Why Prohibitionists Have an Interest in Allowing Marijuana Legalization

Brookings InstitutionBrookings InstitutionIt has been five months since residents of Colorado and Washington voted to legalize marijuana, and the Justice Department still has not said how it plans to respond. In a new Brookings Institution paper, legal analyst Stuart Taylor argues that the Obama administration should not only refrain from trying to stop these experiments but should negotiate "cooperative enforcement" agreements with officials in Colorado and Washingtion aimed at minimizing diversion of newly legal recreational marijuana to other states. Taylor argues that such agreements, which are authorized by the Controlled Substances Act, would serve the interests of prohibitionists as well as legalizers, since any attempt to prevent state-licensed pot stores from opening would foster unregulated production and distribution. "The best way to serve the federal interest in protecting public health and safety is not for the federal government to seek to abort state legalization," he writes. "To the contrary, a federal crackdown would backfire by producing an atomized, anarchic, state-legalized but unregulated marijuana market that federal drug enforcers could neither contain nor force the states to contain."

Yesterday Taylor outlined his thesis at a Brookings panel discussion that also included UCLA drug policy scholar Mark Kleiman, who is advising the Washington State Liquor Control Board on how to regulate the marijuana stores that are supposed to start opening there next year; Washington's attorney general, Bob Ferguson, who said he would like to resolve conflicts between state and federal law amicably but is prepared to fight any attempt to shut down legalization; and Rep. Earl Blumenauer (D-Ore.), who has sponsored legislation aimed at freeing states to pursue their own marijuana policies. (The panel was moderated by Reason contributor Jonathan Rauch, who argues that "the states should lead on marijuana policy.") If the Obama administration decides to crack down, the panelists seemed to agree, it could put pot shops out of business pretty easily by threatening them with forfeiture and prosecution. But that would leave an alternative, quasi-legal source of supply in each state: home cultivation in Colorado, where people are now allowed to grow up to six plants for their own recreational use or to share with friends (up to one ounce at a time, "without remuneration"), and medical marijuana collectives in Washington, which Kleiman portrayed as loosely regulated and ready to pick up any slack should the feds block state-licensed marijuana outlets. If marijuana is legally available in stores, most pot smokers will buy it there; if not, the gray markets will thrive, making the industry much harder to control.

Washington's legalization initiative, I-502, does not allow home cultivation, and the state's medical marijuana collectives came into existence through a haphazard process similar to what happened in California. By contrast, the home cultivation provision in Colorado's Amendment 64—creating what Kleiman called "this weird, two-tier system with a sort of liquor-style control on a taxed and regulated market and a Wild West, grow-your-own" option—was intended all along as a safeguard against state inaction and/or federal resistance. It is looking smarter by the day, since there is no way the feds, who account for less than 1 percent of marijuana arrests, can hope to shut down myriad home growers, and they cannot force state or local officials to help them. At the same time, the prospect of an interstate black market fed by all those small-scale, notionally nonprofit operations creates an incentive to step back and let legalization proceed as planned.

If the feds are smart, Taylor argues, they will actively encourage appropriate state regulation rather than opposing it or maintaining a two-faced, mushmouthed position that Kleiman described by rapidly running his finger up and down his lips while making nonsensical sounds. The Obama administration chose that last course (if chose is the right word) in response to medical marijuana, as Taylor shows in a devastating appendix to his paper, subtitled "A Study in Chaos." Kleiman seemed to agree that clarity is preferable, although he noted that any policy of restraint can be easily changed if it is not grounded in statute and that marijuana growers and retailers would remain vulnerable to prosecution as long as the federal ban remains in place. "The first choice might be to legalize the substance nationally," he said, although he does not see that happening until "sometime in Hillary Clinton's second term." Another possibility, he said, would be legislation protecting cannabis businesses in states with regulatory plans that meet federal approval, but he does not think that is likely anytime soon either. Blumenauer was more optimistic about the short-term prospects for congressional action, saying piecemeal reforms, such as legislation clarifying that accepting bank deposits from state-legal marijuana businesses does not qualify as money laundering, could have an important impact on the emerging industry.

