Do States Need Federal Permission to Change Their Drug Laws?

Drug Policy Alliance attorney Tamar Todd refutes a Los Angeles Times editorial's claim that California "does not have the authority" to legalize marijuana, as a bill approved this week by the state Assembly's Public Safety Committee would do:

The Times is simply wrong to suggest that California does not have the authority to tax and regulate marijuana. There is nothing in the U.S. Constitution that requires states to criminalize anything. We could scrap our entire penal code tomorrow if we wanted to. States get to decide state law, not Washington. This is why California and 13 other states have been able to legalize and regulate medical marijuana despite continuing federal prohibition.

Certainly, even if AB 390 becomes law, the federal government could still enforce its marijuana laws against California residents. The reality is, however, the federal government does not have the resources to undertake sole—or even primary—enforcement responsibility for state drug crimes. More than 95% of all marijuana arrests in this country are made by state and local law enforcement agencies.

Based on an absurdly broad reading of the authority to regulate interstate commerce, the Supreme Court has said the federal government can continue to enforce marijuana prohibition in states that have legalized medical use of the plant, even to the point of prosecuting patients for growing or possessing their own medicine. But the Court has never said the federal government can compel states to help it enforce marijuana prohibition, or that the Constitution requires them to adopt and maintain laws consistent with federal policy. And given the law enforcement reality that Todd notes, federal agencies would not be able to override a state's decision to legalize marijuana, although they certainly could make some trouble. The ensuing conflict would be instructive and could ultimately lead to a greater respect for federalism than the Supreme Court has displayed in recent years.