We generally favor deferring to tradition, but the fact that Republicans have been wrong on marijuana for a very long time is no reason for them to keep being wrong.
And Republicans have it very wrong on marijuana — or all but five of them do: The House has passed a marijuana-decriminalization bill largely along partisan lines, with only five Republicans voting in support of the measure, while only six Democrats opposed it. The bill is expected to die in Mitch McConnell’s Senate.
It shouldn’t.
The current federal position on marijuana is the wrong one, both as a matter of federalist principle and as a matter of intelligent policy.
With various marijuana-liberalization programs working their way through the states (Oregon has decriminalized personal possession of most other drugs as well), there now exists a patchwork of marijuana laws across the country. Three cheers for the patchwork: This is a large, complex, and diverse country, and sometimes a political patchwork is the right alternative to enforced national homogeneity. The states have decided to go their own separate ways on this issue, Americans already have shown themselves perfectly capable of navigating a world in which Colorado and Florida have different marijuana laws, and federal law should recognize that reality.
Most ordinary crime is policed at the state level, and the interstate-commerce rationale for federal marijuana prohibition has always been weak. While there will remain a federal role when it comes to such considerations as international smuggling and interstate trade, the question of the sale and consumption of marijuana within states is a matter for the states. Republicans who say they believe in federalism should consider acting like it. The same vague interstate-commerce argument that empowers federal marijuana prohibition necessarily empowers federal mischief of many other kinds.
Current federal law puts many marijuana sellers and buyers in the position of being federal outlaws while transacting business that is, as a matter of state law, entirely legal. The Obama administration attempted to finesse this conundrum with the policy spelled out in the so-called Cole memo, in which the federal government committed itself to ignoring its own laws in states in which marijuana had been legalized; the Trump administration rescinded that policy; liberalizers have expressed some hope that the Biden administration might reinstate it. That kind of chaotic adhocracy is typical of our contemporary political dysfunction, and Congress should settle this as a matter of statute rather than having policy swing back and forth via administrative fiat every time the White House changes hands. It is the job of the lawmakers to make law, and Congress ought to do its job rather than punting to whomever happens to be in the top job at the Justice Department.
Drug abuse and drug addiction impose serious personal and social costs, as indeed does a great deal of casual drug use. We have seen this not only in the case of prohibited drugs such as marijuana but also in the case of generally legal drugs such as alcohol and some pain medications. The question is not whether we are in favor of marijuana use or against it, but rather is whether current policy is genuinely in the public interest. It isn’t. Marijuana prohibition creates a vastly profitable criminal enterprise that causes far more damage, including loss of life — at home and abroad — than marijuana consumption itself does or would even if use became more widespread. Prohibition makes petty criminals out of most Americans — the majority of Americans smoke marijuana at some point in life — and in the process acclimates both individuals and institutions to low-grade criminality. It results in needless incarceration and in criminal convictions that can severely circumscribe a person’s opportunities for advancement and prosperity. It creates opportunities for selective enforcement and prosecution. The so-called war on drugs has contributed mightily to the militarization of many local police forces, to the normalization of invasive domestic surveillance, and to heavy-handedness in policing. That is a high price to pay for a policy that is — this is worth remembering — almost entirely ineffective in preventing the widespread use of marijuana and the commerce attached to it.
The recent House bill is imperfect. Removing marijuana from the list of federally controlled substances is a good policy, and vacating the convictions of certain low-level federal drug offenders is the right policy, too, albeit one that should be implemented with caution. But this being the United States — and this being a Democratic bill — there is an excise tax attached, which is the wrong policy in that it would in one sense expand the federal footprint in the marijuana trade rather than reduce it. Those who cry, “Legalize it and tax it!” have it half right, but only half. The bill is also larded up with patronage spending in the form of small-business and community-group grants that would distribute those federal marijuana-tax funds to political clients. Our national experience with the role of state and local governments in casino gambling should have taught us that there is a world of difference between sensible reform and making government a revenue-seeking partner in a pestilential business.
As a matter of pure political calculation, Republicans might note that marijuana reform is very popular among constituencies they need to court, and that marijuana initiatives did very well on Election Day in such conservative states as Montana and South Dakota. In fact, every single marijuana-liberalization proposal that was on the ballot in November passed, from New Jersey to Mississippi.
The all-encompassing war on drugs has been a lost cause for decades, and Republican voters know it — Republican elected officials should admit as much, too.