Alabama, Mississippi and Louisiana on Ashcroft v. Raich

BRIEF OF THE STATES OF ALABAMA,
LOUISIANA, AND MISSISSIPPI
AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS

10/13/04

INTEREST OF AMICI
The Court should make no mistake: The States of
Alabama, Louisiana, and Mississippi do not appear here
to champion (or even to defend) the public policies
underlying California’s so-called “compassionate use” law.
As a matter of drug-control policy, the amici States are
basically with the Federal Government on this one. We
agree wholeheartedly that drug abuse is one of the
Nation’s “most important public health problem[s]”1 and
is “undercutting traditional values and threatening the
very existence of stable families, communities, and
government institutions,”2 and we are fully committed to
partnering with the Federal Government in a vigorous
prosecution of the war on drugs.

This, accordingly, is not a brief of “[d]rug legalization
advocates”3 or “pro-marijuana activists.”4 Far from it.
With respect to the issue at hand, the amici States’
Legislatures have enacted, their Attorneys General have
enforced, and their courts have routinely sustained
statutes broadly criminalizing marijuana possession and,
depending on the circumstances, punishing violators with
up to 10 years in prison for a first offense. See, e.g., Ala.
Code §§13A-5-6, 13A-5-7, 13A-12-213, 13A-12-214.
Indeed, the lead amicus here, Alabama, has apparently
earned something of a reputation for its zeal in
prosecuting and punishing drug crimes. See E.
Nadelmann, An End to Marijuana Prohibition, National
Review, p.28 (July 12, 2004) (“Alabama currently locks up
people convicted three times of marijuana possession for
15 years to life.”). It is not a reputation of which Alabama
is embarrassed or ashamed. On the contrary, Alabama’s
Attorney General has every intention of continuing to
prosecute drug crimes to the fullest extent of the law.

Drug-control policy aside, the amici States also
disagree with respondents’ contention that there is
embedded in the Constitution (whether in the Due
Process Clause, the Ninth Amendment, or elsewhere) a
“fundamental right” – however defined – to smoke or
otherwise ingest marijuana. Alabama, for instance, has
consistently urged this Court not to divine new,
unenumerated rights from the Constitution’s open-textured
provisions and, instead, to leave difficult social
policy choices to elected state legislatures. See, e.g., Br. of
the States of Alabama, et al., Roper v. Simmons, No. 03-
633; Br. for the States of Alabama, et al., as Amici Curiae,
Lawrence v. Texas, 539 U.S. 558 (2003) (No. 02-102); Br.
for Amici Curiae States of California, Alabama, et al.,
Washington v. Glucksburg, 521 U.S. 702 (1997) (No. 96-
110). The amici States’ position here is no different.

From the amici States’ perspective, however, this is
not a case about drug-control policy or fundamental
rights. This is a case about “our federalism,” which
“requires that Congress treat the States in a manner
consistent with their status as residuary sovereigns and
joint participants in the governance of the Nation.” Alden
v. Maine, 527 U.S. 706, 748 (1999). The Government
apparently does not view the federalism issue in this case
as a serious one. See U.S. Br. 13 (“It is clear that
Congress has the authority ….” (emphasis added)). We
respectfully disagree. And, just as individual States have
intervened to challenge laudatory (and popular)
congressional statutes on federalism grounds before, see,
e.g., Br. for the State of Alabama as Amicus Curiae,
United States v. Morrison, 529 U.S. 598 (2000) (Nos. 99-5,
99-29), the amici States perceive a need to do so here.

While the amici States may not see eye to eye with
some of their neighbors concerning the wisdom of
decriminalizing marijuana possession and use in certain
instances,5 they support their neighbors’ prerogative in
our federalist system to serve as “laboratories for
experimentation.” United States v. Lopez, 514 U.S. 549,
581 (1995) (Kennedy, J., concurring). As Justice Brandeis
famously remarked, “[i]t is one of the happy incidents of
the federal system that a single courageous State may, if
its citizens choose, serve as a laboratory; and try novel
social and economic experiments without risk to the rest
of the country.” New State Ice Co. v. Liebmann, 285 U.S.
262, 311 (1932) (Brandeis, J., dissenting). Whether
California and the other compassionate-use States are
“courageous” – or instead profoundly misguided – is not
the point. The point is that, as a sovereign member of the
federal union, California is entitled to make for itself the
tough policy choices that affect its citizens. By stepping
in here, under the guise of regulating interstate
commerce, to stymie California’s “experiment[],” Congress
crossed the constitutional line.



AMICI CURIAE BRIEF PDF here.

Alabama State Motto: We Dare Defend Our Rights