Law & the Courts

Marijuana Decriminalization Bill Passes — and the Issue Isn’t Going Away

A small marijuana plant grows in a lab at the new Commercial Cannabis Production Program at Niagara College in Niagara-on-the-Lake, Ontario, Canada, October 9, 2018. (Carlos Osorio/Reuters)
Republicans may decide not to deal with it now, but it will have to be dealt with.

As our Mairead McArdle reported Friday, the House voted to decriminalize marijuana. The bill was overwhelmingly supported by Democrats and opposed by Republicans. It is said to be more of a gesture than anything else: The Republican-controlled Senate will not only refuse to consider it before this Congress ends in about four weeks; the GOP is using the pot legislation to illustrate that Democrats, who’ve stalled COVID-19 relief, must be smoking something when setting their priorities.

Still, the issue is apt to come around again, and soon, with a new Democratic president in office — even with a narrower Democrat majority in the House (and especially if Republicans commit a Georgia double-suicide and hand Dems control of the Senate). Indeed, it’s been three years since Kyle Smith noted Gallup’s finding that a majority of Republicans nationwide support marijuana legalization — an interim during which former GOP House speaker John Boehner has become best known as a cannabis lobbyist.

Two weekends back, I had a column on the need to think hard about federal narcotics enforcement. As it indicates, I am ambivalent on the subjects of drug legalization and decriminalization. As a federal prosecutor for almost 20 years, I got an up-close look at both the monstrousness of drug traffickers and the overall futility (or, worse, counterproductivity) of heavy reliance on the criminal law to address drug trafficking. If not completely convinced, I am at least sympathetic to the long-held corporate position of National Review that the war on drugs, so-called, is a failure.

It’s one thing to say criminal enforcement as practiced may make matters worse, and quite a different thing to say that all regulatory approaches that might include prosecution in the mix would be foolhardy. As I noted in the column, Naomi Schaefer Riley and John Walters make a strong case regarding the toll that substance abuse by parents takes on the lives of children. It was not that long ago that NR published a thoughtful essay by Jonathan Caulkins, arguing for a go-slow approach on the development of a commercial marijuana industry — an enterprise that has made significant strides since he wrote that piece in 2018. And my friend Kevin D. Williamson, long a compelling critic of the war on drugs, is as clear-eyed as it is possible to be about the societal costs on both sides of the ledger, including those exacted by the burgeoning new weed industry — as attested by a chapter in his scintillating new book, Big White Ghetto.

All that said, though, I see no room for ambivalence about either the erosion of federalism or nullification, the concept that states are at liberty to ignore or obstruct legitimate federal law.

To my mind, it is not tolerable for states to legitimize conduct that the federal government, acting within its constitutional authority, has made illegal. But an exception must be made for circumstances in which the federal government’s constitutional authority is debatable and the regulatory interests of the states are superior. Such a situation exists when the feds criminalize activity that is essentially intrastate. The resulting tension is in sharp relief when Washington has no will to enforce the disputed federal laws but stubbornly keeps them on the books.

That is the state of play on federal marijuana law.

I argued in the column that regulating the importation and interstate distribution of bulk quantities of marijuana is a paramount federal responsibility. The legislation the House passed last week does not repeal the federal crime of importing marijuana (although it does reduce the penalty). I further contended that, to the extent that the modern chain of marijuana commerce — production, distribution, and consumption — involves principally intrastate activity, it lies within the police power of the states in the Framers’ conception of federalism. The House legislation undertakes to recognize this reality, withdrawing federal criminal enforcement as a tool for policing intrastate marijuana commerce.

We can and should continue to debate what are the best ways to regulate the drug trade while doing the least harm and protecting the most vulnerable. But if the federal government is not going to enforce criminal laws related to marijuana (other than importation), then those criminal laws should be repealed. I’ve observed a few times that, contrary to trendy sloganeering, we do not have an over-incarceration crisis (imprisonment rates are down significantly, and the vast majority of current inmates belong in custody). What we have is an overcriminalization problem: too many criminal statutes and regulations. Laws that are not being enforced should be repealed, since their continued presence on the books invites capricious enforcement, which violates equal-protection principles.

Obviously, Oregon’s decriminalization of the possession and use of hard drugs (e.g., heroin, cocaine, and methamphetamine) is a more complicated issue than pot legalization because the federal interests are higher. Marijuana and hard drugs both involve laws that the feds refrain from enforcing; specifically, against the use and possession of user-quantities of narcotics (as opposed to dealer quantities). Unlike street-level marijuana distribution, however, the feds do prosecute street-level distribution of hard drugs — and routinely so. As observed above, there is a case to be made (and vigorously debated) that the criminalization of narcotics trafficking does more harm than good. That is a policy question, though. As a legal matter, hard drugs in the main do not present the same doubts about the constitutional legitimacy of federal criminal enforcement as marijuana does.

Moreover, Oregon has not legalized the possession of user-quantities of hard drugs; it has decriminalized such possession. The new state law does not purport to legitimize conduct the federal government has outlawed. Oregon is simply saying that an activity that violates federal law is no longer, concurrently, a state crime. That is a common situation — at least outside the narrow field of drug enforcement, where concurrent federal and state jurisdiction the norm. For now, Oregon’s controversial new law does not present a nullification controversy.

Marijuana does. Republicans may decide not to deal with it now, but it will have to be dealt with.

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