Law & the Courts

Marijuana Policy Is Best Left Up to the States

Selling marijuana at a farmer’s market in Los Angeles in 2014. (Reuters photo: David McNew)
The Trump administration’s apparent desire to rekindle the federal war on pot is misguided.

In withdrawing federal protection for transgendered students, the Trump administration paid tribute to our federalist system. “The president believes that this is a states’ rights issue,” said White House spokesman Sean Spicer, “We are a states’ rights party. The president in a lot of issues believes that these issues are states’ rights issues.”

Yet, hours later, the administration had little use for federalism in announcing that it would “punish” states that legalized marijuana. According to Spicer, we should expect to see “greater enforcement” of federal marijuana laws, regardless of states’ marijuana laws.

The president’s contradictory stances on these two issues are not just a matter of ideological inconsistency, either; a renewed war on pot would be bad policy.

In the last few years, eight states and the District of Columbia have legalized recreational marijuana. Another 28 states have legalized the use of marijuana for medical purposes. But despite this shift, police still made more than 574,000 arrests in 2015 for simple marijuana possession. To put that in perspective, there were fewer than 506,000 arrests that year for murder, non-negligent manslaughter, rape, robbery, and aggravated assault. That means more people were arrested for marijuana possession than for all violent crime combined.  Does anyone really believe that this is a good use of police resources, or that federal agents should be ignoring serious crime and terrorism in order to chase after legal-weed users and producers in Colorado or Washington?

In speaking of the federal crack down on pot, Spicer linked marijuana legalization with increased use of other drugs including opioids. “When you see something like the opioid-addiction crisis blossoming in so many states around this country, the last thing we should be doing is encouraging people,” he said. But studies of Colorado’s experience with legalized marijuana show no increase in pot use among young people, and a decrease in consumption of other drugs as well as in binge drinking.

Donald Trump, of course, sees himself as the “law and order” president. This was a key plank in his campaign, and he has continued to make it a key part of his agenda as president. He regularly meets with police and other law-enforcement officials, and is effusive in praising their work. But a renewed war on pot may actually undermine the president’s goals. Studies show that states that have legalized marijuana have seen a small but statistically significant decline in crime rates, including reductions in rape, larceny theft, property crime, and drunk and disorderly arrests. Plus which, marijuana legalization frees up police and prison resources for use in combating more serious crimes.

President Trump has repeatedly spoken of his desire to take on Mexico’s drug cartels, even musing about sending US troops to Mexico to fight drug traffickers. And, of course, one of the stated purposes of his signature border wall is to stop “drugs pouring into this country.”  But if he really wants to hurt the cartels, he should leave marijuana legalization alone. The increased availability of legal, domestic marijuana has already reduced the demand for, and consequently the price of, Mexican marijuana, costing the cartels millions of dollars. One Mexican think tank calculated that if the United States legalized marijuana nationwide, the cartels would lose as much as $1.6 billion of their annual $2 billion in drug-smuggling revenue.

Even if these projections prove overly optimistic, one doesn’t need to support legal marijuana to think that law-enforcement decisions, even more so than civil-rights protections, are best left up to the 50 states. It’s hard to believe that our country’s founders envisioned the federal government as a national sheriff. Indeed, the Constitution itself specifies just four federal crimes: treason, piracy, counterfeiting, and crimes committed on the high seas or against the law of nations. Today, the Congressional Research Service estimates that there are more than 4,000 federal offenses. On average, Congress creates 50 new federal crimes every year. The Trump administration’s fair-weather federalism is furthering this dangerous trend.

The good news is that so far, the Trump administration’s “war on pot” has been more talk than action. That means there is still time for the White House to realize that law enforcement’s treatment of drugs is still very much a “states’ rights issue.”

Michael Tanner — Michael Tanner is a senior fellow at the Cato Institute and the author of Going for Broke: Deficits, Debt, and the Entitlement Crisis. You can follow him on his blog,

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