1

Marijuana Legalization in the Northwest, Idahos Senate Concurrent Resolution No. 112, and the
Presidents Duty to Enforce the Law.

Christopher Williams

Table of Contents
I. Introduction .......................................................................................................................................... 2
II. State of Marijuana Criminalization ....................................................................................................... 4
A. Traditional Federal Marijuana Prohibition ........................................................................................ 4
B. In the States ...................................................................................................................................... 4
C. Approach by the Obama Administration (20092014)..................................................................... 7
III. Marijuana Criminalization in Idaho ................................................................................................. 10
A. Efforts to legalize and Senate Concurrent Resolution 112 ............................................................. 10
B. The Idaho Executive and Judiciary Branch ...................................................................................... 12
C. Idahos Potential Trouble Regions .................................................................................................. 13
IV. The Standing Requirement ............................................................................................................. 16
V. The Take Care Claim ............................................................................................................................ 18
A. The General Rule ............................................................................................................................. 18
B. Exceptions ....................................................................................................................................... 20
i. Generally ..................................................................................................................................... 20
ii. Equal Sovereignty among the States .......................................................................................... 22
iii. Lack of Funds ............................................................................................................................... 24
C. An Unconstitutional Appropriation of Power ................................................................................. 25
D. Policy Reasons for Idaho to Sue ...................................................................................................... 26
VI. Conclusion ....................................................................................................................................... 28


2

I. Introduction
Since the 1990s, states have legalized marijuanain contradiction with federal lawin
various manners at an unprecedented pace.
1
A recent shift in the public perception of marijuana
from the hardline conservative stance of the early to mid-1900s to a stance that perceives less
harm relative to other legal substances caused this relatively recent change in state policy.
2
This
popular opinion transcends party lines making it a contemporary anomaly in our hyper-
adversarial political climate.
3
Despite this, there are more powerful forces behind public policy,
namely executive and congressional authority, than opinion polls.
The foundation of our government consists of a structure that emphasizes struggle,
whether that is struggle between the federal and state government,
4
struggle between the
different political branches,
5
or even the struggle between the concepts of a living constitution
and constitutional restoration.
6
The important struggle in the marijuana-legalization realm is one
between the states and the federal governments embodied by the two following conflicting, yet
equally potent, truisms of our nation: It 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
7
and [t]his Constitution, and the
Laws of the United States . . . shall be the supreme law of the land; and the judges in every state
shall be bound thereby, anything in the constitution or laws of any state to the contrary
notwithstanding.
8
In a case like that of the current marijuana legalization at the state level, a
substance that has historically been illegal at both the federal and state level, these two principles
are inevitably in conflict.
This comment focuses on President Barack Obamas involvement in the state legalization
of marijuana, particularly his flexible approach to the enforcement of the federal Controlled
Substances Act. I come to the conclusion that President Obamas refusal to enforce the law in
those states where marijuana is legal to some extent is a violation of the Presidents
constitutional duty to take care that the laws be faithfully executed.
9
If federal marijuana
legalization is to occur in this country, it is, first and foremost, the responsibility of the people to
petition their federal legislature, and the responsibility of the legislature to respond to that

1
See infra Part II.B.
2
William A. Galston & E.J. Dionne, Jr., The New Politics of Marijuana Legalization: Why Opinion is Changing,
BROOKINGS (May 29, 2013), http://www.brookings.edu/research/papers/2013/05/29-politics-marijuana-legalization-
galston-dionne.
3
Id.
4
For a more in-depth explanation of our dual federalism system, see John Minor Wisdom, Foreword: The Ever-
Wheeling Wheels of American Federalism, 59 NOTRE DAME L. REV. 1063 (1984).
5
For an in-depth explanation of the separation of powers, see Jack M. Beermann, An Inductive Understanding of
Separation of Powers, 63 ADMIN. L. REV. 467 (2011); see generally Morrison v. Olson, 487 U.S. 654, 697 (1988)
(Scalia, A., dissenting).
6
For a discussion on the concepts of originalism and that of a living constitution, namely regarding their ability to
co-exist, see Jack M. Balkin, Framework Originalism and the Living Constitution, 103 NW. U. L. REV. 549 (2009).
7
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, L., dissenting).
8
U.S. CONST. art. VI, cl. 2 (the supremacy clause) (emphasis added).
9
U.S. CONST. art. II, 3 (the take care clause).
3

demand by removing marijuana from the list of controlled substances listed in the Controlled
Substances Act. Alternatively, Congress authorized the president to transfer between schedules,
or even completely remove, marijuana subject to rulemaking procedures.
10
There are several
procedures that must be followed if marijuana is to legitimately become legal at the federal level.
An executive decision to refuse to enforce the law for strictly policy reasons is not a legitimate
path.
In Part II, I give a history of marijuana criminalization in the United States. I place a
special emphasis on both the intricacies of the federal law and the recent successful legalization
efforts in the Northwest United States.
In Part III, I lay out the legal status of marijuana in Idaho. I include the opinions of recent
legislatures, the governor, the judiciary, and the public of Idaho. I also speak to regions in Idaho
that are particularly vulnerable to the side effects caused by legalization of marijuana in nearby
states. These vulnerabilities lead to costs for Idaho which segues into Idahos issue of standing in
court.
Part VI necessarily discusses Idahos requirement of standing if they were to challenge
the non-enforcement of the Controlled Substances Act. I find that the damage caused to Idaho as
a direct consequence of the combination of 1) marijuana legalization in the surrounding states,
and 2) the non-enforcement of the Controlled Substances Act by President Obama make a good
case for standing in court. Although standing is not the primary inquiry in this paper, for obvious
reasons
11
a brief discussion must occur.
Part V, the natural culmination of this article, explores the contours of the take care
clause. I explore when a President may refuse to enforce a law, for what reasons a president
may refuse to enforce a law, to what extent they may refuse to enforce law, and the methods
generally used to refuse to enforce law. I also explore how the disparate enforcement of the CSA
among the states effects this analysis. Ultimately I conclude that President Obamas methods and
reasons for refusing to enforce the Controlled Substance Act as applied to marijuana in the states
that 1) have legalized marijuana to some extent, and 2) have a regulatory mechanism for that
legalization, goes beyond his power to refuse to enforce congressional statutes. I also explore
policy reasons that Idaho, or other states in a similar position, would decide to take the time and
money that a suit against the federal government would cost.
In Part VI, I conclude by arguing that if marijuana legalization is to happen, and if we are
to allow the states that have legalized marijuana to persist in their efforts, it is the responsibility
of the legislature to respond to the cry of their constituents, or it is the presidents responsibility
to direct the Attorney General to undergo the rulemaking procedures required to remove
marijuana from the Controlled Substances Act schedule list. If the president believes that

10
21 U.S.C.A. 811(a) (2013); Gonzales v. Raich, 545 U.S. 1, 33 (2005) (Supreme Court stating that there are both
executive procedures and the democratic process are available to reclassify marijuana under the Controlled
Substances Act).
11
Idaho would not be able to even bring a suit if it did not have standing. Massachusetts v. EPA, 549 U.S. 497, 516
(2007) (explaining the constitutional limit on federal judicial standing imposed by the cases and controversies
clause).
4

prosecution against marijuana-users, -possessors, or -dealers should not be a federal priority,
executive overreach is an inappropriate answer.
II. State of Marijuana Criminalization
A. Traditional Federal Marijuana Prohibition
12

Generally, prohibition of marijuana in the United States began in the early twentieth century.
13

The Marihuana Tax Act of 1937 (MTA) initiated our history of federal marijuana probation by
creating an unpayable federal tax for the possession of marijuana.
14
Almost thirty years after the
passage of the MTA, the United States Supreme Court ruled the tax abhorrent to the Fifth
Amendment because the unpayable tax required self-incrimination.
15
In response to the Supreme
Courts Leary ruling, Congress passed the Controlled Substances Act (CSA).
16
The CSA makes
it a federal crime to, without special authorization, manufacture, distribute, or dispense, or
possess, with intent to manufacture, distribute, or dispense or even possess any controlled
substance.
17
Penalties vary depending on the schedule of the drug.
18
Schedules rage from
Schedule I, a drug that has 1) a high potential for abuse, 2) has no medically accepted use, and 3)
is unsafe to use even with medical supervision, to Schedule V, a drug that has 1) a low potential
for abuse, 2) medically accepted use, and 3) use leads to little to no chance of physical or
psychological dependence.
19
The CSA classifies marijuana as a Schedule I drug, thus implicating
the harshest penalties of the CSA.
20
If the Attorney General finds that the drug is not in the
proper schedule, he can initiate a rulemaking procedure that would either move the drug to a
proper schedule, or that would remove the drug entirely.
21
The Supreme Court upheld the CSA
in regards to regulating marijuana as a legitimate use of Congresss interstate commerce power.
22

B. In the States
The states commonly criminalized marijuana until 1996, when California passed an initiative
that allowed possession and sale of marijuana for medicinal purposes.
23
Although many states
have since adopted similar statutes that allow possession, sale, and use of marijuana for medical

12
For a short history from 19062005 on federal marijuana prohibition, from the perspective of the 2005 U.S.
Supreme Court, see Gonzales v. Raich, 545 U.S. 1, 1015 (2005).
13
Troy E. Grandel, One Toke Over the Line: The Proliferation of State Medical Marijuana Laws, 9 U. N.H. L. REV.
135, 135136 (2010).
14
Marijuana Tax Act of 1937, Pub. 238, 75th Congress, 50 Stat. 551 (Aug. 2 1937) (held unconstitutional by Leary
v. U.S., 395 U.S. 6 (1969)).
15
Leary v. U.S., 395 U.S. 6 (1969).
16
Controlled Substances Act, 21 U.S.C. 811844 (2013).
17
Controlled Substances Act, 21 U.S.C. 841(a)(1), 844(a) (2013).
18
Controlled Substances Act, 21 U.S.C. 812(b) (2013)
19
Id.
20
Controlled Substances Act, 21 U.S.C. 812 Schedule I (c)(10) (2013)
21
Controlled Substances Act, 21 U.S.C. 811 (2013).
22
Gonzales v. Raich, 545 U.S. 1, 9 (2005); U.S. Const. art. I 8, cl. 3 (the commerce clause).
23
Troy E. Grandel, One Toke Over the Line: The Proliferation of State Medical Marijuana Laws, 9 U. N.H. L. Rev.
135, 136 (2010)
5

purposes or otherwise,
24
I only discuss states in the western United States that have more of a
direct impact on Idaho with a special emphasis on border states. The states I will discuss are
Washington, Oregon, Montana, Nevada, California, and Colorado.
Washington citizens voted on and passed an initiative, which both de-criminalizes
marijuana and allows the state government to create regulations on how marijuana is taxed.
25

