Leahy Schedules a Senate Hearing on the Federal Response to Marijuana Legalization

Today Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) announced that he will convene a hearing on September 10 to examine "conflicts between state and federal marijuana laws." He has invited Attorney General Eric Holder and Deputy Attorney General James Cole to testify. Leahy, who said last December that he planned to hold a hearing on the issue this year, wants the Obama administration to let the legalization experiments in Colorado and Washington proceed:

It is important, especially at a time of budget constraints, to determine whether it is the best use of federal resources to prosecute the personal or medicinal use of marijuana in states that have made such consumption legal. I believe that these state laws should be respected. At a minimum, there should be guidance about enforcement from the federal government.

I trust that Leahy will go beyond the question of marijuana consumption to address production and distribution, which are the real issues as far as federal meddling goes. UCLA drug policy expert Mark Kleiman, who has advised the Washington State Liquor Control Board on marijuana regulation, argues that the administration also should go beyond "guidance about enforcement" by formalizing an agreement that the feds will refrain from interfering in exchange for state help with controlling interstate smuggling of newly legal marijuana. (Stuart Taylor made a similar proposal in a Brookings Institution paper published last April.)

In a new Journal of Drug Policy Analysis article, Kleiman notes that the Controlled Substances Act says the attorney general "shall cooperate with local, State, and Federal agencies concerning traffic in controlled substances and in suppressing the abuse of controlled substances." Toward that end, "he is authorized to…notwithstanding any other provision of law, enter into contractual agreements with State and local law enforcement agencies to provide for cooperative enforcement and regulatory activities." Such a contract, Kleiman says, would provide more assurance of federal forbearance than simple inaction. Alternatively, he says, Congress could authorize the attorney general to issue "waivers" exempting state-legal marijuana producers and sellers from federal prosecution as long as certain conditions aimed at minimizing diversion are met.

Here is Kleiman's response to those who argue that the Justice Department has a duty to vigorously enforce marijuana prohibition even in states that have opted out:

To the immediate objection that the Executive Branch—charged by the Constitution with the "faithful execution" of the laws—has no authority to acquiescein the violation of some of those laws, there is an equally immediate rejoinder; those laws are now being violated and will continue to be violated, in ways the Executive is practically powerless to prevent in any case and still more powerless without the active engagement of state and local enforcement agencies. If "the abuse of controlled substances" can be more effectively suppressed with cooperative agreements than without them, then the mandate to cooperate for the purposes of the Act might be best carried out by explicitly agreeing not to do what the federal government cannot in fact do with or without such an agreement.

Kleiman, whom I interviewed today for an upcoming Reason article about legalization in Washington, tends to see Holder's 10-month delay in responding to the passage of I-502 in that state and Amendment 64 in Colorado as a sign that the administration may be open to such cooperation. He notes that President Obama, in a December interview with ABC News, not only said that "going after recreational users" would not be "a top priority" for the federal government (which it never was) but also called for "a conversation" addressing the question, "How do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it's legal?" Kleiman's paper suggests a couple of ways.