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How Marijuana Could End Federalism (and Why That Could Be Good)

Chris Roberts

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Over the two centuries and change that the experiment we know as the American republican has been conducted, the center of power has not been static.

At first, the most powerful governments in the country were located in the states. This changed after sitting presidents found themselves reduced to begging for the men and materiel needed to wage wars.

The power dynamic has since flipped entirely.

Now, localities are the supplicants for federal munificence. The same pot of money that the U.S. military taps to buy fancy new weaponry—the stated point of which is to never be used—is the same one poor people rely on for a safety net.

Sometimes, this arrangement is for the greater moral good. Basic freedoms, theoretically guaranteed to all under basic documents like the Constitution, have had to be upheld by federal courts—and, failing that, enforced by federal troops.

But not always—particularly not when the government-in-residence in Washington is led by an amoral gang of white-nationalist enablers, corporate cronies and outright authoritarians. And not on every issue.

With regard to drug policy, it’s the states who have been boxed into the corner from which governors and members of Congress write letters to the Justice Department, pleading to the better angels of Jeff Sessions’ nature (spoiler: there are none) not to send federal drug cops swooping in to undo marijuana legalization.

This is the problem with federalism. It’s selective.

Given the chance, Barack Obama and Eric Holder didn’t change federal marijuana law. Instead, they chose not to enforce it to the letter. This accommodated states’ marijuana legalization experiments without making any touch decisions, and it also left Jeff Sessions just enough room to twist logic around like a balloon animal and use black market marijuana grows as a possible excuse to go after state-legal cannabis businesses.

The solution to this is deceptively simple.

“The only way to protect state-level marijuana reform efforts is to change federal law, either by ending federal marijuana prohibition or expressly allowing state reforms to proceed,” as constitutional scholar Jonathan Adler, a law professor at Case Western University, observed in a recent Washington Post column.

As the ongoing difficulties faced by marijuana businesses trying to pay their taxes or open bank accounts have revealed, measures like Congress’s defunding of Justice Department operations against state-legal medical cannabis are triage moves at best.

To truly change the situation requires a majority of Congress approving legislation, or for the president to take some radical executive action, to reschedule cannabis or to remove it entirely from the Controlled Substances Act.

Since most marijuana-friendly bills can’t even get a hearing in Congress, and since Donald Trump can’t even bring himself to definitively criticize white supremacists—and has done nothing but empower some of marijuana legalization’s most avowed foes with crafting drug policy—there’s little chance of either at the moment.

But there’s a third way!

Cannabis could try to take a page from alcohol’s book. Fitting, considering the alcohol industry is doing everything it can to lay claim to some portion of marijuana legalization’s economic benefits! But also practical.

When Congress ended federal alcohol prohibition, it did not unleash a flood of unwanted bourbon on all 50 states. Instead, local governments were given a choice: Remain dry, or allow for alcohol to flow again. Most did not choose to maintain sober every night, but some did. And behold. The world did not end.

“There’s no reason a similar approach would not work for marijuana,” Adler argued. “Marijuana would not be the first product to be legal in some states but not in others, and there’s no reason the traditional federalism principles are not equally applicable here. Perhaps Congress should give it a try.”

This is exactly how the federal government treats pursuits like gambling, which is rapidly becoming less and less illegal as bereft local governments look around desperately for a source of tax revenue.

But best of all: Ending marijuana federalism would be the purely conservative thing to do! Power would not rest with big government. The decisions would all be local. If conservatives were serious about conservatism, they’d run towards this model. 

If.

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