The Flanary Law Firm Challenges the Constitutionality of Federal Marijuana Enforcement

The Flanary Law Firm Challenges the Constitutionality of Federal Marijuana Enforcement


Does the federal government have the right to arrest someone in Texas for behavior they condone in Colorado? Do states, and their residents, deserve equal treatment by the federal government—at least treatment that bears some rational relation to the facts on the ground?


The cultivation and sale of recreational marijuana is legal in eight states and the District of Columbia under state law, but illegal under federal law. The federal government is not prosecuting the vast majority of marijuana growers in those states, but is in Texas. Why?

Our client, Michael Myers, allegedly grew marijuana in a residence in San Antonio. Under the laws of Texas, Myers is undoubtedly in hot water. Under the laws of Colorado, however, Myers may be operating legally. But state authorities did not prosecute Myers; instead, federal prosecutors brought charges against him in the United States District Court for the Western District of Texas for violations under the Controlled Substances Act (CSA).

Compared to the amount of marijuana being grown by individuals in Colorado and Washington, Myers’ alleged operation barely tips the scales of the nation’s supply. Conceptually, however, the amount of marijuana allegedly possessed by Myers is unimportant. The Supreme Court held in Gonzales v. Raich1 that the Commerce Clause provided all the justification necessary to regulate even small amounts of marijuana grown solely for personal consumption under the CSA.2

But does the CSA allow the Executive Branch to craft a prosecutorial policy that ignores the mass amounts of marijuana grown in \\\”legalized\\\” states while continuing to prosecute citizens of \\\”non-legalized\\\” states? (Before we move on, it’s important to remember the CSA recognizes not one legal leaf of marijuana outside of federally approved medical studies. The CSA does not delineate between state-legal marijuana and illegal marijuana. All marijuana is prohibited in all states, as federal law is supreme over state law.)

We argue that not only does the CSA not allow the Executive Branch this leeway, but the prosecutorial policy is one of selective enforcement that purposefully infringes upon Myers’ fundamental right of equal sovereignty. Further, the current state of laws around marijuana is in such a mess of contradictions that we make three additional claims in Myers’ Motion to Dismiss, namely, the President has failed to take care the laws are faithfully executed, the President violated the separation of powers, the law violates equal sovereignty, and the CSA can no longer claim a rational basis under the Commerce Clause.

Selective Prosecution in Violation of the Right to Equal Sovereignty

Although our country’s very structure is informed by a delicate balancing act between the states, the question of whether the states have a right to equal treatment by the federal government has only recently been addressed. Shelby County, Alabama v. Holder3 invalidated the preclearance requirement placed on certain states by the Voting Rights Act, which, although \\\”extraordinary legislation\\\” that was a clear \\\”departure[] from the basic features of our system of government,\\\”4 could be justified at the time of its enactment by the extraordinary problem that warranted it. The Voting Rights Act singled out for stricter treatment those states \\\”where voting discrimination ha[d] been most flagrant.\\\”5 The Act identified certain voting practices that raised the specter of systemic racial discrimination (the standard changing over time), and lumped all states that employed the suspicious practices into the category of \\\”covered\\\” jurisdictions.6 Covered jurisdictions could not make any change—however slight—to their state election laws until cleared by federal authorities.7


Over time, the situation on the ground in the covered jurisdictions bore little resemblance to that of 1965,8 and the Supreme Court announced the following rules in Shelby County: \\\”the [Voting Rights] Act imposes current burdens and must be justified by current needs\\\” and \\\”a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.\\\”9

A state’s inherent authority under the Constitution to control its own elections may alone have invalidated the preclearance requirement, regardless of state discrimination, because current needs could not justify current burdens.10 But the Supreme Court went a step further to recognize the separate but \\\”equally dramatic departure from the principle that all States enjoy equal sovereignty\\\” embodied in the Voting Rights Act.11 In oral argument, Justice Kennedy pondered aloud why the federal government could \\\”just single out States by name,\\\” finding it \\\”equally improper\\\” under the \\\”equal footing doctrine.\\\”12 Justice Scalia agreed saying, \\\”I thought the same thing. I thought it’s sort of extraordinary to say Congress can just pick out, we want to hit these eight States, it doesn’t matter what formula we use . . . .\\\”13 In the opinion, Chief Justice Roberts wrote, \\\”the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.\\\”14 In order to respect this harmony, states may only be singled out when the \\\”disparate geographic coverage is sufficiently related to the problem\\\” targeted.15

As far as the laws regarding marijuana prohibition, the federal government purported under President Obama to treat all jurisdictions similarly. The Cole Memo, a 2013 memorandum put out by Deputy Attorney General James Cole, identified guidelines meant to prioritize Department of Justice resources in every federal district, not only those states with \\\”legal\\\” marijuana. The guidelines claim to be a continuation of federal policy whereby federal prosecutors are most concerned with marijuana manufactured on public lands, dual possession of illegal firearms, trafficking in controlled substances in addition to marijuana, crossing state or international borders, and endangering minors, among other priorities.

Myers, unlike every single person charged in Colorado and Washington after the issuance of the Cole Memo, did not violate a Cole Memo guideline. Although the Department of Justice claims to be applying the Cole Memo equally across the board to conserve precious department resources, in fact, the Cole Memo only applies to \\\”legal\\\” marijuana states. As Shelby County tells us, the federal government cannot treat Texas any differently from Colorado unless the coverage is sufficiently related to the goal of preserving prosecutorial resources.

So we ask, is there any logical relation between expending greater prosecutorial resources in Texas, where local law enforcement can be counted on to proscribe marijuana under Texas laws, and fewer resources in Colorado, where the law encourages marijuana production, all under the authority of the CSA?

We believe no logical relation exists. Myers’ Motion to Dismiss can be read in full here. He looks forward to his day in court.

1 Gonzales v. Raich, 545 U.S. 1 (2005).
2 Id. at 31–33.
3 Shelby Cty., Ala. v. Holder, 133 S. Ct. 2612 (2013).
4 Id. at 2624−25.
5 Id. at 2625 (quoting State of S.C. v. Katzenbach, 383 U.S. 301, 328 (1966), abrogated by Shelby Cty., Ala. v. Holder, 133 S. Ct. 2612 (2013)).
6 Id. at 2619.
7 Id. at 2624.
8 Id. at 2625−26.
9 Id. at 2622 (quoting Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)).
10 Id. at 2629-30 (\\\”[H]istory did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. . . . And yet the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting the current needs.\\\”).
11 Id. at 2618.
12 Oral Argument at 22:44, Shelby Cty., Ala. v. Holder, 133 S. Ct. 2612 (2013) (No. 12-96),
13 Id. at 22:56.
14 Shelby County, 133 S. Ct. at 2623 (quoting Coyle v. Smith, 221 U.S. 559, 567 (1911)).
15 Id. at 2622.

Featured image is a CC Image courtesy of Brett Levin on Flickr.