Although the issue of drug legalization has been dormant for sometime, many groups have recently become vocal in their efforts to change or even repeal existing drug laws. I intend in the following article to show how the Supreme Court would rule if, in fact, a state legalized drugs and, in response, the federal government outlawed the sale, use and possession of drugs within the borders of the United States. This somewhat odd conflict brings out important questions of federalism and Congress’ Commerce Clause power. I argue that the Court would find Congress’ policy constitutional.

The essential issue is whether Congress’ policy falls within its powers under the Commerce Clause powers granted by the Constitution in Article 1, Section 8, given the activities sanctioned by a state drug-legalization initiative. Following an examination of precedent, I attempt to show how the policy, in light of the state initiative, fits the historic criteria for proper congressional regulation of commerce. I then examine objections to the decision. First, I show that the decision is not an attack on federalism or a usurpation of state police power but rather an affirmation of legitimate federal power in a constitutionally authorized sphere. Second, I show that an appeal by the states to democratic theory, when fully examined, only reinforces the merits of the decision. In the end, the congressional policy is a legitimate application of its Commerce Clause power.

I begin with the cases that have shaped the Court’s current view of the Commerce Clause and the extent of the powers it grants Congress. In Gibbons v Ogden (1824), the Court defined the Commerce Clause broadly, hinting at the possibility for greater power in the future. First, the Court defined commerce as intercourse, or economic relations, between states. The Commerce Clause gives Congress the power to regulate this intercourse and set the rules under which it takes place. However, this regulatory power does not apply when the activity occurs within a state. Commerce between "man and man" or between "different parts of the same State" are free from congressional regulation. Additionally, the word "among" within the clause grants Congress the power to regulate activity that "concerns more States than one". The semantics of the definition thereby expand the power of Congress, in that a completely internal activity may not be treated as such if it "concerns" states other than the state in which the activity takes place.

A quarter century later, the Court decided U.S. v Marigold (1850). At issue was whether a federal law against counterfeiting could properly convict Peter Marigold of possessing counterfeit coin or if such powers over crime properly belong to the States. The Court found that Congress could federalize crime as a means of carrying out its constitutionally delegated powers. Justice Daniel argued: "It cannot be imputed to wise and practical statesmen...that they should have vested this high and exclusive authority... only to be rendered immediately vain and useless, as must have been the case had the government been left disabled and impotent as to the only means of securing the objects in contemplation." Furthermore he states "that no powers should be conceded to the Federal government which cannot be regularly and legitimately found in the charter of its creation, we acknowledge equally the obligation to withhold from it no power or attribute which...has been declared necessary...to the fulfillment of clear and well-defined duties." Thus the Court grants that Congress may go beyond its enumerated powers if the execution of its constitutional duties so requires.

In 1937, the Court decided the case of the National Labor Relations Board v Jones & Laughlin Steel Corporation. The decision expanded the Commerce Clause powers of Congress by arguing that intrastate activities with "such a close and substantial relationship to interstate commerce that their control is essential or appropriate to protect that [interstate] commerce from burdens and obstructions" can be legitimately regulated by Congress. The Court set a criteria for the power granted in Gibbons, namely that intrastate activity open to regulation must have a close and substantial relation to interstate commerce.

Wickard v Filburn (1942) affirmed the decision in NLRB and granted additional power. The respondent in the case was found guilty of violating a law prohibiting the production of more than 11.1 acres of wheat. Even though he did not sell his extra wheat, the Court found that the respondent along with others could possibly substantially affect the wheat market were they all to violate the quota. Although Filburn’s acts did not themselves substantially affect interstate commerce, many "Filburns" could do so. The risk of substantial effect was enough for congressional regulation. Therefore, Congress’ interest in stabilizing prices on the wheat market required farmers not to exceed the quota, even if the surplus was not used for commercial purposes. This decision granted Congress the power to regulate non-commercial, local activity if it presents the risk of "substantial economic effect on interstate commerce."

