the Controlled Substances Act was promulgated and drugs were classified into one of five schedules depending on their medicinal value, potential for abuse, and psychological and physical effects on the body. Congress placed marijuana in Schedule 1 which is the most severely restricted category that's more restricted than cocaine, for example. And other drugs that are sometimes used in medical, for medical purposes. And there are only two exceptions to the federal ban. One is a compassionate use program that was started under President Carter, sort of the same state medical marijuana programs. But that program stopped accepting applications in 1992. And it's hard to find statistics on this, but the number of people, nice trivia question, a bit of trivia for your next bar review, you're really going to impress people when you tell them that it's in the number, it's in the single digits, the number of people who are using marijuana under this federal program.
Ilya Shapiro: So not really, you know, a footnote to a footnote, but it's curious that this does exist, but more importantly, there are FDA approved research studies. There were very few of those in the first decade of this century, only 11 approved in 2000-2009, but since then, 350 have been approved and that is increasing. The government, meanwhile, even under the Obama administration, which hinted at the beginning that they would adopt a softer approach, has refused to expand legal access for the same reasons. It harms users and third parties, the medical benefits are unproven, and medical marijuana is diverted to the black market and the punishments are pretty extreme. Pretty severe. Simple possession is punishable by up to a year in prison, a minimum $1,000 fine. And that goes all the way up to if you have 50 plants or 50 kilograms of pot, and that's at 20 years, a $5,000,000 fine.
Ilya Shapiro: What have states done? Okay. So in, in parallel, right, we have the Controlled Substance Act started in the '70s. Well it was only in the early 20th century that states began regulating or prohibiting marijuana. It was a kind of part of a trend somewhat racially tinge that the Chinese would use opium to lure white women into their dens and the Mexicans were all about the marijuana for similarly dastardly purposes and what have you. And so we began this criminalization, although some drugs, including cocaine were still legal when alcohol wasn't, for example. So there was some experimentation in that regard. But anyway, as I mentioned, California started medical legalization over 20 years ago and now we have 28 states, 28 more states doing that where you have kind of a common framework or a physician signs off that you have a debilitating condition that can be improved or treated with marijuana.
Ilya Shapiro: You get a card and you have to re-register from time to time, and usually you can have about one to three ounces of usable marijuana or six to 12 plants. These types of laws provided significant legal protections for qualified patients, obviously against arrest and prosecution, but also protections from landlords, employers, schools from discriminating against medical marijuana patients in some states, not all of them. Many states give qualified patients the right to recover marijuana that's been seized by state law enforcement. That is, you know, they read something, they find it's the state where it's legal. They are, the person is lawfully possessing it under their medical marijuana registration, and then they give it back. And it's interesting. Certain things the federal government could not preempt if it wanted to like the exemption from state law arrest or prosecution.
Ilya Shapiro: But once you kind of move up into these other types of regulations, at a certain point, if it wanted to, the federal government could sue the states. And there are certain states saying that you're facilitating the breaking of our law. For that matter, when that state trooper or police, that cop, hands you back your baggie of weed, in theory that's distribution for federal legal purposes. So and a few states even supply medical marijuana themselves, they have grow sites. That almost certainly could be preempted if the feds wanted to sue. Curiously, they haven't. A couple of sister states to Colorado, Nebraska and Oklahoma, have tried to sue in the supreme court a few years ago on the theory that Colorado was having these negative externalities on these other states. That case was not taken up by the Supreme Court, I think for good reason because for one thing, nothing is stopping those neighboring states for planting
Ilya Shapiro: their troopers on the border, on the interstate or wherever and catching people and things like that, some of that that has been happening, but on the other it's not like Colorado is putting up billboards in Omaha airport saying "Come to Denver for your Rocky Mountain high" or anything like that. So it's not, you know, interfering with the public policies of those states. So anyway, one curious wrinkle in Hawaii state law enforcement has been taking medical marijuana users' guns away on the pretext that they're violating federal law even if they're not violating state law. So another area where the theme here that I'll get into a little bit is how collateral consequences of this tension between state and federal law can actually be more severe than the seemingly obvious, you know, is it criminal? Is it legal? question.
