Oregon’s decriminalization of hard narcotics should compel the feds to end the ambiguity over drug policy — while respecting state sovereignty.
Oregon’s decriminalization of hard narcotics should compel the feds to end the ambiguity over drug policy — while respecting state sovereignty.
W ith controversy over the 2020 election still stirring, a notable development has escaped much attention. Not only has the national trend toward legalizing marijuana continued, a Rubicon has been crossed: Oregon adopted a ballot initiative that decriminalizes the possession of hard narcotics, including heroin, cocaine, and methamphetamines.
No, it is not a green-light for drug trafficking — not yet at least. The ballot initiative approved in the Beaver State aims to strike the criminal penalties for the possession of personal-use amounts of illegal narcotics, generally a misdemeanor, not possession of greater amounts, which indicates an intent to engage in felony distribution. Selling or otherwise transmitting drugs is still a state crime.
And all of it — possession, medical use, recreational use, and distribution — still violates the federal criminal law, which is the main issue I’ll come to, in due course.
The Trend against Criminal Enforcement
Despite that complication, the trajectory of things is not in doubt. As Vox reports, Oregon voters also legalized the use of psilocybin, the psychoactive compound found in so-called magic mushrooms. That dispensation is only for supervised therapeutic purposes . . . at least for the time being. Moreover, five states — Arizona, Mississippi, Montana, New Jersey, and South Dakota — liberalized their marijuana laws, either legalizing it for medical purposes (which is always the first step), or expanding an already existing medical-use dispensation so that it now embraces recreational use, and larger possession amounts that are fitting for a legal commodity.
Once you go down this path, there are knotty knock-on effects: To what extent are employers required to tolerate drug possession or use? Must workplaces and other facilities provide medical-use space? Must they abide recreational use? If it’s legal but they oppose it, may employers inquire about drug use in the hiring process? Refuse to hire an applicant over it? Fire an employee over it? States are fitfully tackling these questions, too. It’s a Brave New World.
To mix in another metaphor, it’s also a Pandora’s Box. Many will prefer to don blinders and see drug use as strictly a personal liberty issue. Other analysts, prudently, are determined to force our eyes wide open. AEI’s Naomi Schaefer Riley and Hudson’s John Walters (the latter was President George W. Bush’s drug czar) published a Wall Street Journal essay last week, outlining in remorseless detail the wages of parental drug abuse on the lives of young children.
I don’t pretend this is simple. Many of the same claims can be made about alcohol, which no one sensible is looking to prohibit (that having worked out so well the last time). It’s reasonable to contend that using the criminal-justice system to address all this dysfunction and suffering only makes matters worse — with the added banes of gang crime, gun crime, ruined neighborhoods, and cycles of addiction and incarceration. Neither can we ignore, however, the stubborn facts that the law is the signal of what a society is prepared to tolerate, and that legalizing an addictive activity guarantees that there will be more of it, along with its inevitable train of damages.
We will have to wrestle for years to come with these and other policy questions. For now, I want to focus more on the implications for national cohesion.
Federalism and Contemporary Law Enforcement
To repeat, states that ease drug prohibitions do so in the teeth of federal law, specifically, the Controlled Substances Act (CSA) — an oft-amended relic of 1970 that still refers to derivatives of the cannabis plant as “marihuana.” CSA statutes continue to criminalize drug possession and use.
Yet, as of May 2020, all but three states have legalized the use of cannabis for medical purposes, according to the Congressional Research Service. In addition, with this year’s ballot initiatives, the number of states (plus the District of Columbia) that have removed criminal penalties on the recreational use of marijuana is nearing 20. Oregon is so far alone in easing the criminalization of other drugs, but it is only a matter of time before others join in — the states of Washington and California are candidates in the short term.
The Framers’ structure of governance provides for the federalist sharing of sovereignty. The states are supposed to be sovereign in the regulation of their internal affairs, particularly law enforcement. Federal power was to be reserved for national issues. Over the last century, the concept of what constitutes a “national issue” has expanded geometrically.
That puts great strain on the Framers’ design. Under Article VI, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.” If the federal government has properly enacted law that intrudes on state affairs, even law based on dubious policy premises, the states may not enact contradictory law. On the other hand, federal law is not properly enacted if it purports to regulate intrastate activity of the kind our system is meant to leave to state police power.
Competing drug laws bring the tensions into sharp relief.
