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ADJOURNED 'til Thursday at 11 a.m. (informal)
ADJOURNED 'til Thursday at 11 a.m.


By Colin A. Young

STATE HOUSE, BOSTON, MAY 15, 2018.....The activity is already widespread but it is all happening illegally and the only people profiting are tied into a seedy underworld, the argument goes, so why not make it legal, tax it and watch the money flow into the state?

That was part of the case being made two years ago by marijuana activists pushing Massachusetts to bring sales of the drug out of the shadows. But it was also part of the argument that successfully convinced the U.S. Supreme Court to rule the federal prohibition on sports betting unconstitutional.

The parallels between the two topics, though not perfectly overlapping, may have given a sliver of hope to advocates who want to see the federal government back off its classification of marijuana as a schedule I drug and allow states to regulate it as they choose.

The federal government still considers marijuana wholly illegal, though a slew of states have made it legal to grow, sell, buy and use marijuana within their borders. The clash between state and federal law was renewed in January when Attorney General Jeff Sessions revoked Obama-era guidance that instructed the U.S. Department of Justice to look the other way in states that had regulated marijuana themselves.

In Massachusetts, the new Trump-appointed U.S. attorney refused to rule out bringing federal charges against state-sanctioned marijuana businesses, a postion he later walked back.

The deliberations in Murphy v. National Collegiate Athletic Association revolved around the 10th Amendment, which generally states that Congress cannot issue direct orders to state legislatures. New Jersey successfully argued that the Professional and Amateur Sports Protection Act violated the 10th Amendment because it prevented states from legalizing sports betting without regulating the activity at the federal level.

"More Power to States"

Justice Samuel Alito, concluding that a specific provision of PASPA "unequivocally dictates what a state legislature may and may not do," wrote that such a law was a direct attack on the system of government.

"It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals," Alito wrote in the majority opinion released Monday. "A more direct affront to state sovereignty is not easy to imagine."

The Supreme Court's ruling Monday that PASPA indeed violated the 10th Amendment "not only opens the door for states around the country to allow sports betting, but it also could give significantly more power to states generally, on issues ranging from the decriminalization of marijuana to sanctuary cities," Amy Howe wrote in an analysis of the opinion for SCOTUSblog.

The idea that New Jersey's argument could apply to marijuana and other subjects was first raised by Supreme Court Justice Sonia Sotomayor during oral arguments in the case in December.

"What I'm saying is -- and all of the evidence supports this -- that betting on sports is taking place all over the United States. Five percent of it is legal in Nevada. The rest of it is illegal," former U.S. solicitor general Ted Olson, arguing the case for New Jersey, said.

Sotomayor responded, "So why don't we -­ why don't we legalize -- this is a hypothetical -- marijuana because all of -- and all drugs, because there's a rampant market out there for those drugs, but we've made a policy choice that we don't want the state involved in promoting that type of enterprise. Why is this any different?"

Olson's response was that in the case of marijuana, Congress passed a law to specifically deal with the prohibition of marijuana and other drugs rather than simply preventing states from making them legal. He added, "that's in play right now because various states have done various different things."

Howe, an attorney who argued before the U.S. Supreme Court and taught Supreme Court litigation at Stanford and Harvard before founding SCOTUSblog, wrote Monday that the ruling in Murphy v. NCAA "could also have a much broader reach, potentially affecting a range of topics that bear little resemblance to sports betting."

She specifically cited legal arguments based on the 10th Amendment from supporters of so-called sanctuary cities as they challenge the government's attempts to impose conditions on grants for state and local law enforcement.

"Challenges to the federal government's recent efforts to enforce federal marijuana laws in states that have legalized the drug for either recreational or medical use may also be based on the 10th Amendment," she wrote.


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