You can read Taylor's paper here and watch the panel discussion here.

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  • BigT||

    You're not from around here,are you?

  • ||

    Were anti-American because we think pornography is protected by the Constitution?

  • Paul.||

    No, we're anti-american because gay marriage. Are you new around here?

  • ||

    Ah yes, he used "deviant sexual practices" below.

  • Rights-Minimalist Autocrat||

    Can you point me to the clause in the constitution that says only "political speech" is protected?

  • ||

    We just think it is "meant to mean" something different. You aren't the sole interpreter of the Constitution.

    And you can take your racism and homophobia and blow it out your ass.

  • Calidissident||

    American is becoming increasingly worse at maintaining his cover

  • Calidissident||

    "I'm not American, though I do admire the man."

    How exactly are you familiar with him then?

    You do this every time you create a new account. You're going to get banned soon either way, you might as well be honest about your identity in the meantime

  • Calidissident||

    So it's just a coincidence that American regularly returns here under different names after getting banned, making the exact same arguments you're making?

  • Calidissident||

    We have other conservatives on the board. I don't accuse them all of being American. Hint: Don't hijack every unrelated thread by lecturing libertarians on sexual deviancy and immigration

  • Paul.||

    It is funny to hear libertarians use federalist arguments

    With a statement like that... no, no he's not.

    Libertarians are the only people consistently using federalist arguments. And Danny is horribly confused about things that are constitutionally protected and thus limit the power of the states, and shit the states want to do in the day-to-day running of their government such as how they organize their schools or fund their road projects.

    Looks like we've got a lot of work to do for the new guy.

    Going to have to give him the new flier describing the differences between rights and privileges, etc.

  • Calidissident||

    He's saying the states are constitutionally allowed to create roads. The feds can only create postal roads (constitutionally)

  • ||

    COSMOOZZZZZZZZZ

  • ||

    The idea of federalism is that state control is better than national control. Local control is even better than state control. The more local the better since each individual's voice is better heard in a smaller room.

    There's also the ability to vote with one's feet. It's easier to leave the State of _______ than it is to leave the USA. Furthermore, it's easier to move within a state, etc. etc.

    This doesn't mean you roll over to interventions at the State or local level, but merely you should prefer their jurisdiction to that of the Feds.

  • DWC||

    Yeah, like with HOA's - with reference to all the horror stories on the other thread. I get the idea behind more local versus more central, but the idea that local governments will produce more liberty than federal government is a fantasy.

  • Calidissident||

    At least with local governments (or a HOA), it's a lot easier to move if you don't like it. Centralization of power makes it easy for liberty to wiped out altogether

  • DWC||

    But the point I'm making is that it's turtles all the way down - Feds, States, counties, cities, HOA's - there is no way to escape any of it at this point unless you live in the Yukon or someplace similar and if you've ever watched Alaskan State Troopers you see that even in the remotest parts of this country you're still going to get arrested and jailed for DWI, even on an ATV. I just don't believe in this idea that local government is going to be any more pro-liberty than the federal government, although it may be less blindly bureaucratic.

  • ||

    HOA's are great, in the sense they are completely optional. I avoid them, and their stupid rules by not buying a house in a development with one.

    If you buy into one and find you don't like it, you always have the option to sell.

    Imagine if instead of an HOA having control over your neighborhood, it instead could impose the same rules over the entire city. Which situation would be better for liberty?

  • ||

    I am referring to the Reason.com people,

    Whoa there dude. Do not put me in the same boat as the fucks that hang around here. Hell, I don't think Warty is even the same species.

  • Jordan||

    How many of them would extend the arguments they make to, say state regulation of pornography?

    The Bill of Rights still applies to the states.