Ilya Shapiro: US consumers spent six to $7,000,000,000 on legal cannabis in 2016. That's expected to grow to about 20-21 billion by 2021. The Tax Foundation, which is a tax think-tank, estimates that there's potential state annual tax revenue of up to $23 billion dollars, in the federal government about $7 billion, if projected standard taxation rates apply. So this can be a pretty big deal as far as legalization spreads. Currently there are 100,000 jobs in the state cannabis industry that's expected to grow to $250,000 by 2020. So the wave of recreational legalization started in November 2012 where voters in Colorado and Washington voted to legalize. The campaigns in these two states were very different. Law enforcement in King County, that is Seattle, one of the most populous counties in the country actually supported that initiative there saying that the drug war had failed and they wanted to use their resources for other things.
Ilya Shapiro: Uh, the Governor, Attorney General, and law enforcement in Colorado opposed legalization there, but nevertheless it passed and they agreed to abide by the voters' will. It took the justice department a fair amount of time, eight or nine months to figure out what to do about this legalization. So in August 2013 came the Cole memo, which basically set out certain priorities that the federal government would not seek preemption but would encourage a strict state regulatory scheme. As long as the states, the federal priorities would be looking at criminal enterprises, violence and firearms, access by minors, impaired driving, use on public lands, certain other kinds of very obvious federal priorities. Now, in January of this year, the Attorney General rescinded the Cole memo as well as several other lesser known Cole memos related to this area. It doesn't mean the priorities are changing all of a sudden. I don't think the US attorney in the district of Colorado is all of a sudden going to start going after college kids in their dorm rooms at Boulder rather than, you know, sex traffickers and whatever else.
Ilya Shapiro: B but nevertheless, there's some most importantly, again, is not this, you know, are they going to prioritize jaywalking versus murder, but the instability or unpredictability for the business climate. That's really where the practical effect of Sessions isn't reversed. What are some early results from Washington and Colorado? I know these are still early. Colorado's legalization didn't take full effect until January 2014. Washington's June 2014. Colorado is saving about $40,000,000 a year in enforcement costs. There seems to be either a positive or a neutral impact on rates of drug use, suicides, hospital admissions, crime, or anything else. The most recent data say that use by teenagers in Colorado is lower than before legalization. Apparently there was a slight uptick in youth consumption right after legalization, but then it quickly subsided. I don't know whether the novelty wore off,
Ilya Shapiro: it's no longer cool now that it's legal, but anyway, that's what that shows. As far as the opioid epidemic is concerned, right? Some people say that marijuana is a gateway drug to these more dangerous ones. Well in states that do have medical marijuana, deaths seemed to be 25 percent lower, dependence 23 percent lower than two states that have not legalized for medical purposes. As a matter of crime, marijuana arrests have understandably plummeted in the legalization states, but there is an increase in racial disparity. This is an interesting dynamic. It seems like white people, at least in Colorado and in urban parts of Seattle, Washington have better access to the legal market. And so conventionally blacks and Hispanics and especially young, underage blacks and Hispanics are getting picked up relatively more. So that's an interesting dynamic.
Ilya Shapiro: Even if the overall arrests are down. Other types of crime: Denver saw a two percent drop in violent crime in the first year of legalization. I'm not drawing any sort of causation for that. That's what the statistic is. Overall property crime has dropped by 9 percent in Washington. Violent crime has dropped by 10 percent. And DUI arrests in Colorado are down -- unclear whether because of some substitution effect between alcohol and marijuana and when you're high on marijuana, I guess you drive slower or you don't drive at all because you are vegging in front of the TV or what's going on here. And another thing is that THC, the active chemical ingredient in pot, doesn't work like alcohol. And so even if you measure the blood, it's not necessarily that a higher level of chemical in the blood means you're more impaired, it's when it's penetrated the blood-brain barrier. And there's a much bigger difference between novices and habitual users in terms of impairment effect with cannabis than with alcohol.