The initiative passed partially due to the high demand for marijuana in the state and the potential
tax revenue that could be had from taxing the product.
26
The state liquor control board is
responsible for creating regulations and a tax for the sale of marijuana.
27
The Washington State
Liquor Control Board planned to begin distributing licenses for sellers starting December 2013
with a goal for marijuana to be recreationally available for sale by January 2014.
28

Since 1998, under the Oregon Medical Marijuana Act (OMMA), marijuana has been
legal for medical purposes in Oregon, which also shares a long border with Idaho.
29
Recently
OMMA has been held unconstitutional by the Oregon Supreme Court, although Oregon
continues to allow its citizens to use medical marijuana so long as they are compliant with
OMMA.
30
Oregon citizens voted on a citizen initiative that would legalize marijuana for
recreational purposes, The Oregon Cannabis Tax Act, on the Oregon ballot in 2012.
31
The
initiative failed (44.2% in favor, 55.8% against).
32
However, there are plans to bring a similar
measure to ballot in 2014.
33


24
For a holistic snapshot of state marijuana legislation see State Info, NORML, Norml.org/states (last visited Mar. 9,
2014).
25
2013 Wash. Legis. Serv. Ch. 3 (I.M. 502) (West), available at
http://www.leg.wa.gov/CodeReviser/documents/INITIATIVE502.SL.pdf; WASHINGTON SECRETARY OF STATE,
November 6, 2012 General Election Results: Initiative Measure 502 Concerns Marijuana (last updated Nov. 27,
2012, 4:55 PM), http://vote.wa.gov/results/20121106/initiative-measure-no-502-concerns-marijuana.html.
26
BEAU KILMER ET AL., BEFORE THE GRAND OPENING: MEASURING WASHINGTON STATES MARIJUANA MARKET IN
THE LAST YEAR BEFORE LEGALIZED COMMERCIAL SALE BEGINS, xii (2013), available at
http://www.rand.org/content/dam/rand/pubs/research_reports/RR400/RR466/RAND_RR466.pdf (estimating
Washingtons marijuana consumption to be approximately 120175 metric tons, well above the previous estimate of
eighty metric tons).
27
2013 Wash. Legis. Serv. Ch. 3, Part I 1 (I.M. 502) (West), available at
http://www.leg.wa.gov/CodeReviser/documents/INITIATIVE502.SL.pdf.
28
WASHINGTON STATE LIQUOR CONTROL BOARD, I-502 IMPLEMENTATION TIMELINE (2013), available at
http://www.liq.wa.gov/publications/Marijuana/I-502/I-502_Official_Timeline_IV_4-16-13.pdf
29
Oregon Medical Marijuana Act, O.R.S. 475.300475.346 (1998) (held to be preempted by the federal
Controlled Substances Act by the Oregon Supreme Court in Emerald Steel Fabricators, Inc. v. Bureau of Labor and
Industries, 230 P.3d 518 (Or. 2010))
30
OREGON HEALTH AUTHORITY, Oregon Medical Marijuana Program Statistics (last updated Jan. 1, 2014),
http://public.health.oregon.gov/DiseasesConditions/ChronicDisease/MedicalMarijuanaProgram/Pages/data.aspx;
Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518 (Or. 2010).
31
Jennifer Alexander, Although Measure 80 Failed, Marijuana has Won Even in Oregon, THE EXAMINER (Nov. 7,
2012), http://www.examiner.com/article/although-measure-80-failed-marijuana-has-won-even-oregon.
32
Id.
33
Jeff Mapes, With National Backing, Marijuana Advocates File Legalization Measure, THE OREGONIAN (last
updated Nov. 21, 2013, 1:02 PM),
http://www.oregonlive.com/mapes/index.ssf/2013/10/with_national_backing_marijuan.html.
6

Montanas legislature also made marijuana legal for medical purposes in 2007.
34

However, since the medical marijuana bill passed, there has been some push back by the
legislature and governor. In 2007, the legislature repealed the original medical marijuana law and
replaced it with a statute that applies more stringent regulations to the medical use of marijuana,
especially in regards to who can be considered a caregiver.
35
So, although there is regulation
over medical marijuana in Montana stricter relative to other northwestern states, it is still legal to
possess and consume for certain purposes.
The Nevada legislature legalized medical marijuana in 2013.
36
It also decriminalized
marijuana in the state, meaning no prison time or criminal record for first-time possession of a
small amount for personal consumption.
37

California does not share a border with Idaho, but it exerts great influence in the western
United States and experts estimate that in 2010 more marijuana was cultivated in California than
either Mexico or any other state.
38
In California, possession of marijuana up to 28.5 oz. is
decriminalized.
39
Also, California legalized marijuana for medical purposes in 1996.
40
Citizens
will vote on an initiative to legalize recreational purposes in 2014; this following a similar,
unsuccessful 2010 citizen initiative.
41

Finally, Colorado, like Washington, passed a citizen initiative in 2012 to add a state
constitutional amendment legalizing marijuana for recreational consumption.
42
The organization
Campaign to Regulate Marijuana like Alcohol headed this initiative.
43
The amendment alters
Colorado Constitutional Article XVIII by adding 16, which legalizes the sale of marijuana from
dispensaries to the general adult public in a similar manner to the way alcohol is sold.
44

Recreational marijuana has been available for sale to the general public since January 1, 2014.
45

Colorado is expecting upwards of $70 million dollars in tax revenue from the sale of legal
marijuana per year.
46


34
Mont. Medical Marijuana Act, Mont. Code Ann. 50-46-1 to 50-46-2 (2007)
35
Montana Senate Bill 423 (2011), available at http://leg.mt.gov/bills/2011/billpdf/SB0423.pdf.
36
Medical Use of Marijuana, N.R.S. 453A (amended by 2013 Nevada Laws ch. 547 (S.B. 374)).
37
States that Have Decriminalized, NORML (last visited Jan. 2, 2014), http://norml.org/aboutmarijuana/item/states-
that-have-decriminalized; Nevada Laws and Penalties, NORML, http://norml.org/laws/item/nevada-penalties-2 (last
visited Mar. 9, 2014).
38
CENTRAL VALLEY CALIFORNIA HIDTA, Marijuana Production in California, 25 (June 4, 2010),
http://www.slocounty.ca.gov/Assets/DAS/DAAB/Marijuana_Production_in_California.pdf.
39
Cal. Health & Safety Code. 11357 (West).
40
Compassionate Use Act of 1996, Wests Ann. Cal. Health & Safety Code 11362.5 (1996) (held to be preempted
by federal law in U.S. v. Landa, 281 F. Supp. 2d 1139 (N.D. Cal. 2003)
41
Dennis Romero, Marijuana Legalization in California Races Toward Ballot, LA Weekly (Feb. 6, 2014, 7:05
AM), http://www.laweekly.com/informer/2014/02/06/marijuana-legalization-in-california-races-toward-ballot.
42
COLO. CONST. art. XVIII, 16 (2012).
43
CAMPAIGN TO REGULATE MARIJUANA LIKE ALCOHOL, http://www.regulatemarijuana.org (last visited Mar. 9,
2014), https://www.change.org/organizations/crmla.
44
COLO. CONST. art. XVIII, 16 (2012).
45
Michael Martinez, Colorados Recreational Marijuana Stores Make History, CNN (last updated Jan. 1, 2014,
8:47 PM EST), http://www.cnn.com/2013/12/31/us/colorado-recreational-marijuana.
46
Alvin L. Arnold, Much Green for Legal Weed, 46 No. 24 MORTGAGE AND REAL ESTATE EXECUTIVES REPORT 2
(2014).
7

47

States that have begun to legalize marijuana to some extent, whether it is for medical
purposes, decriminalized, or for recreation, almost completely surround Idaho. This trend is not
isolated to the western United States; as of early 2014, 19 states and Washington D.C. have some
sort of medical marijuana law, 16 states have decriminalized it altogether, and two states (WA
and CO) have legalized it for sale.
48
As should be evident at first glance, and something that has
been recognized by two state courts, is that these marijuana legalization laws are preempted by
the federal CSA.
49
Although marijuana is legal for limited purposes according to some state law,
the CSA trumps any state law and federal courts may convict for violations of the CSA.
50

C. Approach by the Obama Administration (20092014)

47
NATIONAL ORGANIZATION FOR THE REFORM OF MARIJUANA LAWS, State info, NORML.org/states (last visited
Mar. 9, 2014).
48
Id.
49
Gonzales v. Raich, 545 U.S. 1, 29 (2005); Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230
P.3d 518, 536 (Or. 2010); See U.S. v. Landa, 281 F. Supp. 2d 1139 (N.D. Cal. 2003).
50
See U.S. CONST. Art. IV, Cl. 2 (The Supremacy Clause); U.S. v. Darby, 312 U.S. 100 (1941) (The power of
Congress over interstate commerce . . . can neither be enlarged or diminished by the exercise or non-exercise of state
power.).
8

The background feels complete, as if it is the beginning of the butting of heads between
state governments, which fulfill the role of laboratories of public policy,
51
and the federal
executive office, which has an obligation to enforce the laws passed by Congress.
52
Instead, the
executive office has acquiesced to the states marijuana laws. Although the administration is no
stranger to federal marijuana crackdowns,
53
beginning in 2009, under the guidance of recently
elected President Barack Obama and recently appointed Attorney General Eric Holder, federally
appointed U.S. attorneys received memorandum regarding the administrations approach to the
trend of state marijuana legalization.
54
These memos build off of each other, and provide
guidance to U.S. attorneys regarding the legality of marijuana in their jurisdiction and how to
approach prosecution.
55
Although the first two memos vaguely expand and contract how
liberally the administration will approach federal marijuana prosecutions, the third memo makes
clear that the administration will not prosecute for marijuana crimes in cases in which the person
is not in violation of their own state law.
56

The memos consistently state the federal governments commitment to the enforcement
of the CSA, but continue to list out priorities and exceptions to their general rule. The 2009
memo states that medical marijuana patients and their suppliers (caregivers) are not a priority for
prosecution under the CSA.
57
Instead, the Attorney General suggests a limitation to prosecution
of violations of the CSA in regards to marijuana in limited cases, including unlawful possession
or unlawful use of firearms, incidents that involve violence, sales to minors, sales inconsistent
with the spirit of the state law, sales of other controlled substances, or connections with
organized crime.
58