These cases bring us to the most recent decision of U.S. v Lopez (1995). In the majority opinion, Chief Justice Rehnquist notes that three categories of activity may be regulated by Congress under the power of the Commerce Clause. First, the channels of interstate commerce are open to congressional regulation. Second, Congress may regulate the persons or things, the instrumentalities, of interstate commerce. Third, an activity may be regulated if it has a substantial relation to interstate commerce, or more specifically, substantially affect interstate commerce. In Lopez, the government argued under the third category, attempting to show that the presence of firearms on school grounds has substantial relation to interstate commerce. The Court found the argument to lack force, asserting that the definition of substantial relation or effect the government was putting forth would transform Commerce Clause power into "a general police power of the sort retained by the States." This decision does not categorically reject the federalization of police powers but rather affirms the doctrine of substantial relation or effect. The Court was unwilling to build "inference upon inference" to see a substantial economic effect; the presence of firearms on school grounds was found to be too far removed from interstate commerce to come under the third category.

The Court would be faced with a similar case in the congressional policy of outlawing the use, sale and possession of drugs. In order for the congressional policy to prevail, it must show that the possession and use of drugs, sanctioned by the state policy, substantially affect interstate commerce. However, in order to be consistent with Lopez and Wickard, whose doctrine of substantial risk of effect has never been overturned, and in the absence of empirical evidence, the Court must recognize that even the risk of an activity substantially affecting interstate commerce is sufficient for legitimate congressional regulation. I find the activities sanctioned by the state policy to be of sufficient risk of substantially affecting interstate commerce to find the congressional policy a constitutional regulation denying the practice of the activities sanctioned by the initiative.

The risk of substantial affect arises due to the simple reality that inside the state’s borders all drug possession and use are licit and outside of its borders, illicit. An invisible line separates complete tolerance from complete intolerance.

Given the standing laws of neighboring states prohibiting the use, possession or trade of the very drugs the initiative makes licit, the regulation of all traffic (be it car, bus, truck, train or landing plane) passing through or going between jurisdictions would need to be radically altered in order to faithfully execute drug laws. It is beyond rational doubt to assume that, in the absence of the congressional policy, drug use and possession in the state will increase. Given the strong motives behind drug users and dealers to procure drugs (whether for physical or monetary reasons), it is assured that many of these individuals will take advantage of the state’s tolerant policy to meet their needs. Such an eventuality creates a further inevitability: that the licit drugs will spillover into neighboring states where they are outlawed. Indeed, given the absence of the threat of law, the risk of arrest that inflates drug prices would disappear and the prices would fall, making the purchase of drugs in the state for sale in other states an attractive option for drug dealers. One can easily imagine thousands of individuals traveling to the state, buying drugs at a price substantially below their market value in other states and reselling them at home for an enormous profit.

The measures other states would have to take to execute their existing laws would be extraordinary. All commercial vehicles entering all other states (but especially the neighboring states) would have to be combed for illicit drugs. Any state wishing to remain faithful to its laws would have to all but paralyze commercial traffic. The cost to taxpayers would be substantial. The profits of businesses relying on out-of-state products and commerce would be reduced, if not eliminated. Absent clear evidence that no such eventuality would occur, the risk of the possibility is too real and substantial to argue that the activities allowed by the initiative cannot be regulated by Congress. Were however, the petitioner able to produce evidence that shows unequivocally that other states would be able to maintain normal commercial traffic without any fear that their drug laws were being transgressed, then I could not conclude that the activities in the state substantially affected interstate commerce, and the congressional policy would be deemed unconstitutional. Wickard and Lopez, along with Marigold grant Congress the power to regulate activities that pose a risk of substantially affecting interstate commerce by criminalizing the activities, if criminalization is consistent with the discharge of a legitimate congressional power. In this case it is clear that the risk exists and the proper means of removing the risk is to prohibit or criminalize the activities in question.

One might make two objections to my finding, each of which I argue is uncompelling. First, the criteria of Wickard allows for interference by Congress into state legislation that obscures, if not eliminates the traditional police powers reserved to the states. The power of Congress undermines the ability of the citizens of each state to determine the rules by which they are governed. If Congress can regulate, even prohibit, an activity any state has made licit, simply because it has a risk of substantially affecting interstate commerce, then one wonders at what point the power would end. Indeed, much of the precedent that I cite suggests that the criterion of substantial effect may not apply when to do so would offend the heart of our federal system. Interstate commerce power "must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce... that... would effectually obliterate the distinction between what is national and what is local and create a completely centralized government."