Ilya Shapiro: And so that's a public policy implementation issue. Let's see, tax revenues have overshot predicted amounts. Colorado collected 60 million in its first year, 130 million in its second year. Washington has actually the highest tax rate of any state and so the biggest black market of any legalized state. California has the second highest since it's really interesting. Some of these blue states are sort of replicating the errors of other products once they legalize. And so we still have some of the issues and less of a reduction in harm because you have this big black market still. Now diversion from legalized states to other states is indeed a real phenomenon and so that's perhaps unavoidable. Perhaps we will see more litigation over that in the future. But anyhow, John Hickenlooper, who is Colorado's governor, originally said that he tried to reverse legalization, if he had a magic wand.
Ilya Shapiro: Now says, "If I had that magic wand, I don't know if I'd wave it. It's beginning to look like it might work." So anyway, that's Colorado and Washington where we have the most data. DC, Alaska, Oregon has legalized in 2014, DC as a special case obviously because Congress in theory could trump that. It did not. Although DC legalized possession, gifting and growing but not selling. So again, you know, the economic liberties are below other ones. So there's apparently, like, again, I don't, I'm not in the market for this stuff, but apparently, and I would act. In fact, I just became a citizen four years ago. My first vote was when I was living in the district and I voted to legalize marijuana and then I promptly moved to Virginia. As many of you know, I'm an immigrant, double immigrant actually. And like most immigrants
Ilya Shapiro: I do a job that most native born Americans won't: that's defending the Constitution. I come from the shit-hole country of the USSR by the way. Anyway, so in DC apparently if you want pot, you go to some store where you buy like some milk or some flour and you get a bag for free or something like that. Interesting market. In Alaska, under state constitutional law, possession for personal use has been legal since 1975 under state constitutional law. That's kind of interesting. All right. Then in 2016 we have recreational legalization in four more states, most notably California. That's the big one; not just because of population, but because there's more marijuana production in California for the US market than in Mexico, and that's where a lot of the business innovations have developed.
Ilya Shapiro: And for medical purposes we're getting into red, red states now. Arkansas, Florida, Montana and North Dakota have legalized medically. Oklahoma decriminalized. So this is not, you know, picking off the blue states sort of thing. For that matter, during the 2016 election, apparently Independents were more likely to support legalization than either Democrats or Republicans. I don't know if that's because they're low information voters or libertarians or what have you. That's what we saw. Alright, I want to end this. What I'll just say that the president could, and I was saying this even under under Obama, use lawful executive action and discretion to reschedule or deschedule marijuana, and moving it from Schedule 1 to Schedule 3 would have a whole host of collateral benefits, like allowing the deduction of business expenses for dispensaries, resurrecting second amendment rights, taking away bars to student loans, public housing, a whole host of collateral consequences that come from the use of marijuana.
Ilya Shapiro: And this is squarely within the control of the executive and the President can direct the Attorney General to begin that process without Congress having to amend the Controlled Substance Act. So what has happened under this President and this administration. Well candidate Trump appeared to favor medical marijuana and also said that legalization should be a state by state issue. As I mentioned, plenty of purple and even red states have some degree of legalization. Jeff Sessions is one of the last of the true drug warriors. And so withdrew the Cole memos, established a task force on marijuana violence, and most disturbingly perhaps, he has pushed for greater civil asset forfeiture, so impinging on property rights even more than again affecting the criminal law. He's also tried to lobby Congress to get rid of that appropriations rider that I mentioned that the Justice Department can't enforce states that have legalized medically.
Ilya Shapiro: But that rider was still included in the omnibus spending bill. And so that continues to this day, none of the other proposed laws that are generally bipartisan... Cory Booker has gone together with Rand Paul to allow medical marijuana for federal purposes. There's a whole host of proposals, but those had been thwarted in committee by Rules Committee Chairman Pete Sessions of Texas. So I don't know what Sessions's in general have against this, but that's the way that works. And this, despite a March 2018, so it's less than two months ago, poll by Trump's pollster Tony Fabrizio that found that 77 percent of likely 2018 voters had a favorable opinion of medical marijuana including 74 percent in key Senate races, and 76 percent in competitive house districts. 68 percent of Republicans now are in favor of medical marijuana.