The 2011 memo expands on the 2009 memo by clarifying that U.S. Attorneys should
continue to target commercial marijuana grow operations and commercial marijuana shops for
prosecution.
59
More raids on shops followed the 2011 memo, which raised uncertainty, among
both pro- and anti-marijuana advocates, as to the stance of the current administration on medical
marijuana.
60


51
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Justice Brandeis dissenting).
52
U.S. CONST. art II, 3 (the take care clause).
53
See Matt Volz, Montanas Medical Marijuana Industry Goes Down, BUSINESS INSIDER (May 12, 2013),
http://www.businessinsider.com/montana-medical-marijuana-federal-crackdown-2013-5.
54
Memorandum for Selected United States Attorneys, Investigations and Prosecutions in States Authorizing the
Medical Use of Marijuana (Oct. 19, 2009), available at http://www.justice.gov/opa/documents/medical-
marijuana.pdf [hereinafter 2009 memo]; Memorandum for United States Attorneys, Guidance Regarding the Ogden
Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use (June 29, 2011), available at
http://www.justice.gov/oip/docs/dag-guidance-2011-for-medical-marijuana-use.pdf [hereinafter 2011 memo];
Memorandum from the Deputy Attorney General to All United States Attorneys, Guidance Regarding Marijuana
Enforcement (Aug. 29, 2013), available at http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf
[hereinafter 2013 memo].
55
See id.
56
See 2013 memo, supra note 54.
57
2009 memo, supra note 54.
58
2009 memo, supra note 54, at 2.
59
2011 memo, supra note 54.
60
FOXNEWS.COM, Feds under Obama Appear Tougher on Medical Marijuana, Disappointing Voters (Apr. 27,
2012), http://www.foxnews.com/politics/2012/04/26/obama-still-unclear-on-medical-marijuana/.
9

The 2013 memo, distributed the same year that Washington and Colorado were in the
midst of their legalization ventures, clarified much of the confusion by placing an emphasis on
non-prosecution in states that have a comprehensive regulation scheme that accompanies their
marijuana legalization.
61
It also created a new list of priorities that loosens up on the 2009
priorities and places an emphasis on keeping marijuana isolated to the states that have legalized
it to some extent.
62
Pro-marijuana advocates lauded the memo considering it an announcement of
a hands-off approach by the federal government.
63
Attorney General Holder met with the
Governors of Washington and Colorado to personally let them know how to best comply with
the federal governments leniency as laid out in the 2013 memo and how to go through the
process of legalization in their respective states smoothly.
64
This also puts the states in a strange
place, as they are not discouraged from implementing their state marijuana programs, but are
aware that federal intervention in the process could occur at any moment.
65
In conjunction with
the 2013 memo, the Department of Justices Department of Public Affairs released a statement
that emphasizes limiting the use of the federal governments enforcement mechanism to isolate
the availability of marijuana to the states that have legalized it.
66

Today, the federal governments approach to marijuana legalization is still in limbo. The
idea behind the 2013 memo is that if a state legalizes marijuana along with an effective
regulation scheme then the federal government will not prosecute individuals that are in
compliance with the state law.
67
The administration is expecting the states that have legalized
marijuana to establish strict regulatory schemes effective at mitigating the issues mentioned in
the 2013 memo.
68
The administration insists that if these standards are not met, the Department
of Justice will challenge the states schemes and prosecute at the individual level.
69
However, the
administrations increasingly soft language on the matter
70
leads to the conclusion this may be a
statement with all bark and no bite. Although marijuana advocates perceive this policy shift as a

61
2013 memo, supra note 54.
62
2013 memo, supra note 54, at 12.
63
Kevin Johnson & Raju Chebium, Justice Dept Wont Challenge State Marijuana Laws, USA TODAY (Aug. 29,
2013, 6:29 PM EDT), http://www.usatoday.com/story/news/nation/2013/08/29/justice-medical-marijuana-
laws/2727605/.
64
Id.
65
WASHINGTON STATE LIQUOR CONTROL BOARD, Faqs on I-502, http://lcb.wa.gov/marijuana/faqs_i-502 (last
visited Mar. 9, 2014) (questions and answers regarding federal preemption of I-502 under the federal government
section).
66
DEPARTMENT OF JUSTICE OFFICE OF PUBLIC AFFAIRS, Justice Department Announces Update to Marijuana
Enforcement Policy (Aug. 29, 2013), available at http://www.justice.gov/opa/pr/2013/August/13-opa-974.html.
67
2013 memo, supra note 54.
68
Id.
69
Id.
70
Compare 2011 memo, supra note 54 (stating that commercial operations cultivating, selling or distributing
marijuana are not the DOJs priority) with 2013 memo, supra note 54 (The Department of Justice is . . .
committed to using its limited investigative and prosecutorial resources to address the most significant threats in the
most effective, consistent, and rational way.) and DEPARTMENT OF JUSTICE OFFICE OF PUBLIC AFFAIRS, Justice
Department Announces Update to Marijuana Enforcement Policy (Aug. 29, 2013), available at
http://www.justice.gov/opa/pr/2013/August/13-opa-974.html ([T]he federal government has traditionally relied on
state and local authorities to address marijuana activity through enforcement of their own narcotics laws.
Essentially taking a hands-off approach.).
10

major victory, the entire scheme could be reversed with the stroke of a pen.
71
One group of
congressman, possibly in recognition of the take care clause problems associated with this
issue, urged the President to transfer marijuana between schedules.
72

The status of marijuana legalization/criminalization throughout the Northwest U.S. and
the federal government is currently in flux. Although federal law declares marijuana illegal, the
current administration has removed all bite from the CSA in those states that have legalized it for
some purposes. Many states have legalized to some extent and some have decriminalized. These
legalization efforts, which are in contradiction with federal law, bring up issues regarding the
balance between federal and states rights to govern, as well as how much power the federal
executive branch has to negate law duly passed by Congress.
III. Marijuana Criminalization in Idaho
Currently, in Idaho marijuana is illegal for any reason.
73
The stated opinions of all three branches
of the Idaho government, along with Idahos hyper-cumbersome citizen initiative process, do
away with the possibility of any marijuana legalization or de-criminalization in the near future.
This red state refuses to rhapsodically accompany its bordering neighbors in the trend of
marijuana legalization.
A. Efforts to legalize and Senate Concurrent Resolution 112
In 2011 and 2012, Republican State Representative Tom Trail brought two medical marijuana
bills before the Idaho legislature; the legislature defeated each bill.
74
The bill, if passed, would
have been one of the strictest state medical marijuana laws, allowing medical marijuana only for
a short list of debilitating diseases, and no patient would be allowed to grow their own plants.
75

Since Representative Trail decided to not run for reelection in 2012, no other Idaho legislative
member brought a similar bill since.
76

Similarly to Washington and Colorado, Idaho citizens could bring forward a ballot
initiative to legalize marijuana for recreational or medical purposes. The Idaho State Constitution
allows citizens to bring forward initiatives if they meet certain requirements.
77
The Idaho

71
Brady Dennis, Obama Administration will not Block State Marijuana Laws, if Distribution is Regulated, THE
WASHINGTON POST (Aug. 29, 2013), http://www.washingtonpost.com/national/health-science/obama-
administration-will-not-preempt-state-marijuana-laws--for-now/2013/08/29/b725bfd8-10bd-11e3-8cdd-
bcdc09410972_story.html.
72
Letter from Earl Blumenauer et al, a group of congressman, to Barack Obama, President of the United States (Feb.
12, 2014), available at http://blumenauer.house.gov/images/stories/2014/02-12-
14%20Blumenauer%20Rescheduling%20Letter.pdf.
73
Idaho Code ann. 37-2705(d)(23), 37-2732, 37-2372B, 37-2734B.
74
MARIJUANA POLICY PROJECT, Idaho (last updated November 18, 2013), http://www.mpp.org/states/idaho/.
75
House Bill 19, 61st leg., 1st sess. (2011), available at
http://www.legislature.idaho.gov/legislation/2011/H0019.pdf.
76
Dustin Hurst, Days Before Filing Begins, Several Candidates Declare their Intentions, IDAHOREPORTER.COM
(Feb. 24, 2012), http://www.idahoreporter.com/2012/days-before-filing-begins-several-candidates-declare-their-
intentions/.
77
Idaho State Constitution art. III, 1, cl. 3.
11

Constitution does not provide the procedure for bringing a citizen initiative, nor does it state the
required signatures needed to put a citizen initiative on the ballot.
78
Because of this, the
legislature creates its own standards, via statute, for placing an initiative on the ballot; although
the standard used to be 6% of all registered Idaho voters, in 2013, Idaho Senate Bill 1108
amended the standard to require 6% of registered Idaho voters with the additional requirement
that 18 of Idahos 35 legislative districts must each meet the 6% requirement in their districts.
79

Compare this to Washingtons requirement that the registered voter signatures on the petition
exceed 8% of the number of total votes cast in the last gubernational race
80
and Colorados
requirement that the total signatures meet or exceed 5% of the total votes cast for the Colorado
secretary of state in the last election.
81

Representative Trail publicly stated that a major reason for his decision to bring a bill to
the legislature is his opinion that the initiative process in Idaho would cost half a million to a
million dollars to organize.
82
He made this statement even before the Idaho legislature passed
Senate Bill 1108. As of 2014, in the face of the challenges associated with qualifying a bill for
the ballot, the group Compassionate Idaho is attempting to put together an initiative to be placed
on the November 2014 ballot.
83
The impracticality of the Idaho citizen initiative process and the
lack of measurable progress by Compassionate Idaho in putting an initiative on the ballot both
lead to the conclusion that an initiative to make marijuana legal in Idaho for any reason is not
foreseeable in the near future. However, if placed on the ballot, at least one study conducted by
the Boise State University suggests a hypothetical initiative could pass with a majority.
84

Simply because there are no current, viable legalization efforts does not mean the
legislature stands by quietly. In 2013, the Idaho legislature passed a Senate Concurrent
Resolution making clear their disdain for the possibility of any legalization efforts within the
state.
85
The resolution passed by an overwhelming 29-5-1 vote in the Senate and a 63-7-0 vote in
the House.
86
The resolution first states that the legislature disapproves of the legalization of
marijuana in Idaho for any reason.
87
The resolution then lists out several reasons why marijuana
is detrimental to the state including negative impact on public health and safety, the
detrimental effect on individual learning and brain development, and that drug legalization

