Federalism and cannabis policy: the terms of a bargain

Policy waivers and Sec. 873 contractual agreements: how to use the states as laboratories for cannabis policy.

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.

Bob Young at the Seattle Times and Jordan Schrader at the News-Tribune have stories.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

16 thoughts on “Federalism and cannabis policy: the terms of a bargain”

  1. Seems like a reasonable response to the situation (although I really don’t have any problem with interstate sales out of Colorado or Washington either). Which is why it will never happen. When’s the last time that federal drug policymakers ever acted reasonably?

  2. “…the federal government lacks the capacity to fully enforce that law without state and local cooperation.”

    Hmmm, nothing new about that. Any deal between the feds and the states is highly unlikely to change that, either, no matter how enlightened, unless we have outright legalization. In fact, the very notion that government at any level in the United States has a mandate to continue prohibition is shaky, at best, and downright self-deceptive in general. This is a democracy. Support for medical marijuana is at 80%+. Support for outright legalization is “only” at the majority point with most voters. No one seriously suggests this trend will abate or turnaround.

    Maybe Dennis Rodman can pick up some tips one how to govern the unwilling next time he visits his buddy, Kim Jong-un, and pass them along to US policymakers? Otherwise, I hope we can just drop the facade of the “war on marijuana” and bring on real alternatives to present policy, instead of a cosmetic makeover.

    1. Basically one of the things that is slowly happening is that marijuana prohibition is turning into alcohol prohibition, slowly and surely, in terms of public opinion, which means the endgame is entirely predictable here. And that drives not only the prohibitionists crazy (they turn into Mabel Walker Willebrandts, constantly calling for increased enforcement), but also the sort of technocrats, whether on the right (Humphreys) or the left (Kleiman), who desperately want to maintain a bunch of regulations and restrictions on marijuana but pretty much know that the public is heading towards some sort of full legalization, either through fig leaf medical marijuana (a la California) or what Washington and Colorado are trying to do.

      The basic reality is that any sort of prohibition, including de facto prohibitions through strict regulation, requires a deep base of public support (because you are going to be throwing a lot of people in jail and doing a lot of searches and intrusive investigatory work). Once it’s gone, you not only can’t really do prohibition anymore, but you can’t do highly technocratic regulation. You basically can’t do more than what ATF does on alcohol and tobacco.

      Of course, this is great news for three groups: (1) people who have been subjected to hell because of the enforcement efforts associated with the drug war; (2) recreational users; and (3) especially, medical users (bear in mind that strict regulations are really bad for legitimate medical users– it’s much easier to get the medicine you need if you are a medical marijuana user in California than if you need pseudoephedrine to treat allergies).

  3. “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.”

    With help, too, it needs to be said.

  4. “good Brandeisian fashion”. Heavy, but delicious phrase. Of course, much to the chagrin and weeping and gnashing of teeth
    by certain folks, due to the Federal Reserve Act and like, you know, other stuff.

  5. I think the preferable option, from my libertarian perspective, would be to have states repeal their MJ statutes in their entirety.

    As a great progressive game theoretician once said, “There’s more of us, but who goes first?” (Jello Biafra will always be the mayor of the San Francisco in my heart.)

  6. “Constitutionally, the states have no mandate to even have drug laws, let alone enforce them.”

    Constitutionally, this stands the actual, written and ratified, incorporates a 10th amendment, Prohibition required an amendment, constitution on it’s head. There being no constitutional basis for the FEDERAL government to have drug laws, let alone enforce them, and the whole topic being pretty much a standard exercise of the police power, which is reserved to the states.

    I sometimes think that, in their heads, liberals have an inverted version of the 10th amendment, with the idea that the federal government has all powers it feels like exercising, and the scraps left over for the states to exercise if the federal government doesn’t object. But that’s not the Constitution that actually got written and ratified.

    1. Yeah, I think Mark doesn’t understand the situation here. States really cannot be commandeered by the federal government if they don’t want to be. The state of Colorado is not Angel Raich.

    2. Of course you are correct here. But daring to read and take seriously the U.S. Constitution on this matter will get you stink-eye and jeers from a certain segment of the left that vacuously derides Constitution-followers as “Tenthers.”

    3. Brett, I don’t like Wickard, but it was 70 years ago. The same framers who wrote the Constitution also designed a common law system based on precedent to interpret it, which means they INTENDED that “wrong” interpretations would be locked in.

      And Prohibition supporters WANTED a constitutional amendment and never conceded they needed one.

      You are a demonstration that a little bit of knowledge is dangerous. You know nothing about the reasons why things are the way they are, but rather know just enough to look like an idiot every time you discuss constitutional interpretation.

    1. I didn’t say the courts would enjoin the states; I doubt they would. I said that the courts would enjoin applicants for state licenses to commit federal crimes from accepting or acting on those licenses. If you disagree, please explain why.

  7. A condition that Congress placed on schedule I is that substances in that schedule must continue to have “no currently accepted medical use in treatment in the United States.” My last count is 20 states that have accepted the medical use of marijuana in treatment. DEA thinks it has the right to ignore 20 state laws that Congress did not give them the permission to ignore. Someone needs to file a law suit over this and it should be filed against your state government if you live in one of those 20 states. Your state government has the duty to notify the DEA that marijuana is no longer in federal schedule I, as a matter of law.

  8. I’d love to hear someone try to explain what the rational basis for preferring that their marijuana in neighboring states be supplied by criminals and cartels rather than the regulated markets in WA and CO.

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