Marijuana legalization and federalism

Drug Enforcement Administration, the Controlled Substances Act, and the War on Drugs all show that drug prohibition has been framed as a federal issue. Recent state-by-state legalization of cannabis (marijuana) has challenged and undermined the efficacy of federal drug laws and anti-drug policies. Almost half the states have now legalized marijuana for either medical or recreational use (Hill, 2015). The state-by-state legalization scheme creates legal and ethical conundrums. For example, Hill points out that federal anti-drug legislation prohibits legal marijuana businesses operating in states like Colorado to use national financial institutions for banking. Without access to the usual range of financing options, cannabis dispensaries and other related businesses are driven to a cash-only business which can "attract thieves and tax cheats," (Hill, 2015, p. 597). Other problems include the inability of Americans to legally transport cannabis over state lines, even between two states that both legalized the drug. Canada recently announced that it would be eliminating drug prohibition nationwide (Government of Canada, 2017). Almost all border states in the USA have legalized cannabis on some level, but it is illegal to transport one's personal supply of marijuana across what is the longest land border in the world. Cannabis and drug prohibition are areas that highlight the conflict between states' rights and federalism that has characterized political culture and discourse in the United States for centuries.

Interestingly, the debate over the status of cannabis has forced Republicans -- long the stalwart champions of states' rights -- to reconsider their stance on drugs. Republicans have been consistently inconsistent in what should be state versus federal jurisdiction. For example, some religious conservatives vie for federally illegal abortions or restrictions on civil rights like the proposed Defense of Marriage Act. The War on Drugs was started by a Republican President, Nixon, and strengthened by Republican President Ronald Reagan. As Adler (2014) points out, "So many Republicans who believe it's federal overreach when federal law regulates health insurance or power plant emissions think its just fine when the federal government prohibits the possession of a plant, even where authorized under state law," (p. 1). The federal government has not fully clarified its position on the clash between states' rights and federalism regarding cannabis laws. However, the federal government has affirmed that it would defer to state law enforcement except in situations in which the drug is being transported for sale in another state (Baude, et al., 2014). In 2014, the House of Representatives voted to disallow DEA spending for raiding medical marijuana dispensaries in states where medical marijuana is legal (Adler, 2014). Republican lawmakers have gradually begun to show support for states' rights when it comes to cannabis.

However, the new Canadian model shows that a federal decriminalization policy may be far better for public health and safety outcomes. A state-by-state decriminalization process is better than drug prohibition, but the federal war on drugs perpetuates social injustices. The war on drugs has directly caused mass incarceration and what Alexander (2012) calls the new Jim Crow because of racial disparities in enforcing drug laws nationwide. Drug prohibition undermines constitutional rights to privacy and freedom. Because legalized drugs allows for federal oversight, drug quality testing, and diversion of funds for public health, the Canadian policy is far more sensible than the states' rights program being introduced piecemeal in the United States. Given the sheer number of states that have already legalized at least medical cannabis, though, it is possible that a new federal mandate to end prohibition might ensue.

Philosophically and practically speaking, it does not make sense to perpetuate an ethically problematic federal war on drugs while allowing states to opt out -- which was exactly the situation in antebellum America. Prior to the Emancipation Proclamation and the Thirteenth Amendment, slavery was a matter largely left up to the states. This allowed states to opt into the injustice of slavery, just as states can now effectively opt into the new Jim Crow. On the other hand, the states' rights version of the war on drugs allows for what American policy makers have long embraced: the art of compromise. A federalist removal of drug prohibition is a step that many Americans are not yet willing to take, especially conservatives who cling to the war on drugs because of their tendency towards fact evasion. Progressives point to statistics and data related not only to mass incarceration but also public health statistics showing that the war on drugs has failed to incur any meaningful reduction in drug use (Godlee & Hurley, 2016). The compromise between those who understand that drug prohibition has failed and those who deny the facts is federalist anti-drug policy.

Ironically, a federalist anti-drug policy has been championed by the same political cohort that denies the efficacy of federalism in other areas of public policy. States are beginning to undermine the war on drugs, but the process has been gradual. States' decriminalization of cannabis has conflicted with several federal laws and policies, creating problems for law enforcement working near state borders, as well as small business owners. The conflict between states' rights and federalism will remain salient in American political discourse, and the war on drugs is a classic example of when some federalist policies are doomed to fail. States that have already legalized recreational cannabis are effectively pioneers, leading the nation in sensible drug policy that should eventually be implemented on a federal basis. State-by-state legal marijuana threatens federal drug policy, and well it should.

References

Adler, J.H. (2014). This is your federalism on drugs. The Washington Post. 28 Aug 2014. Retrieved online: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/28/this-is-your-federalism-on-drugs/?utm_term=.b0590188c991

Alexander, M. (2012). The New Jim Crow. Kindle Edition.

Baude, W. et al. (2014). Marijuana, federal power, and the states. Case Western Lectures and Events. Retrieved online: http://law.case.edu/Lectures-Events/lec_id/373

Godley, F. & Hurley, R. (2016). The war on drugs has failed: doctors should lead calls for drug policy reform. BMJ 2016; 355 doi: https://doi.org/10.1136/bmj.i6067 (Published 14 November 2016)

Government of Canada (2017). Legalization and regulation of cannabis. Retrieved online: https://www.canada.ca/en/services/policing/justice/legalization-regulation-marijuana.html

Hill, J.A. (2015). Banks, federalism, and marijuana. 65 Cas. W. Res. L. Rev. 597 (2015) Available at: http://scholarlycommons.law.case.edu/caselrev/vol65/iss3/7