The Journal of Drug Policy Analysis has just published a new paper (behind a paywall) in which I offer two alternatives to the options currently in public discussion as to how the federal government can deal with state-level cannabis legalization.
This fall, Washington and Colorado intend to start licensing businesses to produce and sell cannabis under voter-passed initiatives, even though the stuff remains illegal under federal law. The federal government has not yet said what it plans to do about it, and its three obvious options – acquiescing, cracking down, and muddling through – all have fairly serious drawbacks.
A number of what Keith calls Formerly Important Persons have demanded that the feds crush the state-legal Colorado and Washington markets. Since every participant in those markets needs a license, that wouldn’t be hard to do: any federal judge would cheerfully enjoin someone applying for license to commit a federal felony from doing so.
But the state-legal commercial markets represent only one of three systems that can deliver cannabis to customers. The loosely-regulated “medical marijuana” markets would be a far tougher nut for the feds to crack. And the purely illicit system, which handles the vast bulk of transactions today, is way too big for 4000 DEA agents to suppress without help. More than 90% of arrests for growing and dealing marijuana are made by state and local cops. So the feds need state and local authorities in Washington and Colorado to maintain pressure on illegal growing.
Constitutionally, the states have no mandate to even have drug laws, let alone enforce them. In this case, federalism is more than a legal doctrine: it’s a brute fact.
So: Washington and Colorado would like the feds to let their new commercial systems operate. And the feds would like Washington and Colorado to suppress production for out-of-state sale. When each of two parties has something the other wants, that’s the basis for a bargain.
And the Controlled Substances Act (Sec. 873, if you’re keeping score at home) orders the Attorney General to cooperate with state and local officials in enforcing the law, and authorizes him, “notwithstanding any other provision of law,” to enter into “contractual arrangements” with states and localities. The paper proposes that he use that authority to make formal deals with Colorado and Washington in which the Justice Department would agree to keep hands off state-licensed businesses in return for the states’ active help in suppressing interstate trade. That wouldn’t make the state-authorized activity legal, but it could formalize a program of targeted, selective enforcement that would give state licensees an effective safe harbor.
That seems to me a clear second-best to my preferred option, which would be a Congressionally-authorized program of policy waivers. As with the waivers that allowed state-level experiments with alternatives to AFDC, cannabis policy waivers could allow the states, in good Brandeisian fashion, to act as the “laboratories of democracy” in a policy area where there is currently much more passion than knowledge.
Here’s the abstract of the paper:
Passage of marijuana-legalization initiatives in Colorado and Washington poses a problem for the federal government: marijuana remains illegal under federal law, but the federal government lacks the capacity to fully enforce that law without state and local cooperation. Complete deference to state legalization would put each state’s cannabis policy at the mercy of its neighbors’. A system of legislatively-authorized policy waivers would allow controlled exploration of alternative systems of control. In the absence of such authorization, the executive branch could use existing authority to craft cooperative agreements with the states intended to confine the effects of each state’s new policies within its own borders.
More detail in this UCLA press release.