In the past twenty years, the United States has witnessed over half of its states create marijuana laws that expressly contradict the federal government’s complete ban of the drug. Nine states have completely legalized marijuana for recreational use in the past five years alone. Meanwhile, much of the country remains staunchly opposed to legalization in any form. This difference between state and federal law has the largest negative impact on noncitizens, namely lawful permanent residents whom reside in states that follow the federal government’s complete ban. Congress’s Immigration and Nationality Act broadly defines “conviction,” so even minor drug convictions under the Controlled Substances Act—like simple possession of marijuana—render lawful permanent residents deportable.
This problem is a constitutional violation because lawful permanent residents found possessing marijuana in a legal-regime state suffer no consequences; whereas one found possessing marijuana in an illegal-regime state is arrested and immediately taken to an immigration detention center to await potential deportation. This disparate treatment results from a sole difference between the two noncitizens: their geographic location. Thus, the federal government’s failure to uniformly enforce its marijuana laws constitutes a violation of lawful permanent residents’ Fourteenth Amendment right to equal protection. Although Congress has traditionally been afforded great deference when constructing the country’s immigration laws under the plenary power doctrine, such a disparate result supports the argument that the government’s failure to act has no rational basis in its own laws, which demands action.
This Comment argues that the federal government is depriving lawful permanent residents of their Fourteenth Amendment constitutional right to equal protection by refusing to uniformly enforce its marijuana laws. Thus, lawful permanent residents experience disparate treatment and face potential deportation based solely on their geographic location.
Reefer Madness: The Constitutional Consequence of the Federal Government's Inconsistent Marijuana Policy,
Tex. A&M L. Rev.
Available at: https://scholarship.law.tamu.edu/lawreview/vol6/iss3/5