There was precious little federal law enforcement at the time of the Founding. Treason is the only criminal offense defined in the Constitution, but Article I expressly anticipated that Congress would define and punish crimes of national and international consequence, such as piracy, felonies committed on the high seas, and offenses against the law of nations. It was to be expected, moreover, that federal criminal law would be enacted to cover areas of paramount federal interests, such as assaults on U.S. government officials. The Constitution also laid the groundwork for Congress’s creation of a multi-layered system of lower federal courts. All that said, the Framers could not have foreseen the metastatic growth of federal criminal law and its vast accompanying enforcement infrastructure, including the Justice Department (not created until 1870) and its component agencies.
Why Federal Drug Enforcement?
Much of this law-enforcement expansion, in conjunction with Washington’s more-intrusive role in national life generally, has been driven by the elasticity of governmental and judicial interpretations of Congress’s Article I power to regulate interstate and foreign commerce. This is the main source of constitutional legitimacy for federal drug enforcement.
The idea is that as the world has gotten smaller and economic life more integrated and complex, there is a greater need for federal regulation. While there is a lot to challenge in that premise, it is undeniably true that aspects of narcotics trafficking present a strong case for intervention by Washington. Hard drugs are lethally dangerous, and thus their manufacture and distribution should be rigorously regulated, including by criminal penalties. Many illegal drugs and their precursors do not originate in the United States. Importation and distribution networks are international and controlled by criminal syndicates. Domestically, trafficking is dominated by organized-crime groups with coast-to-coast wingspans.
As a practical matter, this macro level of importation and distribution could not be left to state enforcement. Unlike the Justice Department (with its FBI and DEA components, as well as its task forces that deputize state police to exercise federal enforcement authority), the law-enforcement arms of the states are not designed to investigate and prosecute criminal conduct that crosses multi-state and national boundaries, overwhelming their jurisdictional and financial limitations.
Nevertheless, drug use and distribution at the dealer-user level is strictly intrastate activity. In fact, with respect to marijuana, the entire sequence of activity — production, sale, and consumption — now commonly happens without anyone needing to cross a state or national boundary.
The tension over marijuana has been building for decades. The legalization camp unites — for different reasons — a motley combination of progressives, libertarians, and states-rights conservatives. Arrayed on the other side are other conservatives and centrist liberals, who worry about teen drug use, marijuana as a gateway to addictive drugs, and the alarming spikes in dependence and overdose deaths attributable to opioid abuse in recent years — as well as the related concerns about public health and orderly society ably raised by Ms. Riley and Mr. Walters.
Fraying Federal Compromise on Marijuana
In federalism terms, there has been something of an uneasy truce since 2014. At that point, Congress started placing appropriation riders in budget bills, denying public funding to Justice Department initiatives that could impede state efforts to legalize medical marijuana. On that medical use, there is a growing national consensus — even grudging agreement among naysayers who see the push for medical marijuana as mostly a pretext to enable recreational marijuana.
That, however, is where the consensus breaks down. Congressional appropriations reflect that fact: Still confined to medical use, the riders have not kept up with the inexorable progression to recreational use, the lawful possession of larger quantities (which blur the line between users and dealers), and, now, the decriminalization of hard drugs.
Potential conflicts have been mitigated by the doctrine of prosecutorial discretion. The states and the federal government have concurrent jurisdiction over drug crimes, and it has been a practice of law enforcement since I started as a federal prosecutor in the 1980s for the Feds to leave the vast majority of marijuana crimes and drug-use crimes to state enforcement, focusing instead on conspiracies to import and distribute hard drugs. But there was always a caveat to this exercise of prosecutorial discretion: Dormant though it was, the Feds retained their authority to investigate and prosecute the lesser narcotics offenses.
During the Obama administration (which made extravagant use of executive discretion not to enforce laws in many areas), the Justice Department issued guidance that prosecutors should assume a substantially hands-off approach to activities related to medical marijuana. The Trump Justice Department rescinded that guidance, but with the proviso that, in exercising their discretion, prosecutors should be mindful of not only laws but “appropriations.” That, plainly, was a nod to Congress’s de facto safe harbor for medical marijuana activities. Consequently, the Congressional Research Service observes, marijuana prosecutions dropped in 2018 and 2019 even though the total number of people charged with federal drug crimes increased.
