The leading legal commentary on marijuana legalization still draws on Atty. Howard Trapp’s comments from February in the Post, where he states: “all Guam law is an extension of federal law through the Organic Act, which specifically prohibits the enactment of any law that contradicts existing federal law.”
But the issue is not as clear-cut as Atty. Trapp suggests. First—while Guam law flows from the Organic Act, it would be inaccurate to say that “all Guam law is an extension of federal law.” The Ninth Circuit has recognized that Congress, in the Organic Act, evinced “clear intent to allow Guam to develop its own, independent institutions.”
EIE Guam Corp. v. Supreme Court of Guam, 191 F.3d 1123, 1127 (9th Cir. 1999). That congressional intent also “allow[s] the Guam Supreme Court to develop Guam’s common law” and “to develop sufficient legal traditions and precedent.” Haeuser v. Department of Law, 368 F.3d 1091, 1099 (9th Cir. 2004).
Common law typically is a creature of state, rarely federal, origin. And the Supreme Court of Guam has recognized that the Guam Legislature may play a role in defining common law. For example, in GIAA v. Moylan, 2005 Guam 5, 2 (Feb. 8, 2005), the Supreme Court held that the “common law powers and duties [of the Attorney General] may be subject to increase, alteration or abridgement by the Guam Legislature.”
Because criminal law derives from both statutory and common law, one can argue Sen. Clynt Ridgell’s bill has roots in common law, and thus would be part and parcel of Guam’s ability to “develop its own, independent institutions.”
At the minimum—because of Guam’s ability to define local common law, it would be oversimplistic to state that “all Guam law is an extension of federal law.” Second—Atty. Trapp’s comment appears to conflate two issues: the federal scheduling of cannabis as a controlled substance, on one hand, and federal enforcement against illegal possession of controlled substances, on the other. On the first issue, Congress has shown no intent, through the Organic Act or otherwise, for the federal schedule on controlled substances to preempt Guam’s schedule. And Congress has such power to compel—for example, the Organic Act requires our tax code to mirror the federal tax code (until we establish our own).