Marijuana and Federalism

More and more states are stepping back from waging war against marijuana, legalizing medicinal use and minor possession, and popular support for decriminalization appears to be growing.  Thus far, the federal government has sought to stamp out such efforts.  Writing in the Washington Post, Jonathan Rauch suggests Washington should tak a different tack.

Squashing the states, however, is easier said than done. All but a small fraction of the people who enforce the marijuana laws work for state and local governments and answer to state law. Although states cannot break federal law, neither must they step in and enforce it. Federal prosecutors probably could shut down regulated marijuana distributors in Colorado and Washington with relative ease by sending threatening letters to landlords and bankers. But that would leave those states, and others that follow, with the option of legalizing marijuana without regulating it, because unconditional legalization under state law is indisputably within the states’ power. The effect of removing states’ troops from the battlefield would be to strand the federal government with marijuana laws it could not enforce.

The chaos that might result would be counterproductive even (or especially) for drug hawks. Instead of shutting down the states’ experiments, then, the federal government might better serve the policy goals of the Controlled Substances Act by working with Colorado and Washington to concentrate federal and state enforcement on high federal priorities, such as preventing legalized marijuana from spilling across state borders.

Rauch also notes that state-level marijuana policy experimentation could be quite revealing, much as it has been in the case of same-sex marriage.

 localizing the dispute gave people across the country time to work out what they think and to adjust policies as public opinion changed. Had the country locked in a federal constitutional amendment banning gay marriage in the mid-2000s, policy and public opinion would today be drifting inexorably into conflict.

State leadership on marijuana policy has all of the same advantages as on marriage. It contains conflict by reducing the stakes; educes knowledge about what happens if marijuana policy is changed; and allows incremental adjustment to social change. For the federal government, yielding some measure of control over marijuana policy to the states is not a threat; it is an opportunity to manage change and preserve options. Painting federal policy into a corner serves no one, not even drug warriors

Issues like gay marriage and marijuana decriminalization are really something of a litmus tests for the conservative commitment to federalism.  Those conservatives quick to embrace federal authority in each area reveal themselves to be fair-weather federalists, as they advocate decentralization only when it serves their immediate policy objectives.