78
Id.
79
S. Bill 1108, 62d Leg., 1st Sess. (2013), available at http://www.legislature.idaho.gov/legislation/2013/S1108.pdf;
Betsy Z. Russell, Idaho Governor Signs Bill Tightening Initiative Rules, The SPOKESMAN-REVIEW (April 3, 2013),
http://www.spokesman.com/stories/2013/apr/03/idaho-governor-signs-bill-tightening-initiative/.
80
Wash RCW 29A.72.150 (setting the statutory required number of signatures to qualify for the ballot); WASH.
CONST. art. II, 1 (creating a citizen initiative process).
81
Colo. Const. art. IV, 1, cl. 2.
82
Greg Meyer, Tom Trail makes his Case for Medical Marijuana, KLEWTV.COM (Apr. 19, 2010, 9:06 PM PST),
http://www.klewtv.com/news/91561549.html
83
COMPASSIONATE IDAHO, www.compassionateidaho.org (last visited Mar. 9, 2014).
84
Betsy Z. Russell, Three-quarters of Idahoans Back Medical Marijuana, THE SPOKESMAN-REVIEW (Feb. 8, 2011)
http://www.spokesman.com/stories/2011/feb/08/three-quarters-idahoans-back-medical-marijuana/.
85
S. Res. 112, 62d Leg., 1st Sess. (2013), available at http://legislature.idaho.gov/legislation/2013/SCR112.pdf
[hereinafter Senate Resolution 112].
86
Bill History of Senate Concurrent Resolution 112, STATE OF IDAHO LEGISLATURE (last visited Jan. 3, 2014).
87
Senate Resolution 112, supra note 85.
12

efforts in other states have led to social, economic, and legal chaos.
88
Relevant to the issue
raised in this comment, the resolution states that legalization/decriminalization in the
surrounding states have adversely impacted Idaho through cultural acceptance of drug use.
89

The aforementioned bill restricting the standards required to qualify an initiative for the ballot in
Idaho was passed during the same session that Senate Concurrent Resolution No. 112 was
passed. It would not be a stretch of the imagination to conclude the citizen initiatives in nearby
states that have successfully legalized marijuana, at a minimum, provided incentive to the Idaho
legislature to place further restrictions on the citizen initiative process.
The legislatures expression of distaste for marijuana in the state acts essentially with all
bark and no bite. The effect of this resolution compares to that of a federal sense of Congress
resolution, which is merely an expression of opinion of the Congress.
90
Although there are
several issues outlined in the resolution, little to no legal consequence follows. However, Senate
Concurrent Resolution 112 indicates how the legislature would likely vote if a bill to legalize
marijuana in Idaho was presented.
B. The Idaho Executive and Judiciary Branch
The legislatures sister branches of government support them, in their respective roles, in
their opposition to marijuana legalization in the state. The current governor has stated publicly
that marijuana legalization to any extent would be bad for the state, and the Idaho Supreme Court
consistently rejects state and federal constitutional arguments.
Governor C.L. Butch Otter publicly, and in his official capacity as governor, expressed
his opposition to a medical marijuana bill. In 2012, in response to Representative Trails medical
marijuana bill, Governor Otter stated he would not look in favor on that bill.
91
Governor
Otters stated reasoning came from a conversation with Montana Governor Brian Schweitzer,
where Schweitzer conveyed to Governor Otter that the legalization of medical marijuana in
Montana caused growers to outgrow the legal market and resort to selling their residual
marijuana illegally.
92
In light of Governor Otters opinion and in the unlikely event that a
medical marijuana bill were to pass the legislature, it would likely be vetoed by Governor Otter
in an attempt to avoid the issues the Montana Governor has experienced.
Finally, the Idaho Supreme Court has adjudicated several unsuccessful claims of a
constitutional bar to the states marijuana criminalization. For instance, recently in 2011 a man
charged with possession with intent to deliver argued a religious exemption under the first
amendment as a self-proclaimed practitioner of THC Ministries.
93
The court denied his religious
exemption claim holding that while religious belief may not be stifled by the state, religiously

88
Senate Resolution 112, supra note 85.
89
Senate Resolution 112, supra note 85.
90
Richard S. Beth, Bills and Resolutions, Examples of How each is Used, CONGRESSIONAL RESEARCH SERVICE
(Dec. 2, 2010), available at http://assets.opencrs.com/rpts/98-706_20101202.pdf.
91
CDAPRESS.COM, Otter: Dangers of Pot Outweigh Medical Benefits (last updated Jan. 27, 2012, 12:14 PM),
http://www.cdapress.com/news/local_news/article_c3d5e132-4921-11e1-812d-0019bb2963f4.html.
92
Id.
93
State v. Fluewelling, 249 P.3d 375, 376 (Idaho 2011).
13

motivated conduct may be prohibited if it is regulated under an otherwise valid statute of
general application.
94
Also, unlike the 1975 Alaskan Supreme Court, the Idaho Supreme Court
held that there is no fundamental right to smoke marijuana.
95
In response to the Alaska case,
Ravin v. State, which found that smoking marijuana was a fundamental right protected by a
provision of the Alaska state constitution, the Idaho Supreme Court stated that no similar
provision exists in . . . the Idaho Constitution.
96
Similarly to the attitudes of the Executive and
Legislative branches, the Idaho Supreme Court has been resistant to creating any judicial
exception for the legal use of marijuana.
C. Idahos Potential Trouble Regions
The change of policy in the surrounding states inevitably creates a higher availability of
marijuana throughout the region, which is bound to have a residual effect of Idaho. We will take
a look at three specific Idaho regions that will significantly be affected by these changes:
Moscow, Coeur dAlene, and Boise.
Moscow, ID is home to the University of Idaho, which sits less than 10 miles away from
Pullman, WA, home of Washington State University.
97
The demand and supply for legal
marijuana is likely to be high considering that 1) college age students smoke marijuana at a
higher rate than other age demographics, and 2) Washington State,
98
as a whole, smokes
substantially more marijuana than most of the country.
99
The ten-mile trek between cities
combined with the coming availability of marijuana in Pullman introduces the concern that
University of Idaho students will either drive to Pullman to purchase marijuana and then
transport it back to Idaho, thus making it more available in the state, or that Idaho students will
travel to Pullman, smoke marijuana, and then drive back to Moscow while under the influence of
marijuana, thus creating a danger to others on the interstate highway.
100
To stay these potential

94
Id. at 378.
95
Compare State v. Kincaid, 566 P.2d 763 (Idaho 1977) and State v. OBryan 531 P.2d 1193, 1198 (Idaho 1975)
(The right to smoke marijuana is not a fundamental right.) with Ravin v. State, 537 P.2d 494 (Alaska 1975)
(declaring that the criminalization of marijuana is unconstitutional under the Alaska state constitutions guarantee of
privacy provision).
96
State v. Kincaid, 98 Idaho 440, 442 (1977).
97
Any estimations of distance between cities is found on GOOGLE, Google Maps, maps.google.com (last visited
Mar. 9, 2014).
98
The State not the University.
99
WASHINGTON OFFICE OF FINANCIAL MANAGEMENT, Estimated Marijuana Use in Washington State (2012),
available at http://www.ofm.wa.gov/ballot/2012/Marijuana_Consumption_Worksheet.pdf; Katy Steinmetz,
Washington Residents Smoke Way More Weed than Officials Thought, TIME (DEC. 18, 2013),
http://nation.time.com/2013/12/18/washington-residents-smoke-way-more-weed-than-officials-thought/.
100
Kaitlin Gillespie, New Marijuana Law Could Cause Problems on the Palouse, THE SPOKESMAN-REVIEW
(December 6, 2012), http://www.spokesman.com/stories/2012/dec/06/new-marijuana-law-could-cause-problems-on-
the/; Karen Zatkulak, More Marijuana Could Cross State Line to University of Idaho, KTVB.COM (last updated
Nov. 25, 2013, 3:17 PM), http://www.ktvb.com/news/More-marijuana-crossing-state-line-into-Univerisity-of-Idaho-
--190948591.html.
14

dangers, the likely option for the Moscow police would be to increase their patrols along the
highway between Moscow and Pullman,
101
which will cost both Moscow and Idaho money.
The concerns that University of Idaho students will travel to Washington to purchase
marijuana is reminiscent of the 1970s and 1980s when the drinking age in Idaho was nineteen,
while the drinking age in Washington was twenty-one.
102
Deaths along the highway between
Moscow and Pullman were commonplace at the time because Pullman residents would drive to
Moscow, drink, and drive under the influence back to Washington; although no suggestion exists
that the marijuana legalization will be as bad, it certainly creates an issue of increased marijuana
trafficking to the marijuana-friendly students of the University of Idaho.
103
Although the city
initially intended to disallow marijuana shops from opening in the city, marijuana sales and
dispensaries in Pullman that open will be subject to strict regulations promulgated by the city
council.
104
Finally, it should be noted that although Washington allows marijuana to be
purchased and possessed for recreational purposes, due to federal funding stipulations,
Washington State University maintains their policy that marijuana is not allowed on campus.
105

So the combination of young college age students, a short distance of ten miles between the
towns, and a coming, large, and legal supply of marijuana is likely to cause issues for the city of
Moscow and, thus, Idaho..
Coeur dAlene is a small tourist destination with a population of about 40,000 in Idahos
pan-handle nestled in-between Washington and Montana, and less than an hours drive from
Spokane, WA, the fifth largest city in the northwest with a population of approximately
200,000.
106
As previously mentioned, Washington allows marijuana purchase and possession for
recreational purposes and Montana allows marijuana possession and purchase for medical
purposes. This means that a person transporting an otherwise legal amount of marijuana from
Washington to Montana, or vice versa, is a felon for the brief fifty-mile trek through Idaho. The