The police power over drugs appears to be the very type of case the above passage from Jones & Laughlin addresses. Given the high amount of drug-related crime, Congress’ power would inevitably overwhelm any state police power. All aspects of law enforcement that relate to drugs would fall under Congress’ jurisdiction, making the States mere tools of the national government, unable to make and live under their own laws.

I respond, however, that the problem of drug use, possession and trade necessarily lends itself to a uniform, national policy, and to allow each state to pursue its own policy creates the sort of burden on other states that the Founders sought to prevent through the Constitution.

The state policy demonstrates the risks involved in allowing states, in the case of drug policy, to pursue different policies. As I argue above, the legalization of drugs within one state almost certainly will substantially burden the effective pursuit of drug use and possession prevention in other states. A neighboring state would have to create nearly impervious borders in order to remain faithful to its anti-drug policy; one wonders if the free flow of people to and from the state, let alone commerce, would remain a possibility. By upholding the constitutionality of the congressional policy, the Court would recognize and condemn the substantial burden a state pursuing an independent drug policy places on neighboring states.

Admittedly, to the casual observer, the Court’s decision would appear to be a significant usurpation of states’ police powers and a step toward a unitary system. I agree that the Court ought to be wary of assaults on federalism. The decision should not be looked upon by future Courts as a precedent for allowing the nationalization of police powers, but rather as an affirmation of Congress’ power to regulate any activities, including crimes, that have a substantial effect on interstate commerce. In this case, the state policy creates a risk of substantially affecting interstate commerce. To deny Congress’ power in this case would be to overturn nearly all Commerce Clause precedents as well as Marigold. And to overturn Marigold would be to all but eliminate any non-enumerated means Congress requires to pursue its powers and duties. Although to find for the federal government might blur the line of federalism, to find for the state would strip Congress of its power, granted in Marigold, to act beyond its enumerated means to pursue its enumerated duties. The latter I do not think our system can tolerate.

The objection might change at this point to a general claim that the Court’s decision offends democratic theory: The Court fails to allow the state’s citizens the right to make and live under their own laws. The Court could not be following the spirit of the constitutional text if it allows the decision of nine individuals to override the will of the millions of the state’s residents. The Court’s decision destroys the idea of self-determination at the local level. It sets an attractive precedent for those who wish to minimize the extent of self-government and increase the tyranny of the minority.

However, this objection lacks force and brings out further reasons why the Court’s decision should hold. The entire nation, through Congress, has found drug use and possession to be a harmful and unwanted activity. Additionally, each state through its own legislation has made drug use and possession a crime. In order for the state to claim that its initiative affirms the importance of democracy, it must show that the initiative was freely chosen by the people which the initiative affects. At first glance it appears that this is exactly what the initiative does. In truth, however, the initiative is rather undemocratic: It pursues a policy that substantially affects the policies of others states. The state’s legislature effectively sets the policies of neighboring jurisdictions. The state’s tolerant drug policy puts surrounding states which wish to pursue a hard-line drug policy at a severe disadvantage. Its legislature is choosing the policies under which citizens in other states will live; the policy compels other states to fiercely protect their own borders at taxpayer expense in order to maintain the integrity of their policies. Such a conflict between states clearly seems to support the reasons the Founders discarded the Articles of Confederation for a stronger central government. One must remember the dicta of Gibbons: Where activity "concerns" more than one state, it may properly come under congressional regulation. Given the effect individual state drug legislation may have on other states, it is in the best interests of the Union to allow the congressional policy to govern for all states.

In short, Commerce Clause case law indicates that an activity may be regulated if it substantially affects, or poses a risk of substantially affecting, interstate commerce. No empirical evidence exists to suggest that the activities of drug use and possession in the state would substantially affect interstate commerce. However, given the facts surrounding drug use and trade, it is beyond rational doubt that the effects of the initiative on interstate commerce would be substantial if not overwhelming. The congressional policy is a constitutional regulation of activities substantially affecting interstate commerce. Additionally, the decision should not be viewed as an attack on our dual system or the usurpation of state police powers by Congress but rather as a reaffirmation of Congress’ commitment to removing barriers affecting interstate commerce, whether these barriers are criminal, exist between states or exist inside any state. Finally, the decision is a victory for democracy: It strengthens our deeply held belief that those whom legislation would affect ought to have a voice in its embrace or rejection.