  • ||

    Congress shall make NO LAW...abridging the freedom of speech.

    It's the words on the paper that matter most.

  • Virginian||

    So then your computer isn't protected by the 4th Amendment? Your AR isn't protected under the 2nd?

    Fuck that shit.

  • Brandon||

    And the Second Amendment only applies to muskets. You're not even an original troll.

  • deified||

    As someone who is pro-pornography and pro-Constitution, I have to agree with Danny. But let the record show that I'm sad about it!

    The Founders were talking about newspapers and things like that, not Hustler.

    The 14th Amendment also doesn't mandate the right to gay marriage.

  • Calidissident||

    No law seems pretty clear to me. Nowhere does it say it's just talking about newspapers.

  • Calidissident||

    It doesn't say just political speech. And who defines what a "deviant sexual practice" is? If you're arguing based on popular belief, I think you're quite naive if you think a majority of people are anti-pornography.

  • Calidissident||

    The First Amendment wasn't even originally applied to the states. It's applied under the Fourteenth Amendment. And to be really correct, the feds didn't have the power to regulate speech before the First Amendment. It was just an extra-guarantee against infringement by the federal government

  • JMos||

    By this logic the 2nd amendment only protects your right to own muskets.

  • Virginian||

    Fine, granting your point just for the sake of argument.

    Porn falls under the 9th Amendment. Game, set, match to me.

  • Virginian||

    What the fuck are you babbling about?

  • Virginian||

    Did you read it?

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Your argument flies in the face of the clear text of the 9th Amendment.

  • ||

    The 14th supersedes the 9th. States cannot deny citizens the protections of the Bill of Rights.

    Freedom of expression is a fundamental liberty.

  • Calidissident||

    Who defines deviant sexual practices? I mean, is something that most men do really considered deviant?

  • Calidissident||

    Really? Because it's not like pornography isn't really popular?

  • ||

    There is no such right as "freedom of expression," in constitutional law.

    Except that the constitution is a list of enumerated powers. Remind me again, which of the powers allows the government to regulate the creative content I choose to produce or consume?

  • ||

    Danny, don't pretend the 14th amendment didn't happen...

  • ||

    We're talking about the 9th amendment and enumerated rights as well, try to keep up.

  • Paul.||

    Creating a pornographic video is not the equivalent of expressing a political idea, the right the founders wanted to create.

    It's precisely the expression of political ideas which were banned via McCain Feingold. The "pornography" ship sailed in the late 80s.

    Why do you think liberals went apeshit over Citizens United? People were out there, expressing political ideas without FEC approval.

  • DEATFBIRSECIA||

    This doesn't even make sense.

  • General Butt Naked||

    The non-coherent part.

  • Calidissident||

    "Obama assassinates a few enemy combatants"

    And of course we know they're all enemy combatants because he says so right?

    Immigration laws have been arbitrarily enforced for decades, but I think the people that are still getting deported or can't get into the country legally would be surprised to hear that they're not being enforced at all

  • Calidissident||

    I reiterate what I said above.

  • ||

    Given the vastness of Federal Law, I would say that the Executive has no choice but to prioritize the allocation of the limited supply of Federal Law enforcement resources.

  • DEATFBIRSECIA||

    And another thing: If Danny from Alabama doesn't believe that porn is expression, it just means he hasn't seen a movie with Eva Angelina in it yet. So here you go Danny, I think this will clear it up:

    http://www.imdb.com/name/nm1617461/

    Just watch any one of these fine films, like "Anal Car Wash Angels" or "Fuck Team 5" or perhaps my personal favorite "Ass-Mania" (that's the one you should probably start with) and you tell me if that isn't freedom of expression.

    Hey and if you're not careful, that huge uncomfortable chastity stick you've shoved up your ass might fall out and allow you to relax that fearful sphincter of yours.

    One can only hope.

  • DEATFBIRSECIA||

    " I think people should be able to watch that kind of shit, but I don't think it is a constitutionally protected right."