Ilya Shapiro: Opponents of state reform fear that legalizing in one state necessarily harms others. But I think such concerns are overstated, and you don't have to look any further than Alabama's brief in Raich v. Gonzales. Now, this is not Sessions as Attorney General. I think Bill Pryor who's now on the 11th circuit was Attorney General at the time. The Solicitor General who filed the brief was Kevin Newsom, who's also now on the 11th circuit arguing that Alabama doesn't want to legalize, but California should be able to do whatever it wants and the federal government shouldn't be involved. And of course, Chuck Schumer on April 20th, get it, 4/20 the stoner holiday, announced a bill to decriminalize, not legalize outright mind you, but just allow states to decide policy. And so, as I said, marijuana is one example of this much broader phenomenon in which states are pushing back on federal policy. I think that's generally a good dynamic that they are reasserting their sovereignty in a host of ways. Marijuana would not be the first product to be illegal in some states but not in others. And there's no reason that traditional federalism principles are equally applicable here. So in sum, marijuana use has survived and thrived in the shadow of the federal ban. And federal supremacy has its limits. Thank you.
Richard Epstein: Well, first of all I want to thank Ilya for coming back. I've regraded his paper on the Lex Aquilia; we'll talk about it after class.
Ilya Shapiro: That was my highest grade in Law School.
Richard Epstein: What?
Ilya Shapiro: I think Roman Law was my highest grade in Law School. Unfortunately all the other class dealt with American law so.
Richard Epstein: No, I mean it's not exactly difficult what to know to say about this, but let's me a give a little bit by way of background and context. One of the things that you have to ask yourself about all these issues is how has it come to pass that we have some of these political debates to begin with. If one stops to go with respect to the drugs and my favorite illustration is a discussion about the legalization of marijuana. I think it was in the Raich case, but it may have been somewhere else in which the champion is the administrative state.
Richard Epstein: Because Steven Brior got into a car and what happens is he said, well, you know, if you want to legalize this stuff, you have the example of a drug known as marisol. Marisol is essentially a marijuana derivative which is of some particular use in some particular cases, but generally speaking it's much less effective than medical marijuana especially in terms of the way in which it operates. And so his suggestion under these circumstances is not what you do is you go through the FDA procedures in order to get this approved as the therapeutic drug, and without any realization as to how monstrous and complicated that process is. Firstly to understand about medical marijuana, it is not a chemical constant.
Richard Epstein: I don't know how you ingest these things because I'm not very good at this stuff, but whatever it is, it varies from lot to lot. It contains in it a huge number of different chemicals of one kind or another, so that if you were required to go through an approval process, you would have to find every one of these chemicals and find ways to run separate clinical trials on this. In order to do it, it turns out one of the reasons why the medical marijuana tends to work is that what we do is that it is combustible and if you start to heat it, you will override any chemical changes that start to take place, and these turn out to have very powerful consequences. And if you were running this through the FDA procedures, you would have to know not only the original drugs but all their derivatives. And so I think this starts to tell you that there are basically two forms of science that we we can have out here.
Richard Epstein: One of them which Justice Pryor always championed is the sort of the supremacy of the administrative state in which neutral scientists can find out ways that solve these particular problems with procedures that last somewhat shorter than an eternity. But what's so interesting about medical marijuana is that if actually you do any kind of survey on the part of any sort of patient is that what they say is it just has a remarkable property which has not been duplicated by any other form of intervention in pain situation. So that in those states in which it's illegal, you find grandmothers, you know, sneaking into hospitals in order to get relief. And that should be, I think, a very clear warning to you that there may well be in some cases that professional science does a very good job. But on something like this where you have this constant pattern of use, generally speaking you are far better off under the circumstances to legitimate the use rather than to drive it underground and create all sorts of unnecessary human suffering of one kind or another.
Richard Epstein: So when he talks about the, how do we say about the votes on these things, I'm surprised it's as low as 75 percent not that it's as high as that. Because I think once more people know about the way in which this stuff works efficaciously, it will be fine. Now, there are the drug warriors that we have to worry about which Attorney General Sessions is one. I can again think back to what happened in the brief that the government submitted on the Controlled Substances Act and they solved the problem very quickly, they said, "Look, these people think they feel better after they take medical marijuana, but they're wrong. They really don't feel any better than they did before. And we in the drug enforcement agencies are fully aware of the fact that this a form of false consciousness. And so therefore we think that this kind of testimonial evidence was to be excluded." And again, if you start to reflect about this, it's a kind of, shall we say, government administrative imperialism, that one wants to be extremely cautious about because of the way in which the evidence is presented.