101
Kaitlin Gillespie, New Marijuana Law Could Cause Problems on the Palouse, THE SPOKESMAN-REVIEW (Dec. 6,
2012), http://www.spokesman.com/stories/2012/dec/06/new-marijuana-law-could-cause-problems-on-the/.
102
Lewiston Morning Tribune, Age Drops to 19: Taverns Await New Customers (Jun. 29, 1972) available at
http://news.google.com/newspapers?id=YNJRAAAAIBAJ&sjid=0zIMAAAAIBAJ&pg=5947%2C6709340 (article
on the drinking age being lowered); Sherry Devlin, Raising Drinking Age to 21 a Dilemma, THE SPOKESMAN-
REVIEW (Feb. 16, 1986) available at
http://news.google.com/newspapers?nid=1314&dat=19860216&id=LM4zAAAAIBAJ&sjid=NO8DAAAAIBAJ&p
g=5741,615016 (article on the drinking age being raised)
103
Kaitlin Gillespie, New Marijuana Law Could Cause Problems on the Palouse, THE SPOKESMAN-REVIEW
(December 6, 2012), http://www.spokesman.com/stories/2012/dec/06/new-marijuana-law-could-cause-problems-on-
the/.
104
Sophie Miraglio, Six Month Moratorium on Marijuana Approved by Pullman City Council, KLEWTV.COM (Sep.
25, 2013, 12:35 PM PST), http://www.klewtv.com/news/local/Pullman-pot-225202682.html; Rachel Dubrovin, City
of Pullman Plans Strict Regulations for Recreational Marijuana, KLEWTV.COM (Feb. 27, 2014),
http://www.klewtv.com/news/local/Pullman-pot-247573831.html.
105
WASHINGTON STATE UNIVERSITY, WSU Outlines Parameters for Initiative 502 Marijuana Law (Dec. 5, 2012),
http://news.wsu.edu/2012/12/05/wsu-outlines-parameters-for-initiative-502-marijuana-law/#.Ush6WfRDuSo; Drug
and Alcohol Abuse Prevention, 20 U.S.C.A. 1011i (2008) (federal law requiring universities that receive federal
funds to have a comprehensive marijuana policy).
106
COEUR DALENE CHAMBER OF COMMERCE, Area Information, http://coeurdalene.org/discover-cda/area-
information/ (last visited Mar. 9, 2014); UNITED STATES CENSUS BUREAU, State and County QuickFacts: Spokane,
WA (last revised Dec. 17, 2013, 12:31:11 EST), http://quickfacts.census.gov/qfd/states/53/5367000.html.
15

legality of marijuana in the states, combined with the fifty-mile transit between the states
naturally leads to the conclusion that marijuana will be trafficked between the two states more
often. In Coeur dAlene and Northern Idaho, few alternatives to raising patrols along the
highway and purchasing more drug sniffing dogs remain.
Finally, Boise is the third most populous city in the northwest
107
and the most populous
city in Idaho, thus creating a large market for marijuana.
108
Boise lies only 57 miles from the
Oregon border, and in 2012, Oregon trafficked 40% of Idahos marijuana into Idaho.
109
Boise
State University, home of 22,000 students in the fall 2012 semester, lies in central Boise.
110
The
high population; close proximity to a Oregon, a state with a medical marijuana law; and the large
college population, similarly to the issues that Moscow had, all combine to create a high risk of
marijuana being trafficked from marijuana-friendly Oregon into Idaho. County Sheriffs state that
since legalization in the surrounding states, marijuana trafficking into southern Idaho has
increased.
111
However, Boise police state that they have not seen a rise in marijuana possession
cases in the Boise area, but they hear that patrolmen see a higher rate of trafficking cases along
the highway.
112

These three cities do not monopolize Idahos issues associated with the marijuana
policies of neighboring states. In fact, Idaho State Police have claimed that, due to the
legalization and liberal attitude towards marijuana in the surrounding states, marijuana
trafficking in the state has tripled between the years 20082013.
113
As the United States Supreme
Court recognizes, intrastate activity (namely the legalization of marijuana to some extent in
certain states) has a direct effect on interstate commerce (marijuana leaking into Idaho from
those states where marijuana is legalized).
114
Legalization of marijuana in the surrounding states
will continue to effect Idaho detrimentally, so long as they must continue stepping up police
enforcement to match the increase in the supply of marijuana to the state funneled from the states
where it is legal. In order for Idaho to blunt the damage caused by legalization outside of its
control, Idaho must either, at a minimum, decriminalize it (which is unlikely to occur due to the
requirements of a citizen initiative and Senate Concurrent Resolution 112), or cause the federal

107
ASSOCIATED PRESS, Boise Now Northwests Third Most Populous City, THE SPOKES-MAN REVIEW (Apr. 25,
2005), http://www.spokesman.com/stories/2005/apr/26/boise-now-northwests-third-largest-city-at-208000/.
108
UNITED STATES CENSUS BUREAU, supra note 105.
109
John Cohen, Boise Fact Sheet, BOISE: CONVENTIONS AND VISITORS CENTER (last visited Jan. 6, 2014),
http://www.boise.org/uploads/PressRoomDocuments/PR-FactSheet.pdf; AssociatedPress, Idaho Arrests Highlight
Medical Marijuana Divide, YOUTUBE (July 6, 2012), http://youtu.be/g8_Wg200LSk.
110
BOISE STATE UNIVERSITY, FACTS AND FIGURES: 20122013, http://news.boisestate.edu/wp-
content/blogs.dir/1/files/2011/08/facts-figures-2014-digital.pdf (last visited Jan. 6, 2014).
111
Alison Gene Smith, Marijuana Makes its Way into Idaho from Neighboring States, MAGICVALLEY.COM (Mar.
14, 2013), http://magicvalley.com/news/local/crime-and-courts/marijuana-makes-its-way-into-idaho-from-
neighboring-states/article_29bcc5cc-a2a0-597a-9fd0-fb77db9c6062.html.
112
Ryan Thorne, Sticky Subject: Idaho Strictly Enforces Pot Laws despite Recent Legislation, THE ARBITER (Aug.
29, 2013), http://arbiteronline.com/2013/08/29/sticky-subject-idaho-strictly-enforces-pot-laws-despite-recent-
legalization/.
113
Justin Corr, Police: Marijuana Trafficking in Idaho Triples in Five Years (Nov. 13, 2013, 5:52 PM, updated Nov.
13, 2013, 6:17 PM), http://www.ktvb.com/news/Marijuana-trafficking-in-Idaho-triples-in-five-years-
231827851.html.
114
See Gonzales v. Raich, 545 U.S. 1 (2005).
16

government to enforce its own CSA. This leads to the primary question of this paper: Can Idaho
sue the federal government to enforce the CSA?
IV. The Standing Requirement
Idaho has standing because the federal governments refusal to enforce its own law directly
causes damage to Idaho. In order to bring a suit of any kind, a party must establish the minimum
constitutional requirement for standing derived by the courts from the case or controversy
constitutional requirement.
115
The constitutional standing standard espoused by the court in an
opinion authored by Justice Scalia consists of three irreducible elements, all of which must be
met: 1) the plaintiff must have suffered from injury in fact, 2) there must be a causal
connection between the injury and the conduct complained of, and 3) it must be likely that, by
judicial intervention, the injury will be redressed by a favorable decision.
116

An injury in fact requires an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.
117

As to the first requirement, Idaho suffers from an increase in marijuana being trafficked through
and into the state. This is a concrete injury because the costs of extra patrols, the costs of extra
drug sniffing dogs, and the societal costs as outlined in the Senate Concurrent Resolution 112
directly injure Idaho. In order for an injury to be particularized, the court requires that the
injury must affect the plaintiff in a personal and individual way.
118
They are particularized
because particular facts (i.e., the federal governments non-enforcement of the CSA in certain
states) are causing particular injuries (Idahos costs associated with the increase in marijuana in
the region). Secondly, these injuries are actual, in that they are actually occurring evident by the
increase in marijuana trafficking into Idaho over the last five years. Due to the acceleration of
legalization in the region, these injuries will imminently worsen.
Idaho meets the causal connection requirement because but for the governments non-
enforcement of the CSA, Idaho would not be suffering the increase in marijuana trafficking into
the state. The second requirement, that there must be a causal connection between the injury
and the conduct complained of, requires that the injury fairly can be traced to the challenged
action of the defendant, and not injury that results from the independent action of some third
party not before the court.
119
The fact that the damage caused to Idaho is indirect, in that it is
the surrounding states actions that are directly causing their injury, not the federal governments
inaction, makes causation requirement more difficult to show.
120
Although the damage is not
directly caused by the federal governments inaction, the test only requires that the damage be
fairly traceable to the action/inaction.

115
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); U.S. CONST. amend. art. III, 2, cl. 1.
116
Lujan, 504 U.S.at 560561.
117
Id. at 560.
118
Id. at n.1.
119
Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 4142 (1976).
120
See Allen v. Wright, 468 U.S. 737, 757758 (1984).
17

In Allen v. Wright, the plaintiffs alleged that the federal government was not enforcing their
own law that would remove tax exemption status form certain schools if those schools did not
meet certain requirements regarding public school integration, which caused their children injury
regarding their childrens diminished ability to receive an education in a racially integrated
school.
121
The plaintiff was not able to show that the non-removal of tax integration status
affected the plaintiffs legal rights or interests (the right or interest of having an integrated
education) because the line of causation between maintaining tax exemption status for the
schools that were not meeting their federally mandated requirements and desegregation of those
schools is attenuated at best.
122
The diminished ability of a child to receive a desegregated
education is fairly traceable to the illegal tax exemption status of those schools in the students
community only if so many of the schools within that community receive tax exemption status
that loss of those exemptions would make a noticeable difference.
123

Allen is an example of the third party problem. Is it really the government that is causing
the damage to those children by not removing tax-exempt status from schools that refuse to
integrate, or is it the schools that refuse to integrate causing the damage. This argument
differentiates government action that is designed to affirmatively alter behavior, and government
action that is designed to encourage or discourage behavior, such as the negative tax
consequences that should befall non-integrated schools in Allen, giving standing to those that
bring suits against the government in the former, but not the latter, situation.
In this case, the CSA is designed to affirmatively alter behavior. It carries with it criminal
and civil consequences,
124
and in recent history the federal government has gone out of its way to
shut down shops and grow rooms in violation of federal law.
125
So unlike the negative tax
consequences in Allen that were designed simply to encourage or discourage behavior, the CSA
is designed to affirmatively alter behavior. The increase in marijuana trafficking into Idaho
would not have happened but for the governments inaction in enforcing the CSA in states that
have legalized marijuana to some extent, and, at a minimum, the increase would not have been as
dramatic, therefore Idaho meets the causal connection requirement of standing.
Finally, that a decision in favor of the plaintiff would redress his injury must be likely
as opposed to speculative.
126
This is a fairly easy showing; for example, if the federal
government were to shut down the marijuana shops that will be in Pullman, WA by 2014, then
the issues discussed earlier (marijuana being trafficked into Idaho, the need for more patrols
along the border, the societal costs of more driving under the influence cases, etc.) will be
diminished and the cost to Idaho with it. Therefore, Idaho meets all three requirements of
standing.

