We have heard quite a lot of late about the rule of law in Connecticut and elsewhere. The Connecticut Bar Association even sponsored two seminars in recent years on that precise subject. One of the speakers, a top business leader in Connecticut, raised many eyebrows when he said one of the reasons he would prefer to do business in China rather than in Russia is that China, in spite of all the differences from our legal system, takes the rule of law more seriously than Russia does.
But do we take the rule of law at least as seriously as the Chinese? Marijuana sale or use is flatly illegal under federal statutory law. The Controlled Substances Act, which was adopted by Congress in 1970, creates five tiers of drugs with different levels of restrictions. Marijuana is presently classified by the federal government as a Schedule I drug, making its possession a violation of federal law. The federal ban on marijuana has been upheld as a valid use of Congress’ interstate commerce power by two decisions of the U.S. Supreme Court—United States v. Oakland Cannabis Buyers’ Cooperative in 2001 and Gonzalez v. Raich in 2005. The Supreme Court made clear that the federal law preempts state laws permitting the sale or use of marijuana. Other than a quibble over whether “preempts” is the precisely correct legal word, no legal scholar of any political persuasion has suggested that state statutes permitting the sale or use of marijuana have a legal leg to stand on.
And yet we have the spectacle of Connecticut and other states passing laws permitting the sale or use of marijuana in clear violation of federal law. Why? Because the nation’s chief federal law enforcement officer has said local prosecutors may decide that a reasonable allocation of federal resources is that they will generally not enforce federal law against those who comply with state law. There are many ifs, ands and buts in the pronouncements of various federal prosecutors, all of which leave users and sellers of marijuana with no legal protection if the prosecutors suddenly change their minds or suddenly make an exception for, say, growers or distributors.
But prosecutorial uncertainty is not our point. Our point is: Is it proper that we—lawyers who supposedly believe in the rule of law—stand mute while the Connecticut Legislature makes inroads on the rule of law by passing a statute we all know to a certainty is preempted by federal law?
People who truly believe in the rule of law can take one of four actions in response to the federal law, depending on how strongly they disagree with it: (1) they can urge Congress or the attorney general to declassify marijuana from its list of Schedule I drugs and leave it to the states to determine whether possession will be legal; (2) they can challenge the law in court; (3) they can participate in civil disobedience and be willing to accept the consequence of going to jail; or (4) they can use the power of their vote to elect federal leaders who will change the federal law.
Simply disregarding the law—which is what the speaker at the rule of law conference was implicitly saying about Russia—is not an option for a society that believes in the rule of law.
Action (2) has been tried and lost, leaving actions (1), (3) and (4). If lawyers are unwilling to urge repeal of the federal law but are willing to accept Connecticut’s marijuana law without protest and even to assist clients in complying with it, they should ask themselves whether they really believe in the rule of law.•