    Complete nonsense.

    Danny, if you think people should be able to watch it, how do you think that right should manifest? As a wish and a prayer that the watcher does not get arrested?

    Your capacity for self-delusion is impressive, even in the modern era where such self-deceit is rampant.

  • Calidissident||

    So American has a girlfriend now. Guess his PUA days are over.

  • Calidissident||

    Are you faithful to her? If you're in a long-term, monogamous, conservative relationship, I wouldn't really characterize you as a PUA at the moment

  • Calidissident||

    You definitely claimed to be under one of your past handles (I think it was when you were known as "Gillmore")

  • Calidissident||

    Are you under the impression that no one gets deported or punished for immigration-related offenses these days? Or that one can just get a green card whenever they want?

  • Calidissident||

    Which applied to a very narrow set of immigrants who are already here, and doesn't constitute amnesty, since it doesn't give them legal status or the rights and privileges that confers.

  • ||

    Actually the executive DOES have to decide what is more important because it doesn't have a limitless supply of resources.

  • DEATFBIRSECIA||

    " but were not intending to protect the right of persons to engage in deviant sex."

    Can you provide proof of that?

  • DEATFBIRSECIA||

    I never claimed that aliens were present at the Constitutional Convention. You did however claim that the founders were not intending to protect the right of persons to engage in what you called "deviant sex". Back it up. Where in their writings do you find support for such a claim?

    Your second point is only valid if the founders failed to apprehend the distinction between what they found personally distasteful and the range of expressions they considered essential to guarantee that speech would not be limited, thus the "no law" clause.

    I would like to think the founders were a bit smarter than you and others like you who purport to decide for everyone else what is distasteful and deviant.

  • Calidissident||

    "Pornography is murkier, but it certainly offends the sensibilities of most natural cultures throughout the world,"

    You're an ignorant moron

  • DEATFBIRSECIA||

    Right grandmothers should be able to proclaim law with fiat!

    So no blacks dating whites, right Danny?

    Fuck you Danny From the Wholly Ignorant State of Alabama, and every retarted evangelical fucktard who thinks like you.

  • DEATFBIRSECIA||

    "I do not support anti-miscegenation laws."

    Your grandmother might have though. At one time most people considered "deviant" the practice of blacks marrying whites.

    Let's put your grandmother in charge, and let her put all the mixed couples (along with the athiests) in jail.

    I mean what the grandmothers say goes, right?

  • Calidissident||

    Ok seriously, stop even trying to deny who you are. You've probably made that exact same post word for word (or close to it) at least 5 times on this site.

  • Calidissident||

    "I am Danny from Alabama."

    And I'm Kim Jong Un

    "If you grew up in an integrated Alabama school you'd see the other side's point, even if you don't agree with it."

    Why do you presume to know so much about who I am and who I live around and associate with? And there are trashy people of all races. Even if we were to assume that some are inherently "more trashy" why would that make any difference when we're talking about marriages between two people? It's not like two entire races get married when an interracial couple ties the knot.

  • Calidissident||

    Wow. That post just kinda speaks for itself.

    "Then, you see one of the stereotypical blacks with a white female. It is sorta like seeing a female member of your family dating a drug dealer."

    Unless that female is actually my sister, cousin, or some other family member, I wouldn't care any more than I would seeing a "stereotypical black guy" with a black girl. I don't have some sort of claim, ownership, responsibility, etc. to a woman just because because I share a similar skin tone. Nor would I be ok with my sister being with an abusive, lowlife white guy.

    "There is also the practical matter of white men not being attracted to black women, the miscegenation usually goes one way."

    While I would agree that in general, white men find black women in general less attractive, I know very few white guys who aren't attracted to some black girls (and not necessarily Beyonce or Meagan Good level hot). I'm a white guy, and on average I'm less attracted to black girls than to most other groups, but I still find a decent number of the black girls I come across attractive. I also think black women are generally less open to dating white men, I don't think it goes one way. I'm also not sure why, to you, miscegenation = black/white. Well I guess since you're from Alabama (supposedly) that might be why. But most white people in the country who are in an interracial relationship are dating/married to a Hispanic or Asian person.