121
Id. at 756759.
122
Id. at 757.
123
Id. at 758.
124
21 U.S.C. 841856 (2010) (offenses and penalties).
125
ASSOCIATED PRESS, Feds Crack Down on Hundreds of Medical Marijuana Shops in California (June 11, 2013),
http://www.businessinsider.com/feds-crack-down-on-hundreds-of-medical-marijuana-shops-in-california-2013-6.
126
Lujan, 504 U.S. at 561.
18

Alternative to the argument that Idaho has standing on the grounds that the state will
suffer injury due to the federal government not enforcing their law, is that Idaho could sue based
on a theory of parens patriae. Parens Patriae literally means parents of the country.
127
Parens
patriae may be invoked as a theory to standing when the defendants behavior harms the states
sovereign or quasi-sovereign interests including behavior [that] threatens the health, safety, and
welfare of the states citizenry.
128
In this case, there is a threatthe increase in the supply of
marijuana in the statedirectly caused by the federal governments lack of a response to
marijuana legalization. This threat, according to the Senate Concurrent Resolution 112,
129

directly affects the health, safety, and welfare of the citizens of Idaho, thus fulfilling the
requisite for parens patriae standing.
In Massachusetts v. EPA, the Supreme Court suggested that in cases of parens patriae, a
state may be entitled to special solicitude in the standing analysis.
130
This results in a rule that
entitles a state to more lenient standing criteria than ordinary citizens under the parens patriae
theory of standing because they have an interest in protecting their own citizens.
131
Although the
future of the special solicitude rule is unclear,
132
courts have historically been more lenient on
the states in regards to parens patriae standing.
133

Idaho would have standing in a federal court due to the likely injury caused by the non-
enforcement of the CSA. Alternatively, Idaho likely has standing under a theory of parens patriae
because of its special solicitude in the standing analysis.
V. The Take Care Claim
The Obama administrations lack of enforcement of the CSA in certain states is unconstitutional
on two grounds. First, it is abhorrent to the take care clause because his non-enforcement of the
law is solely for policy reasons. Additionally, the non-enforcement violates the equal
sovereignty among the states doctrine; which requires that, absent extreme circumstances,
federal law is to be applied equally among the states; because it is applied unequally among the
states and no such extreme circumstance exists here. Idaho is entitled to an order of injunctive
relief ordering the Attorney General to enforce the provisions of the CSA regarding marijuana.
A. The General Rule

127
Richard P. Ieyoub & Theodore Eisenberg, State Attorney General Actions, The Tobacco Litigation, and the
Doctrine of Parens Patriae, 74 TUL. L. REV. 1859, 1863 (2000) (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico,
458 U.S. 592 (1982)).
128
Id at 1863, 1864.
129
Senate Resolution 112, supra note 85.
130
549 U.S. 497, 520 (2007).
131
Bradford C. Mank, Standing and Future Generations: Does Massachusetts v. EPA Open Standing for
Generations to Come, 34-SPG ADMIN. & REG. L. NEWS 5, 14 (2009).
132
See EPA, 549 U.S. 497, 535 (dissent by Chief Justice Roberts).
133
See Mank supra, note 130 (stating that courts relax the immediacy and redressability prongs for states claiming
parens patriae standing).
19

The take care clause creates a duty that the president enforce law passed by Congress. To be
successful, any suit for injunctive relief requires that there actually be unlawful conduct. The
primary inquiry, in regards to the lack of enforcement of the CSA in those states, is whether
President Obamas administrations decision not to prosecute for marijuana where the person is
not in violation of state law is unconstitutional, and thus unlawful. In this situation, it seems clear
that if the Obama administrations lack of enforcement in certain states violates the duty placed
on his office by the constitution and that violation would likely injure Idaho, then Idaho should
be entitled to relief.
134
The Constitution establishes the general rule that the president is required
to enforce Congresss statutes.
135
While determining whether the Obama administrations lack of
enforcement in this situation is unlawful or not, we must pay special attention to exceptions to
the general rule, specifically whether the exceptions gives the administration discretion, and
additionally to what depth is that discretion allowed, to enforce federal law unequally among the
states.
The Founders envisioned the U.S. Government as a system that incorporated a series of
checks and balances and focused on separation between both 1) branches of government and 2)
state and federal power.
136
Although the constitution never specifically mentions checks and
balances, or separation of powers, they are, instead, principles derived from the framework of
the constitution.
137
These principles establish the foundation for the common expression the
legislature makes the laws, the executive branch enforces the laws[,] and the judiciary interprets
the laws.
138

Among the provisions that work together holistically to create a system of checks and
balances sits the take care clause, which sets forth the requirement that the President shall
take care that the laws be faithfully executed.
139
According to a 1755 dictionary, closely
abutting the period of the constitutions signing, to execute the laws faithfully means to put into
action; to do what is planned or determined.
140
The constitutions use of the term shall
explicitly imposes on the president a requirement as opposed to an allowance of discretion.
141
In
fact, as a derivative of the take care clause, the U.S. Supreme Court holds that the constitution
does not permit the President to refrain from executing laws duly enacted by the Congress as
those laws are construed by the judiciary.
142


134
See National Treasury Employee Union v. Nixon 492 F.2d 587, 590591 (1974) ([W]here a specific duty is
assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the
individual who considers himself injured, has a right to resort to the laws of his country for a remedy.).
135
U.S. CONST. art. II, 3.
136
See, e.g., THE FEDERALIST NO. 51 (Alexander Hamilton).
137
See U.S. CONST. art. IIII (divvying up power between the three branches of government, the legislative branch
(article I), the executive branch (article II), and the judicial branch (article III)).
138
Elizabeth Vaughan Baker, Usurping the Executive Power: State Board of Ethics for Elected Officials v. Green,
51 LA. L. REV. 911, 915 (1991).
139
U.S. CONST. art. II 3 (emphasis added).
140
Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administrations Nonenforcement of Immigration
Laws, The Dream Act, and The Take Care Clause, 91 Tex. L. Rev. 781 (2013).
141
Id.
142
National Treasury Employee Union v. Nixon, 492 F.2d 587, 604 (1974).
20

B. Exceptions
i. Generally
Although there exists a requirement that the President actually enforce the laws passed by
Congress, there also exist exceptions that allow the president some discretion on how and to
what extent those laws are enforced. First we will take a look at how the president blunts the
impact of Congresss duly passed laws, and second we will look at the accepted reasons for such
a blunting.
The President has three main methods to not enforce a law passed by Congress: first he
can refuse to enforce the law whatsoever,
143
second he could refuse to enforce the law to the
extent that Congress envisioned its enforcement,
144
and third he can refuse to defend the laws
constitutionality in court.
145
In the memos regarding marijuana, the Obama administration
unambiguously decided to not enforce the CSA in regards to marijuana under circumstances in
which someone 1) is in compliance with state law, and 2) that state law meets a standard that the
administration has deemed sufficient to meet the goals of marijuana enforcement set out in the
2013 memo; this places the Obama administration directly in the second category because he
continues to enforce the law, just not to the extent envisioned by congress.
146
Additionally, in
this case, the President acts with the least authority because he acts in direct contradiction to
Congresss authority.
147

Another delivery method of the information that a president plans to not enforce a law is
a signing statement. Presidents increasingly utilize signing statements into the 20th century.
148
A
signing statement is a written statement, usually released immediately after the signing of a bill,
regarding his thoughts on, or interpretation of, the law.
149
Historically, these signing statements
were used as a rhetorical device to make the Presidents opinion public.
150
However, presidents
have increasingly utilized signing statements to make apparent there are portions of the law he
will not enforce. For instance, President Herbert Hoover, who served as president between the
years of 19291933, wrote eleven signing statements as a rhetorical device to get out his opinion,
and one signing statement to express his concerns regarding a constitutional issue.
151
By the late

143
Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 921 (1989), available at
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2160&context=journal_articles (quotes James
Wilson, an author of article III of the constitution as saying under this constitution . . . the President of the United
States could . . . refuse to carry into effect an act that violates the constitution [in a manner similar to the Supreme
Court]).
144
See JAMES P. PFIFFNER, POWER PLAY: THE BUSH PRESIDENCY AND THE CONSTITUTION (2008) (exploring signing
statements made by President George W. Bush in which he makes clear he will not enforce certain laws in the way
the legislature intended).
145
See U.S. v. Windsor, 133 S. Ct. 2675 (2013) (in which Holder refused to defend DOMA, which the president had
interpreted as unconstitutional).
146
2013 memo, supra note 54.
147
Youngstown Sheet & Tube co. v. Sawyer, 343 U.S. 579, 634655 (1952) (Justice Jackson concurring).
148
PFIFFNER, supra note 143, at 196, 214.
149
See id.
150
Id.
151
Id. at 199.
21

20th century, these signing statements have become so common that Presidents Ronald Reagan
wrote 276 signing statements, seventy-one of which called into question the constitutionality of a
recently signed bill. President George H. W. Bush wrote 214, 146 of which called into question
the constitutionality of a bill. Bill Clinton wrote 391, of which 105 regarded the constitutionality
of the bill.
152
Using this method, a president could sign a bill that includes multiple provisions,
and then effectively nullify the provisions he disagrees with, usually due to his belief the bill is
not constitutional, immediately after the signing by stating his intent to do so.
Finally, a method that the Supreme Court found to be unconstitutional was the line-item
veto. Congress authorized the use of a line-item veto by the president in the 1990s
153
that
effectively gave the president an opportunity to reject portions of a bill at their signing based
only on his opinion that the funds expended would be wasteful.
154
The Supreme Court held this
power to be unconstitutional on the grounds that the bicameral presentment requirement
155
in the
constitution had been bypassed.
156
This reasoning supplies additional support that the presidents
non-enforcement of a duly passed law is unconstitutional because if a president cannot, in
harmony with the constitution, veto a portion of a bill at the signing of a law, he certainly cannot,
for all intents and purposes, constructively veto a law (via non-enforcement) well after it has
become law. The narrowly tailored power to veto portions of a bill in limited circumstances is
less intrusive than what is set out in the 2013 memo, which leads to the conclusion that it must
also be unconstitutional.
Although there are many methods to refuse to enforce a law, there exist far fewer
accepted reasons for a president to refuse to enforce Congresss legislation. The most accepted
reason for refusing to enforce a law would be the Presidents personal belief that the law is
unconstitutional.
157
The Presidents oath, which requires him to uphold the laws of the
constitution, establishes the constitutional foundation for this reasoning.
158
In a legal opinion by
the Honorable Abnor J. Mikva, he states that if the President, in exercising his independent
judgment, finds that both 1) a provision would violate the Constitution, and 2) it is probable
that the [Supreme] Court would agree with him then he may refuse to enforce the statute under
the reasoning that it is unconstitutional.
159
As an example, just recently the President, via
Attorney General Holder, refused to enforce or defend
160
certain provisions of the Defense of