Richard Epstein: And I thought with the fact that one of the true costs of the Commerce Clause, there are many of those associated with the decision like Wickard v. Filburn is that there is no way you can now engineer the use of medical marijuana, which is what they consciously tried to do in the Raich case. One person only grew it in her garden. Somebody else only managed the transmit substances that were made within the state. Yeah, I think it was Justice Pryor who comes up with the notion that somehow you can never get yourself out. If in fact we've gone back to the original Constitution, this would have been an area in which the federal government couldn't control the interstate shipment of marijuana. What you would clearly get yourself into is a system of competitive federalism with respect to its use. And I think the diffusion of medical marijuana throughout the system would have been far greater.
Richard Epstein: So I think that part of the problem is relatively easy. The question about what is recreational marijuana is I think a much more difficult question for the following reason. It is again something which does not have a chemical constant. Now, I have been told, and I therefore take it only on hearsay, that what passes as recreational marijuana is today much stronger than the stuff that passed for recreational marijuana in earlier times. And that if anything, the question we have to worry about serious irreversible defects or effects upon individuals maybe something of greater concern today than it has been earlier. Exactly what we want to do about this I think becomes hard, not because I think marijuana itself is going to give you this kind of situation in large numbers, but what happens if you don't have to ask about other things and the question of whether we deal with their legalization or not.
Richard Epstein: I don't have an answer, but let me just mention to you that I think the single kind of most pressing problem used to be heroin, and you know, it can be done in deadly dosage which people take it and they tend not to get reversed out of it. But more importantly today we have the opioid problem, and I gathered opioids in the United States today kill probably more people than automobiles. It turns out that the reason this happens in many income classes, but a lot of it has to do with the illegal use and distribution of the stuff. Because what happens is the stuff that is sold is not chemically guaranteed, and in order to get higher and higher dosages out of this stuff, they tend to put more and more deadly compounds in there. There are no production controls of one form or another. And so you don't know what to do.
Richard Epstein: And this is a problem I think really as well is do we decide to double down on the prosecution of opioid distribution which will then drive it further underground and perhaps make it still more dangerous. Or we decide to let up on this and try to dispense it in some other method. What we commonly call this, as you said in the break that we don't allow people to buy this in vending machines, which I think would be a bad idea. We're trying to have recognized government outlets with respect to this distribution so that you can increase the number of people who will take this stuff, but we can reduce the number of, the amount of harm that will come each time the particular stuff turns out to be taken. That is a very difficult trade off to figure out particularly which way you want to go. I can recall some time ago I attended a session in which you'll have large numbers of local governments and industry officials dealing about this.
Richard Epstein: And there was a certain amount of, real kind of denial about what was going on. The industry people were basically faced by a series of government departments who said the following, "We know that some of these opioids are distributed through standard research, or standard medical procedures, and we'd like to clamp down on that distribution in one way or another in order to reduce the number of incidental deaths. But it's probably the case that 80 to 90 percent of these deaths are from opioids that are easily manufactured in the United States or elsewhere distributed candescently which have nothing whatsoever to do with the standard form of medical distribution. And so once you decide you're going to legalize, the problem is what are you going to legalize and exactly what the motive legalization is going to turn out to be. So therefore, in these particular cases, you get the following deep irony which is that most of us have libertarian implications or inclinations on these particular subjects and then when you try to put them into place
Richard Epstein: your libertarian inclinations start to talk about a system of regulating and limited distribution, which required to some extent the government network of distribution, surveillance, control and oversight. And what makes this so very difficult is as we know God is in the details and all of these particular situations, so you could look at two states side-by-side with programming limited distribution, one could be catastrophic and the other could be relatively successful, and it's often very, very difficult to figure out which of these turns out to be which. So what does this tell us about federalism? I will just end on this note because I think there should be time for questions. I think that the rationale for federalism here is actually as strong as it is everywhere else. These are not network industries for the most part are they tend to be local distribution and local consumption.