  • Calidissident||

    "People feel as if their race is dying"
    Anyone who thinks this is an idiot

    "the children of the relationship will most likely identify politically and culturally as black."

    To a large extent, a parent has control over that.

  • ||

    Wow...just wow. Danny from AL....amazing...

  • Calidissident||

    American is an atheist as well. How many conservative atheists who seem to hold the exact same views on every issue visit Reason.com?

  • Calidissident||

    You think I'm talking about grandmothers? Pornography (in the form of art) has a history almost as long as humanity itself. Not all cultures in the world are Abrahamic, and even then, pornographic art (which would be the only real thing comparable to modern pornography that was around at the time of the Founding) has a long history in Western culture.

  • Calidissident||

    You're comparing murder to pornography? You're entirely missing the point. There are countless cultures throughout history that have been tolerant of pornography. The modern USA is not the first society to not look down upon it

  • Calidissident||

    "Yet would it still be probably be looked down upon by grandmothers."

    Since when are 21st century American grandmothers a litmus test for approval across history and culture?

    "The point is that there is natural human disgust with it."

    Murder or porn? There isn't natural human disgust at sex.

    "Also, drawing naked pictures isn't the same thing as the stuff that gets DEATFBIRSECIA wet."

    Movies and the Internet weren't exactly around for most of history. Obviously you can't directly compare, but you can draw conclusions based on what was considered acceptable

  • General Butt Naked||

    Not to mention that engaging in a subversive genre is in of itself a form of defiant speech. Producing defiant speech is a political act regardless of the intention of the speaker.

  • General Butt Naked||

    If you can't see the difference between saying "America sux!" and saying "America sux!" then killing a bunch of people then you're not much smarter then the barnyard animals you spend romantic evenings with.

  • General Butt Naked||

    Well, then what is the difference?

    Help me understand the point.

  • Calidissident||

    Your analogies are Tony-esque

  • General Butt Naked||

    What's speech? Is a painting speech? Or, how about a movie?

  • DEATFBIRSECIA||

    Agreed. Danny needs to head back to Alabama where the average IQ is low enough to allow shoddy pseudo-argumentation such as his to prevail.

  • DEATFBIRSECIA||

    Then you must not live there.

  • ||

    In honor of Pat Summerall:

    Oh no, there's a man down!

  • JMos||

    I'm pretty sure we'll hear from the Justice Department "relatively soon", right?

  • deified||

    It's cool. Isn't it nice to have the government just kind of slink away and NOT do something?

    It's like when we thought we had won the gun control wars between Heller and Newtown.

  • Paul.||

    "The best way to serve the federal interest in protecting public health and safety

    Is there a federal interest in protecting public health and safety?

  • Paul.||

    "The first choice might be to legalize the substance nationally," he said, although he does not see that happening until "sometime in Hillary Clinton's second term."

    Wouldn't that be Biden's fourth?

  • Fist of Etiquette||

    ... would serve the interests of prohibitionists as well as legalizers, since any attempt to prevent state-licensed pot stores from opening would foster unregulated production and distribution.

    Prohibitionists fall into two categories. Motivated by financial self-interest and/or by soccer mom-ish feelings.

  • Paul.||

    Another possibility, he said, would be legislation protecting cannabis businesses in states with regulatory plans that meet federal approval, but he does not think that is likely anytime soon either.

    Uhm, not to point out the obvious, but to point out the obvious, a regulatory plan that meets federal approval would be a ban, because the feds currently regard marijuana as ipso facto illegal.

  • ethernot||

    "If the feds are smart, Taylor argues, they will actively encourage appropriate state regulation …"

    Not a question of smart, unfortunately; more about greed and power.

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