Again, the federal indulgence of states’ rights to make their own drug laws has been strictly limited to medical marijuana, not recreational use. And even that safe harbor is narrow, covering possession and use of marijuana for medical purposes, but not potential crimes and collateral consequences derived from the establishment of quasi-legal medical marijuana markets — e.g., money laundering, prohibition of gun possession by unlawful drug users, and unfavorable tax, bankruptcy, and immigration consequences.
We have limped along in this ambiguity for a long time. Perhaps if it were limited to marijuana, we could continue this way, at least for the short term. But Oregon’s decriminalization of hard drug use changes the dynamic. It necessarily reduces the perception that felony drug distribution is a serious crime — already, we are hearing that users at this level are often dealers, it is part of the cycle of addiction, incarceration is never the answer, and so on. The Feds were not prosecuting many marijuana offenses, so a mostly blind eye to the flouting of congressional law could be rationalized; but that won’t do for hard drugs.
State Nullification of Federal Law — a Short History
It is worth remembering that the Civil War was nearly triggered 30 years before it started by the great nullification crisis. The conflict involved two very different visions of federalism and a sense of resentment in the South, with its cotton- and tobacco-export economy, that Washington was putting its thumb on the scale in favor of the North’s fledgling industrial base.
For South Carolina, the last straws were the so-called Tariff of Abominations in 1828 and the somewhat less harmful Tariff Act of 1832. In A History of the American People, Paul Johnson recounts that the extraordinarily high U.S. exactions hit South Carolina’s foreign customers hard, particularly Britain. Originally among the richest states, South Carolina feared becoming one of the poorest, and was losing population by the tens of thousands. In 1832, at a state constitutional convention in which talk of secession was in the air, the Palmetto State adopted the Ordinance of Nullification. It decried national tariff legislation as unconstitutional, forbade collection of duties in the state, and even provided that if federal authorities retaliated by seizing property, the owner was entitled to recover twice its value in court.
Though a Carolinian by birth, Andrew Jackson was a Unionist at heart. In 1833, he was also a president just reelected by a landslide, and thus at the height of his powers. In response, he prepared to put down South Carolina’s nullification by force. The power to annul a law of the United States, he wrote, was
incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.” [Jackson’s italics.]
Near Charleston Harbor, Jackson reinforced army posts and dispatched naval vessels, while seeking Congress’s authorization to use force. South Carolina backed down, rescinding its ordinance and ceasing secession proposals. Notably, this was largely due to some face-saving compromise legislation, sponsored by Senator Henry Clay of Kentucky, which reduced tariffs over the next decade.
Jackson was right that it is incompatible with our constitutional order for states to attempt to nullify properly enacted federal law by adopting their own contradictory laws. To do so imperils our national cohesion. If allowed to stand, defiance becomes a trend — as we see with the plethora of blue states, cities, and counties that regard themselves as “sanctuaries” from federal immigration laws.
Yet nullification disputes can illustrate the foolhardiness of federal laws and overreach by Washington. South Carolina bent to Jackson, but not without tariff relief. At the end of the 18th century, to take another famous example, Jefferson and Madison backed state resolutions that claimed a right to nullify Congress’s Alien and Sedition Acts. In the end, the sedition provisions in particular were rejected in 1800 by the public: The Federalists were routed, Jefferson was elected president, and the offensive enforcement measures were undone.
Immigration was originally a state-enforcement issue. Narcotics regulation is patently a state-enforcement issue, at least at the all-important street level. Yet the federal government has chosen to occupy these fields, and the courts have recognized its supremacy. But it has always been an ambivalent supremacy. The Feds have neither the resources nor the will to police every drug crime or every minor immigration infraction.
It is beyond time to revisit both federal law enforcement at the intrastate level, and state liberalization policies. If the federal government is not going to enforce laws regarding marijuana distribution and drug use, it should formally cede that authority to the state. It should stick to what it is willing and able to address: felony narcotics importation and distribution at the macro level. That said, if some states are determined to liberalize marijuana laws and even laws prohibiting the use of hard drugs, they must be made to bear the economic and other downside consequences of these policies. Such states should not be permitted to socialize the costs, expecting the rest of the country to underwrite their dubious choices.
Federalism is the great safety valve in our pluralistic society. If the lines of responsibility need redrawing, then it is best done before federal overreach and state defiance provoke a crisis. That time is now.