152
Id. at 199.
153
Line Item Veto Act, Pub. L. No. 104-130 (held unconstitutional in Clinton v. City of New York, 524 U.S. 417
(1998)).
154
Clinton v. City of New York, 524 U.S. 417 (1998).
155
U.S. CONST. art. I, 7, cl. 23.
156
Clinton v. City of New York, 524 U.S. 417 (1998).
157
See generally PFIFFNER, supra note 143, at 194228.
158
U.S. CONST. art. II, cl. 8 (President must take an oath or affirmation to preserve, protect, and defend the
Constitution of the United States).
159
Walter Dellinger, Legal Opinion from the Office of Legal Counsel to the Honorable Abner J. Mikva, 48 Ark. L.
Rev. 313, 315 (1994).
160
Eric J. Holder, Jr., Letter from the Attorney General to Congress on litigation Involving the Defense of Marriage
Act, DEPARTMENT OF JUSTICE (Feb. 23, 2011), available at http://www.justice.gov/opa/pr/2011/February/11-ag-
223.html.
22

Marriage Act (DOMA) citing the laws alleged unconstitutionality.
161
Soon after that
announcement, the Supreme Court struck down the section of DOMA the administration
considered to be unconstitutional.
162
In the context of the refusal to enforce or defend DOMA,
the president fulfilled both requirementsthat he believe it is unconstitutional and that he
reasonably believes the Supreme Court would agree with him. No such similar situation exists
here. First, President Obama has not made public his belief that the CSA is unconstitutional in
regards to marijuana.
163
Second, because the Supreme Court has already expressly stated that
Congress has the authority to prohibit marijuana for any reason under the power of the interstate
commerce clause.
164

The presidents refusal to enforce a law that he personally believes to be unconstitutional
is generally constitutionally sound. However, there is no judicial precedent for allowing the
president to refuse to enforce a law based strictly on policy reasons. As mentioned earlier, the
take care clause places a requirement on the Presidents office to enforce law passed by
Congress.
165
In fact, at the writing of the constitution, the founders explicitly rejected a
presidential power to suspend or absolutely veto a law of Congress.
166
The founders believed
that to allow the president to dispense of portions of a statute he disagreed with would render
the execution of the laws dependent on his will and pleasure.
167
The Supreme Court held that, at
a minimum, the president has no authority to refuse to perform mere ministerial act[s].
168
At
least one author believes that outside of public challenges to the constitutionality of a law, along
with a statement of the grounds for such objection, there is little to no legitimacy for a president
to refuse to enforce a law.
169


ii. Equal Sovereignty among the States

Applying federal law unequally among the states, at first glance, seems unfair and in
violation of the principles of federalism.
170
For instance, imagine that a president were to enforce
the tax for not having health insurance imposed by the Affordable Healthcare Act only in
specific states relative to individual state policy. Regardless of the official reason stated that
seems inherently unfair. The Supreme Court has standard doctrine that protects equal

161
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. 7 (2006)).
162
U.S. v. Windsor, 133 S. Ct. 2675, 2693 (2013).
163
Although President Obama has hinted that marijuana laws generally target a select few, implying that there
may be an equal protection issue at hand, an issue that has not been decided by the Supreme Court. David Remnick,
Going the Distance, THE NEW YORKER (Jan. 27, 2014),
http://www.newyorker.com/reporting/2014/01/27/140127fa_fact_remnick.
164
Gonzales v. Raich, 545 U.S. 1 (2005).
165
See Delahunty, supra note 139.
166
PFIFFNER, supra note 143, at 196, 214.
167
Id. at 215.
168
Kendall v. U.S., 37 U.S. 524, 609613 (1838).
169
Id. at 227.
170
For a discussion on federalism, see John Minor Wisdom, Foreward: The Ever-Wheeling Wheels of American
Federalism, 59 NOTRE DAME L. REV. 1063 (1984).
23

sovereignty among the states, which requires a generally equal application of law among the
states.
The requirements for a departure from the equal sovereignty among the states doctrine
to be constitutional are 1) exceptional conditions, and 2) ineffective attempts to remedy those
conditions; additionally the law is more likely to look constitutional if it is temporary in
design.
171
The equal sovereignty among the states doctrine prohibits the unequal distribution of
law among the states with few exceptions.
172
The United States Supreme Court has stated, in
regards to what it takes to overcome this doctrine, that [e]xceptional conditions can justify
legislative measures not otherwise appropriate; the supreme court found the exceptional
conditions that allowed the Civil Rights Act of 1964s
173
extreme requirement of pre-approval
from the federal government for a change in voting procedure exclusive to specific states during
the 1960s
174
were the consistent institutional and cultural discrimination against certain minority
groups.
175
The court originally held for upholding these requirements in the 1966 case South
Carolina v. Katzenbach,
176
but struck down the requirements in 2013 with the case Shelby
County. The exceptional circumstances that initially allowed the unequal distribution of law
among the states in Katzenbach were that 1) there was a history of tests specifically designed to
keep certain minority groups from voting, and 2) case-by-case litigation had little to no long-
term effect on the voting structures in those areas.
177
This institutional racism resulted in a voting
turnout for minorities to be approximately fifty percent less than white voters, thus significantly
diluting their impact at the voting booth.
178
Supporting the constitutionality that these
exceptional conditions were appropriately met by a law that unequally applied to the states,
was that the law itself was initially designed to be temporary.
179
The departure from the
equal sovereignty among the states doctrine ultimately requires a showing that disparage
geographic coverage of the laws is sufficiently related to the problem that is targets.
180

Additionally, the temporary nature of such a remedy would strengthen the argument for its
successful exception to the equal sovereignty among the states doctrine.
181
Fifty years after the
Katzenbach decision, the Supreme Court recognized in Shelby County that dramatic changes
have occurrednamely that discriminatory evasions of federal decree have become rarethat

171
Shelby County, Ala. v. Holder, 133 S. Ct. 2612, 26232635 (2013)
172
Id. at 2618.
173
Civil Rights Act of 1964, 42 U.S.C. 2000e-2 (1964).
174
42 U.S.C.A. 1973b (2008) (providing that covered jurisdictions must have any alterations to their voting
scheme pre-approved by the federal government before those changes are implemented) (held unconstitutional by
Shelby County, Ala. v. Holder, 133 S. Ct. 2612, 2618, 2619 (2013)).
175
Shelby County, Ala., 133 S. Ct. at 2618, 2619.
176
383 U.S. 301 (1966).
177
Shelby County, Ala., 133 S. Ct. at 26242625 (citing Katzenbach, 383 U.S. 301).
178
Id.
179
Id. at 2625 (this extraordinary legislation was intended to be temporary, set to expire after five years).
180
Id. at 26152616 (quoting Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193, 203
(2009)).
181
Id. at 2625
24

cause the exceptional circumstances required for a disparity in application of law among the
states to no longer exist.
182

Although the court, so far, has applied its equal sovereignty among the states doctrine
exclusively to legislative action, the same logic applies to executive non-enforcement of law
because executive action can have the same effect as if Congress decided to only apply the CSA
to states that had not legalized marijuana. In the early 1900s, the Supreme Court articulated that
[t]his Union was and is a union of states, equal in power, dignity, and authority.
183

The non-enforcement of the CSA in those states that have legalized marijuana to some
extent is even less appropriate in light of the equal sovereignty among the states doctrine. This
is because state legalization of marijuana is not an exceptional condition of the same caliber as
prominent and institutionalized racial segregation at the polls. Nor is the disparate enforcement
of the CSA sufficiently related to the problem that it targets.
184
Because there are no
exceptional circumstances, nor is the non-enforcement geographically linked to a problem to be
targeted, there is no need to inquire as to whether there have been effective remedies to remedy
those circumstances. This doctrine brings very strong arguments against application of the 2013
Attorney General memo regarding marijuana.

iii. Lack of Funds

The executive office does have the discretion to distribute funds they receive in an
appropriate manner.
185
Consistent with the theme that the President has most discretion in his
authority as commander and chief is that most of the presidents budgetary discretion is in the
realm of foreign affairs.
186
Discretion to interpret law or alter the enforcement of a law due to
budgetary concerns is given more weight depending on the executive officers placement on the
executive offices chain of command,
187
of which the President and Attorney General, whom
gave the order to U.S. attorneys to not enforce marijuana laws in certain states, are at the top.
The President is allowed more discretion to refuse to enforce a law when there are
insufficient resources, which occurs when he simply has not been appropriated the required
funds to enforce the law.
188
However, derivative of the equal sovereignty among the states
discussion above is that the president would have to argue that his budget allows him to enforce
the law in some states, but not in othersa self-defeating argument. This argument is self-
defeating because the cost to shut down a notorious marijuana dispensary in a state where

182
Id. at 2625.
183
Coyle v. Smith, 221 U.S. 559, 567 (1911) (arguing that allowing Congress to impose additional restrictions on
new states as a condition of admittance would impose laws unequally on the states, and would likely be
unconstitutional).
184
Shelby County, Ala., 133 S. Ct. at 26152616 (quoting Northwest Austin Municipal Utility District No. 1 v.
Holder, 557 U.S. 193, 203 (2009)).
185
See Louis Fisher, Presidential Discretion and Congressional Controls, 37 LAW & CONTEMP. PROBS. 135 (1972),
available at http://scholarship.law.duke.edu/lcp/vol37/iss1/.
186
See id.
187
Barr v. Matteo, 360 U.S. 560, 57374 (1959).
188
Id.
25

marijuana is legal, is likely to be less than the cost to shut down a hidden marijuana dispensary
or dealer in a state where marijuana is illegal, a practice that the federal government continues.
The lack of funds argument falls apart when the law is appropriately enforced in some states, but
not others.

