Legalizing Marijuana the Federalist Way
by Ross Raffin
Many advocates of legalizing or decriminalizing marijuana feel Obama has abandoned them. White House Chief of Staff Rahm Emanuel is a consistent warrior against decriminalization. Attorney General Eric Holder has a history of opposing drug policy reforms and considers the adult use of marijuana equivalent to public nuisance. Even Joe Biden, when asked about pain management and medical cannabis, responded that “there's got to be a better answer than marijuana.” But the reality is that the Obama administration has turned the tides in favor of legalization and decriminalization in a much stronger and subtler way than open rhetorical endorsements.
Optimism for drug reform began when Obama ended federal raids on cannabis dispensaries in states which allow medical marijuana. What marijuana advocates fail to realize is that with this the Obama administration initiated a small but extremely important step towards legalization. More importantly, it has done so in a way to insulate itself from Republican attacks and attempts to distract the public.
At the heart of the marijuana debate is federalism, the separation of state and national governmental power. For most of America's history, marijuana was treated as a crop subject to state regulation. However, the national government justified regulating marijuana through a variety of means, mainly the Commerce Clause of the Constitution which gives Congress power to regulate inter-state trade. This line of reasoning was forcefully used by the John Ashcroft in 2001 to enforce federal raids on medical marijuana dispensaries.
When a state legalizes marijuana, medical or otherwise, state law is in contradiction with federal law. This grey area leads to very confusing legal proceedings. For instance, if a state patrolman finds a medical marijuana patient in possession of marijuana, nothing happens. However, if a federal officer found a medical marijuana patient in possession of the same amount of marijuana, the federal officer can and usually will arrest the patient and prosecute under federal law. This hypocrisy is at the base of the current trials going on against elderly medical marijuana patients.
The Obama administration drastically changed this dynamic with just a slight alteration of criteria for federal intervention with marijuana dispensaries. Eric Holder announced that the federal government will no longer pursue medical marijuana dispensaries or patients unless they violate both federal and state laws. In the case of California, because medical marijuana is legal, federal intervention is no longer allowed in cases where California's medical marijuana laws are not broken. Thus, if California were to fully legalize marijuana, under current policy the federal government would not intervene.
This leaves Republicans in a very tough spot. Small government is the bedrock foundation of the party. However, if a “liberal” state legalizes marijuana, the only tool left to combat the legalization of marijuana is for the federal government to extend power over state government. Obama's actions cannot be criticized as an attempt to “deregulate” marijuana. Instead, it is a triumph of state rights over federal intervention.
More importantly, any attempt to fight state legalization of marijuana through suit automatically goes to the Supreme Court. This creates an opportunity to strike down previous legislation criminalizing marijuana as opposed to having the Democrats introduce a bill on the Senate floor to legalize pot.
Consider the alternative strategy of legalizing marijuana on a national level first through Obama. In the current political environment, the leading accusations against the president range from terrorist to Marxist to illegal alien. Imagine the campaigns that could be waged if Obama so much as hinted that he wants to legalize marijuana. Not only would there be insinuations that Obama wants drugs for personal use, but inevitably racial dynamics and stereotypes would enter discourse. It would be the ultimate redirect from the economy. Instead of focusing on regulations and expenditures, emphasis would be on the president who is destroying traditional American values with reefer.
If Obama or the Democrats proposed legalization, all the Republicans have to do is have several governors or senators who refuse to implement the federal law. This would frame the argument as Obama trying to extend the government's power to regulate what some consider the moral fabric of society. With just a few rhetorical shuffles, Obama's proposal could be linked to general monetary and budget extensions of power. This would be like the Republican's in the 30s arguing against the New Deal as a whole by linking it with a government proposal to force states to legalize prostitution.
The Obama administration's public hesitation towards marijuana legalization is not only understandable but, considering the impact of the current economic legislation and programs the administration is endorsing, the most pragmatic and efficient route for the moment. Legalization and decriminalization advocates should focus efforts on state-wide legalization, not nation-wide. If states are challenged in lawsuits, than the Supreme Court will be forced to rule on whether legislation criminalizing marijuana should be struck down. This is preferable to the executive putting forward a proposal to legalize marijuana from the top down. When Obama tells the country that marijuana legalization is not the path he chooses for America, he means to say that the path must first be drawn by us.