Shortly before the House of Representatives approved a federal ban on marijuana in 1937, the Republican minority leader, Bertrand Snell of New York, confessed, "I do not know anything about the bill." The Democratic majority leader, Sam Rayburn of Texas, educated him. "It has something to do with something that is called marihuana," Rayburn said. "I believe it is a narcotic of some kind."
Seventy-five years, millions of arrests, and billions of dollars later, we are still living with the consequences of that ignorant, ill-considered decision, which nationalized a policy that punishes peaceful people and squanders taxpayer money in a blind vendetta against a plant. Last week voters in Colorado and Washington opted out of this crazy cannabicidal crusade by approving ballot initiatives that will set up experiments from which the rest of the country can learn—assuming the federal government lets them run.
Both initiatives abolish penalties for adults 21 or older who possess up to an ounce of marijuana and for state-licensed growers and sellers who follow regulations that are supposed to be adopted during the next year or so. Pot prohibitionists such as Asa Hutchinson, former head of the Drug Enforcement Administration (DEA), argue that allowing marijuana sales violates the Controlled Substances Act and therefore the Constitution, which makes valid acts of Congress "the supreme law of the land."
But the Supremacy Clause applies only to laws that Congress has the authority to pass, and the ban on marijuana has never had a solid constitutional basis. If alcohol prohibition required a constitutional amendment, how could Congress, less than two decades later, enact marijuana prohibition by statute?
The initial pretext was the one the Supreme Court used this year to uphold the federal mandate requiring Americans to buy government-approved health insurance: The law, dubbed the Marihuana Tax Act, was dressed up as a revenue measure. By the time the ban was incorporated into the Controlled Substances Act in 1970, Congress had a new excuse: It was exercising its authority to "regulate commerce…among the several states."
Seven years ago, the Supreme Court concluded, preposterously, that Congress is regulating interstate commerce even when it authorizes the arrest of a cancer patient who uses homegrown marijuana for medical purposes in compliance with state law. But states indisputably remain free to say what is and is not a crime under their own laws, and that is what Colorado and Washington are doing.
Whether or not it tries to block marijuana legalization in the courts, the Obama administration can raid state-legal pot shops, as it has done with medical marijuana dispensaries. It can use asset forfeiture as an intimidation tactic against landlords and threaten banks that accept deposits from pot businesses with money laundering charges. The Internal Revenue Service can make life difficult for pot sellers by disallowing their business expenses.
The one thing federal drug warriors cannot do, judging from their track record even when they have the full cooperation of state and local law enforcement agencies, is suppress the business entirely, let alone arrest a significant percentage of people who grow pot for themselves and their friends (as Colorado's initiative allows). According to the FBI, there were 758,000 marijuana arrests nationwide last year, the vast majority for possession. The DEA was responsible for about 1 percent of them.
Given their limited resources, the feds may yet see the wisdom, if not the constitutional imperative, of letting Colorado and Washington go their own way. Last year a Gallup poll put national support for marijuana legalization at 50 percent—the highest level ever recorded. Brian Vicente, co-director of the campaign for Colorado's legalization initiative, hopes last week's historic votes "will send a message to the federal government that they need to back off entirely and let states engage in the responsible regulation of marijuana."
Hard-line drug warriors like Hutchinson are keen to prevent that from happening—not because they fear it will be disastrous but because they fear it won't be.