On May 14, the Supreme Court struck down a federal law that prevented individual states from legalizing sports gambling. In a 7-2 decision, the Court found that a provision of the Professional and Amateur Sports Protection Act (PASPA) violated aspects of the Tenth Amendment, which defines the relationship between federal and state governments.
On the surface, this news may not seem directly tied to the cannabis industry. But to understand why a case centered on New Jersey’s wish to legalize gambling on college and professional sports is relevant to marijuana, it’s first important to understand the concept of “anti-commandeering” principles.
As Justice Samuel Alito wrote in his majority decision, the Tenth Amendment ensures that Congress “cannot issue direct orders to state legislatures.” This doesn’t mean that states can simply choose which laws to uphold and which to ignore, but it does indicate that the Supreme Court as it currently stands believes that if the federal government wishes to enforce prohibitions that specific states choose not to honor, it cannot compel the states in question carry out their will for them.
In the context of cannabis, this ruling creates a precedent that could later be cited in arguing that the federal government cannot tell California and other states to use their own resources to enforce the U.S.’s federal pot prohibition. Without state assistance — which the federal government heavily relies on to carry out federal prohibition laws — it would effectively leave states to make their own determinations on how they wish to deal with cannabis.
Speaking with Marijuana.com, Keith Stroup — founder of the cannabis advocacy group NORML — agreed that the outcome of Murphy v. NCAA is about more than gambling.
“There certainly is the possibility that the same anti-commandeering legal doctrine may well end up helping in other areas,” he said.
Perhaps more important than the ruling itself is the insight the decision gives legal analysts about how the current Supreme Court views the constitutionality of something like PASPA. Enacted in 1992, the bill prohibited states where gambling was not already legal from later authorizing such activity. What Justice Alito and six other members of the Supreme Court found was that prohibiting states from passing legislation to legalize gambling was the same as forcing them to pass legalization banning it — a violation of American federalism and the crux of the anti-commandeering doctrine.
If that all feels a little dense, think of it this way: The U.S. government can’t make a state legislature pass a bill it doesn’t want to pass. Thus, it stands to reason that stopping a state legislature from passing a bill it does want to pass should be held to the same standard.
Regarding the clash between state and federal law that Proposition 64 created, Murphy v. NCAA signals that the Supreme Court believes the Constitution — and specifically the Tenth Amendment — prohibits the federal government from forcing states’ to act against their own wishes.
As Marijuana Moment’s Tom Angell wisely points out, this ruling is as much a bullet dodged as it is a victory. If the Supreme Court had ruled in favor of PASPA, it could have led to dire consequences. As Angell writes, “Congress would have been empowered to pass a new law, broader than the current Controlled Substances Act (CSA), that required states to keep their own marijuana bans in effect.” Fortunately, that possibility is no longer an option, but future landmark decisions on behalf of legalized marijuana remain firmly in play.
Given Alito’s history as one of the current Supreme Court’s most conservative justices — behind only Clarence Thomas — his ruling may ultimately lead to a showdown with another conservative political figure often cited in marijuana policy discussions: Attorney General Jeff Sessions. The prospect of watching Sessions battle Alito over the legality of cannabis is intriguing to say the least, and it’s a fight that offers the possibility of an outcome few would have believed possible before the Murphy v. NCAA decision.
Meanwhile, efforts in Congress on the opposite front continue to gather momentum, from Senator Cory Booker’s Marijuana Justice Act to the VA Medicinal Cannabis Research Act of 2018, which in May became the first marijuana reform bill to ever be cleared for a vote by a House committee. Will 2018 be the year that the mounting efforts to end cannabis prohibition finally come to a head? Possibly, but even if we’re forced to wait a little longer, the Court has proven once again that the green tides are finally starting to turn at the federal level.