Richard Epstein: As I've indicated to seeing your way through to the bottom of the well in this case, it's extraordinarily difficult given the complications that take place. It turns out that the federalism solution of decentralized control allows for a certain degree of experimentation in which things are working. Given the level of attention that we've give to this particular problem, it seems to me that what could happen is we will see which of these schemes work and which of them do not, and hopefully the one set of states could learn from the other in a kind of cooperative and competitive kind of nature. And I think the danger having national control on this issue is that it stifles this stuff, and it also gives you the following problem: you wanted information, you have to deal with one Solicitor General, or rather one Attorney General, I think that Jeff Sessions is singularly unqualified to deal with this particular problem given his dogmatic stance. I much prefer the positions of Newsom and Pryor on this situation. And so I think that the federalism question, ironically, is easier to handle than is the substantive questions that you have to face once these federalist institutions are put into place. Well, I think we should open it up to questions. I'm going to sit down and let the man of the hour take over.
Ilya Shapiro: Just one note of curiosity. Richard mentioned, of course, and gave more background on Wickard. When you think about it, the example of alcohol prohibition is often used to compare to what we have now with drug policy and certainly at least with marijuana, and the reason why we don't have bootleggers anymore is because taxation rates are such that you can't profit off of a little black market. essentially. And I assume that that's going to be figured out in California and Washington, whatever, with marijuana as well. But think about if Wickard have been on the books before prohibition, no constitutional amendment would have been necessary, right? So that I think is one more expositor of why the federal regulation of local activity goes beyond constitutional bounds anyway. Questions?
Question 1: Thank you. I guess one question I had is how much freedom do you think executive agencies have to try to either deschedule marijuana without congressional assent or to do, or besides non-enforcement, like what could be done that doesn't require a bill?
Ilya Shapiro: Right. So the way that the CSA is structured, if the President directs the Attorney General to start the process of reclassifying or declassifying, then the Attorney General goes about doing a study and making findings that the substance is not so dangerous or addictive or physically harmful or certain criteria as to merit included in Schedule 1 really or a Schedule 2 or 3 or 5, whatever. That's the process. That's in the wall. Yeah.
Question 2: I'm wondering if you've heard anything from law enforcement officers that have had difficulty that they don't have a marijuana law, but for like a DUI or something like that, you mentioned that it's really hard to tell if someone's actually intoxicated or not. I'm wondering if there's a good mechanism to say, hey, we know this is legal, but there's also of unsafe implications that we want to...
Ilya Shapiro: I've done panels on this subject, and the most evocative to your question about law enforcement, at the University of Idaho Law School in Moscow, Idaho. I like to say that it's homecoming for me when I visit. But it's in the middle of nowhere. It's a two hour drive from Spokane, just over the state line across this desert, there's this odd road. Anyway, obviously marijuana is legal in Washington, but not, not even for medical purposes in Idaho. And I did a panel with law enforcement. There's a sheriff from Washington and a local cop from Idaho or vice versa. And you know, they try to cooperate, you know, they, you know, they don't want to go after low level use and uh, and things like this. I'm sorry, I forgot the rest of the question telling an anecdote.
Question 2: It was just about whether there's a good mechanism for...
Ilya Shapiro: Oh right, right, telling the impairment. Yeah. They, the states that have, that have legislated in this area do a blood draw and they set a certain amount of chemical in the blood.
Ilya Shapiro: And as I said, it's not very good both because you're not the most impaired when there's the highest level in the blood. So some states have tried to aggregate that based on, you know, if there's still this much in your blood, that means how much is probably potentially in your brain already affecting you or something like that. Although the science is not fully worked out there, and also another set of habitual user, you could have what seems like over the limit and yet not be impaired. So it's definitely a problem, a public policy limitation that often relies on witness testimony from the cop saying he was weaving and then this is kind of...
Richard Epstein: Is that the current law?
Ilya Shapiro: Well it goes state by state obviously, the state criminal law, but yeah, it's sort of in a state of flux.
Question 3: Yeah, I was sort of curious, if I recall correctly you were talking about if we moved marijuana from Schedule 1 to Schedule 3, this would have effects on gun rights and a slew of other things. The conditional reasoning there was not very obvious to me. Would you mind mind spelling out a little bit more about how we would see this spillover and...?