C. An Unconstitutional Appropriation of Power

The presidents authority to refuse to enforce a law primarily rests on his reasoning for
refusing to enforce that law. Here, President Obamas administration is not enforcing the CSA as
it pertains to marijuana in certain states predominantly due to his own policy reasons. In a 2014
interview, President Obama stated he believes marijuana to be [no] more dangerous than
alcohol.
189
However, the marijuana memos cite a need to expend the federal governments
resources efficiently and the historical relationship between the federal government, and state
and local police forces, in which the state and local police forces are the primary enforcers of
marijuana law at the local level.
190
Although the President refuses to enforce the law based on his
own personal policy reasons, he has hinted that there may be an equal protection issue involved
with the enforcement of federal marijuana laws by saying that hard penalties for marijuana
possession are being applied unequally, and usually with a racial disparity.
191

The marijuana memo cites the need to expend the federal governments resources
efficiently.
192
However, the cost to shut down a marijuana shop in a state where recreational or
medical marijuana is legal should be relatively similar to the cost to shut down a marijuana shop
in a state where it is illegal. Additionally, shutting down a shop in a state where marijuana is
legal is likely to require less funds because the shops will be operating publicly, as opposed to
underground shops or dealers in states where marijuana is illegal.
The marijuana memo also cites the traditional relationship between the federal, and state
and local governments, in which the state and local governments historically take the lead in
enforcing marijuana laws.
193
However, that relationship serves as no excuse when the federal
government would shut down a marijuana shop that opened in Moscow, ID, but would not shut
one that opened in Pullman, WA, simply because of state law.
Although the administration rhetorically holds to its publicly-stated opposition to
marijuana, going so far to state on its website [t]he administration steadfastly opposes
legalization of marijuana because legalization would increase the availability and use of illicit
drugs, and pose significant health and safety risks to all Americans, particularly young people,

189
David Remnick, Going the Distance, THE NEW YORKER (Jan. 27, 2014), available at
http://www.newyorker.com/reporting/2014/01/27/140127fa_fact_remnick.
190
Id. at 1, 2.
191
CNN.COM, Obama Talks about Pot (Jan. 31, 2014),
http://edition.cnn.com/video/data/2.0/video/world/2014/03/07/ukraine-crimea-osce-blocked-chance-lklv.cnn.html.
192
2013 memo, supra note 54, at 2.
193
2013 memo, supra note 54, at 2.
26

its actions have proven otherwise.
194
In another contradictory message, President Obama stated
in a recent interview that removing marijuana from the CSA was Congresss Job.
195
It is not
within his authority to refuse to enforce law based on policy considerations. By passing the CSA
in the 1970s and continuing to allow the CSA to be controlling law, Congress pronounced that it
is in the nations best interest to criminalize marijuana at the federal level. If sufficient public
interest exists to remove marijuana from the list of prohibited substances on the CSA, it is up to
Congress to meet that demand. Additionally, Congress authorized the President to re-categorize
or remove marijuana from the controlled substances categories altogether subject to a rules-
making process.
196
Ultimately, the Controlled Substances Act provides procedure for the
President to accomplish their goal of not enforcing the CSA as it relates to marijuana; that
procedure must be followed.
This is a situation of gross overstretch of the executive branchs purported authority to
refuse to enforce law. Idaho could bring a suit against Attorney General Eric Holder for
injunctive relief requiring that he enforce the laws duly passed by Congress.
D. Policy Reasons for Idaho to Sue
It is one thing to have a viable claim for injunctive relief; the policy reasons for taking the
risk and cost associated with a lawsuit against the federal government must also be considered. I
argue there are two primary reasons that Idaho should bring this suit. First, Idaho should sue for
the selfish reason that Idaho simply does not want marijuana in its state, and the non-
enforcement of the CSA in the states bordering it have, and will continue to, make marijuana
more available in its state. Second, it creates the dangerous precedent that future presidents may
diminish the effectiveness of a law that they disagrees with for policy reasons to the point that it
is a law only in name. This second reason for suing takes into account the long-term
consequences of allowing the president to enforce law as he sees fit. Additionally, there are
likely other states in a predicament similar to Idahos own, so a lawsuit of many states against
the federal government may be possible in order to mitigate costs of the suit.
First, the Idaho government stands strongly against the spread of marijuana into its state.
As previously discussed, Senate Concurrent Resolution No. 112 makes clear the legislatures
opposition to marijuana legalization in the state because of the detrimental effects that would
accompany legalization.
197
Their desire to keep marijuana out of the state stems primarily from
concerns of the state.
198
One of those concerns is that marijuana use has a detrimental effect on

194
THE WHITE HOUSE OFFICE OF NATIONAL DRUG CONTROL POLICY, Marijuana,
http://www.whitehouse.gov/ondcp/marijuana (last visited Mar. 9, 2014).
195
CNN.COM, Obama Talks About Pot (Jan. 31, 2014),
http://edition.cnn.com/video/data/2.0/video/politics/2014/01/31/newday-jake-tapper-obama-marijuana-
legalization.cnn.html.
196
21 U.S.C.A. 811(a) (2013) (stating that the Attorney General may by rule remove or downgrade a drug in
schedules if he finds it does not meet the requirements for that schedule, but this rule making authority is only
allowed via a hearings process initiated by the Attorney General).
197
Senate Resolution 112, supra note 85.
198
Id.
27

individual learning and brain development, which obviously has an impact on the education of
the state, which is an area that Idaho is trying to improve on.
199
Recently, Idaho has received well
below average scores for education among the states including being 49/50 in the school
finance category and last place for the teaching profession.
200
The 2014 State of the State and
Budget Address by Governor Otter heavily emphasized his goal of drastically improving Idahos
educational system.
201
With 1) a substantial increase in education funding in the state and 2) the
possibility that the increased availability of marijuana in Idaho could offset the investment in the
Idaho educational system, it seems apparent that Idaho has a strong personally-motivated
incentive to bring this suit for injunctive relief. Finally, there is potential that the cost and
publicity associated with a civil suit against the federal government in this case will incentivize
the federal government to settle the matter quickly. A hypothetical settlement could result in
federal funds provided to states detrimentally affected by the marijuana legalization of its
neighbors, which would both 1) mitigate damages suffered by Idaho and similarly situation
states, and 2) allow Idaho to pursue the principles laid out in Senate Concurrent Resolution 112.
Second, acquiescing to the non-enforcement of duly passed law sets a dangerous
precedent that allows the president more power than even the line-item veto would have, which
the Supreme Court expressly declared to be unconstitutional.
202
The Constitution expressly
conveys specific powers to the president, of which the non-enforcement of duly passed law for
policy reasons is expressly prohibited by the constitution and Supreme Court case law.
203
The
current administration utilizes the non-enforcement of laws to further its own agenda at a much
higher rate than most previous administrations.
204
Historically, presidents grant themselves
power beyond that expressly provided in the constitution due to the ambiguous nature of our
Constitution and acquiescence to presidential usurpation.
205
By not interfering when a president
essentially nullifies law via non-enforcement, the states deliver the message that the president
and federal government will face no consequences for non-enforcement in the future. If the states
that are injured by this unconstitutional usurpation of power stand idly by, it is more likely that
non-enforcement of law will become a presidential norm.
President Andrew Jackson changed what it meant to be the United States President, and
in doing so, expanded presidential power greatly.
206
Before he took office, it was almost

199
Id.
200
EDUCATION WEEK RESEARCH CENTER, IDAHO: STATE HIGHLIGHTS 2 (2014), available at
http://www.edweek.org/media/ew/qc/2014/shr/16shr.id.h33.pdf.
201
Governor C.L. Butch Otter, State of the State and Budget Address (Jan. 6, 2014), available at
http://gov.idaho.gov/mediacenter/speeches/sp_2014/State%20of%20the%20State%202014%20(2).pdf.
202
Clinton v. City of New York, 524 U.S. 417 (1998).
203
U.S. CONST. art. II.
204
See Delahunty, supra note 139 and Neal Devins & Saikrishna Prakash, The Indefensible Duty to Defend, 112
Colum. L. Rev. 507 (2012), but see PFIFFNER supra note 143 (providing evidence of the Bush administrations use
of similar tactics).
205
Terry M. Moe & William G. Howell, Unilateral Action and Presidential Power: A Theory, 29 Presidential
Studies Quarterly 850, 853 (1999).
206
See John C. Woo, Andrew Jackson and Presidential Power, 2 CHARLESTON L. REV. 521, 525526 (2008) (article
using examples of Andrew Jacksons time as president to show how the powers of the president can be pushed to
their limit).
28

unthinkable that a president would use his veto power for anything other than keeping a law that
he believed to be unconstitutional from becoming law.
207
However, he did what was thought
unthinkable at the time; he vetoed laws for policy reasons.
208
Since his tenure in office, and
partially due to the fact that he was not challenged on the subject, vetoing a law for policy
reasons is now the presidential norm.
209

At a conference in Virginia, speaking in support of Virginia ratifying the newly written
draft of the U.S. Constitution, James Madison warned [s]ince the general civilization of
mankind, I believe there are more instances of the abridgment of the freedom of the people by
gradual and silent encroachments of those in power, than by violent and sudden usurpations.
210

Setting a precedent that allows the president to essentially nullify law for policy reasons, without
challenge, is a conveyance of power disproportionate to that within the spirit of our Constitution,
and by idly sitting by, we implicitly convey that power.
Finally, other states that have not legalized marijuana in their state may be similarly
situated, and thus have an incentive to join Idaho in their suit. Potential states could include
Idahos anti-marijuana neighbors Utah and Wyoming. In joining other states in its suit, Idaho
could pursue its own interests, along with the interests of those similarly situated states, and keep
the costs of the lawsuit down.
Idaho should sue the federal government to enforce its own prohibition against marijuana
because Idaho has both selfish and politically significant reasons, and other similarly-situated
states could keep the cost and time associated with the suit down by joining Idaho in the suit.
VI. Conclusion
This is essentially a continuation of the conflict that has occurred since our countrys
founding. What is too much power for one branch of government? Choosing to not enforce law
duly passed by congress takes one step too many beyond the restricted powers constitutionally
granted to the executive branch. This is not an argument between voters that are pro-marijuana
and anti-marijuana; instead this is a question over whether it is acceptable for one branch of
government to snatch the power to nullify law. The answer should be intuitive regardless of your
personal political affiliation. Even if you believe whole-heartedly that marijuana should be legal,
imagine that a president elected into office in the near future decides that he will not enforce the
Patient Protection and Affordable Healthcare Act
211
(otherwise known as Obamacare), or he
decides to halt a majority of the benefits paid out through Medicare or Medicaid. Should a
president be able to nullify law by making a half-hearted excuse and sending out a
memorandum? I think not.

207
Id.
208
Id.
209
Id.
210
James Madison, Speech before the Virginia Ratifying Convention on June 6, 1788, The Constitution Society (ed.
Jon Roland), available at http://www.constitution.org/rc/rat_va_05.htm.
211
Patient Protection and Affordable Healthcare Act, Pub. L. No. 111148, 124 Stat. 124 (2010).
29

Idaho can make a positive change at the national level by engaging in the struggle that
our constitution was designed to induce. If, instead, the states affected by this non-enforcement
of law sit complacent in the face of such a significant power grab, it will create an unfavorable
precedent that essentially hands over even more power to the president than he already has. After
all, the [p]resident does what the political process allows him to door to get away with.
212


212
Arthur S. Miller, The President and Faithful Execution of the Laws, 40 VAND. L. REV. 389, 399 (1987).