The Federal Role in Legalizing Marijuana

by Reihan Salam

This weekend, the New York Times called on the federal government to repeal its ban on marijuana:

There are no perfect answers to people’s legitimate concerns about marijuana use. But neither are there such answers about tobacco or alcohol, and we believe that on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization. That will put decisions on whether to allow recreational or medicinal production and use where it belongs — at the state level.

We considered whether it would be best for Washington to hold back while the states continued experimenting with legalizing medicinal uses of marijuana, reducing penalties, or even simply legalizing all use. Nearly three-quarters of the states have done one of these.

But that would leave their citizens vulnerable to the whims of whoever happens to be in the White House and chooses to enforce or not enforce the federal law.

In 1996, the editors of National Review went even further, declaring the war on drugs a failure and calling for the legalization or decriminalization of a number of narcotics, including cannabis. 

Some form of cannabis legalization is, at this point, all but inevitable. But how do we want this process to unfold? The Times’ editorial board argues that decisions about the production and use of cannabis and related products should be left to state governments, yet the emerging legal cannabis markets actually do raise legitimate questions about interstate commerce, as marked variations in the regulation and taxation of cannabis would likely lead to interstate smuggling on a grand scale. 

In the Washington Monthly, Mark Kleiman has advocated a strong federal role in shaping legal cannabis markets:

What’s needed is federal legislation requiring states that legalize cannabis to structure their pot markets such that they won’t get captured by commercial interests. There are any number of ways to do that, so the legislation wouldn’t have to be overly prescriptive. States could, for instance, allow marijuana to be sold only through nonprofit outlets, or distributed via small consumer-owned co-ops (see Jonathan P. Caulkins, “Nonprofit Motive”). The most effective way, however, would be through a system of state-run retail stores.

Yet conservatives will find Kleiman’s particularly method for achieving this end discomfiting, as it goes against the logic of dual or competitive federalism, in which the federal and state governments stick to their own lane:

How could the federal government get the states to structure their pot markets in ways like these? By giving a new twist to a tried-and-true tool that the Obama administration has wielded particularly effectively: the policy waiver. The federal government would recognize the legal status of cannabis under a state system—making the activities permitted under that system actually legal, not merely tolerated, under federal law—only if the state system contained adequate controls to protect public health and safety, as determined by the attorney general and the secretary of the department of health and human services. That would change the politics of legalization at the state level, with legalization advocates and the cannabis industry supporting tight controls in order to get, and keep, the all-important waiver. Then we would see the laboratories of democracy doing some serious experimentation.

“Government-by-waiver” is not ideal. Rick Hess of the American Enterprise Institute has been a consistent and passionate critic of the Obama administration’s use of waivers to paper over deep problems with the No Child Left Behind Act and to impose its will on recalcitrant state governments. So why is government-by-waiver appropriate in the case of cannabis regulation and not K-12 education? The statute Kleiman envisions is fundamentally different from NCLB, which (in theory) “imposes blunt, uniform remedies for perceived institutional failings across varied schools and dissimilar communities,” in the words of Hess and Chester E. Finn Jr. These remedies were so blunt and so uniform that it became politically impossible to actually impose them, hence the waivers and the coercion they represent. NCLB represented an expansion of federal power over the states. In contrast, a law that formally and explicitly permits state governments to create regulated cannabis markets, provided they meet certain baseline standards, actually expands state power. Right now, the only thing state governments working to create such markets have to shield them against large-scale federal intervention is a nonbinding assurance from the Justice Department that could be reversed under the next president. Kleiman’s proposal offers something to supporters and opponents of legalization:

Though legalization has made headway in states with strong initiative provisions in their constitutions, it’s been slow going in other states in which legalization has to go through the legislature, where anti-pot law enforcement groups can easily block it. So it could be many years before legalization reaches the rest of the country or gets formal federal approval that removes the stigma of (even unpunished) lawbreaking from cannabis users. Rather than wait, legalization advocates might be willing to accept something short of full commercialization; some of them actually prefer a noncommercial system. Meanwhile, those who have been opponents of legalization heretofore might—with the writing now on the wall—decide that a tightly regulated and potentially reversible system of legal availability is the least-bad out-come available.

Kleiman acknowledges that the prospects for legislation along these lines are bleak, at least in the near term. There are, however, good reasons for conservative lawmakers to back such a proposal, ranging from its cultural appeal to responsible cannabis users and the ways in which it makes the federal relationship to states seeking to legalize cannabis less arbitrary and capricious.