Ilya Shapiro: Oh yeah, a lot of other laws that impose legal bars tie it to the given drug being in Schedule 1 or 2. But if it's in Schedule 3 or below, then if you're in a business that is involved in a Schedule 3 or 4 or 5 drug, then you're allowed to deduct your business expenses. You're not disqualified from the Gun Control Act of 1968 from buying or selling ammunition and firearms. If you're a user of a controlled substance defined as Schedule 1 or 2. Same thing for student loan eligibility, public housing, certain banking things that you have this big barrier between 2 and 3.
Richard Epstein: Just one comment on this. This is not just about drugs; it's virtually every kind of system you have. So many years ago, my son was trying to make a movie in the city of New York and the state of awareness of terrorist activity was yellow. Then somebody decided to change this thing is to put it into orange. And so I said it's just a color shift. But it turned out he had several permits filming in Central Park and they were removed because you don't allow these activities under an orange status and you do allow them under a yellow status and so forth. So that what happens whenever you start to see these things, they have these massive ripple effects because it turns out these are very comprehensive codes or they turn around a set of classification. And what makes it somewhat uneasy is that it's enormously easy to switch the classification levels at least on some things, very difficult on others, and most of the people make the shifts up often unconscious or unaware of the collateral consequences that will take place in other sorts of areas. So if you want to change what's going on in the federal system, you start prosecuting people in bank cases. It could turn out that they lose their state licenses and things like this. And it's a common feature of regulation to have this kind of spread.
Host: We have time for one more question.
Richard Epstein: Somebody should come up with a question. Or, well, I'm going to have to think of something to say.
Ilya Shapiro: Oh, you asked me, Richard, during the break about the vending machines. Yeah I think, you know, I don't think government, federal or state, can act paternalistically for adults but it can for children and so... Regulating or prohibiting vending machines that children might have access to could be a lawful regulation by a state. Then the question of course comes out, you know, that kind of makes you think of the prototypical question to a libertarian about what do you think about, you know, that's crazy under your, your system there would be fornication in public parks. It's like, oh no, no, no.
Richard Epstein: Girl, what are you talking about?
Ilya Shapiro: You stole my punch line. Thanks very much guys.
Richard Epstein: One other point, one other point. Look, one of the other consequences you have to ask is how does this impact upon criminal law? So suppose you legalize marijuana or some other drug, and then somebody commits a crime of violence and the issue is whether or not to allow them to plead the mitigation. The fact that they use they an illegal drug which essentially reduces their self control or that they didn't want to get into probation consulting. And so my own view on that particular question is you can't have it both ways. If you want to make this thing generally legal, then it in effect cannot be allowed to be used in litigation or in some kind of ameliorative way with respect to the criminal court system. So I'm just curious...
Ilya Shapiro: That's the way the law treats alcohol. I think that's right.
Richard Epstein: You think that's right?
Ilya Shapiro: Yeah. I know Jim Ho is speaking tomorrow so make sure to ask hard questions about these sorts of issues. Of Judge Jim. We're on a first name basis. Judge Jim.
Richard Epstein: And ask him why he never took Roman Law.
Ilya Shapiro: He never took Roman Law, well that's uh... Everybody has their lost... Oh, there's one more thing before, before I go. Some people, this didn't come up in questions here, but sometimes especially if you've read what I've written on immigration law and DAPA and DACA and sanctuary cities and things like this where I have argued that the DAPA and DACA are good ideas, but the president, you need a new law to change the law and this is changing the law. And yet I say that I'm okay with the federal government not enforcing federal laws in or having different priorities in Colorado and in other places or whatnot.
Ilya Shapiro: The difference is I see DACA or DAPA as being, well, there's certain immigration things that I'm not going to get into now, but the equivalent in marijuana would be if the federal government gave out you know, get out of jail free cards for marijuana users: you are an authorized user. You will not be prosecuted. That sort of thing. Kind of a federal license that has certain benefits attached to it. Simply a policy of priority and non-prosecution or deferring action on people who aren't high level targets. That's perfectly normal and everything done in general. So anyway, that's just kind of a technical, somewhat anticlimactic point that I wanted to tease out on a general federalism issue. Thanks.
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