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Three Steps Forward for Marijuana Legalization

Democratic control of the House, the passage of marijuana legalization referenda in three states, and the removal of Jeff Sessions presage a brighter future for legalized pot.

A cannabis plant.A cannabis plant.

Over the last twenty-four hours, three events have brightened the prospects for marijuana legalization. First, three states passed pro-marijuana referendum initiatives. The crucial purple state of Michigan became the tenth state to legalize recreational marijuana. Socially conservative red states Missouri and Utah became the latest of 33 states to legalize medical marijuana - the latter despite the strong opposition of the LDS Church. The defeat of a legalization initiative in the relatively small state of North Dakota is a minor setback compared to the three victories. Second, the Democratic takeover of the House of Representatives ensures that there is now a strong House majority in favor of abolishing the federal law banning marijuana. The overwhelming majority of congressional Democrats favor such a move, as do a substantial number of Republicans. Finally, President Trump's abrupt dismissal of Attorney General Jeff Sessions - although unrelated to his championing of the War on Drugs and his many other awful policies - removes the most important opponent of marijuana legalization within the executive branch. It was Sessions who sought to escalate the federal war on marijuana earlier this year, when he terminated an Obama-era policy discouraging prosecution of marijuana producers in states that had legalized pot under state law.

The combination of these three developments significantly increase the chance that Congress might finally abolish or at least severely curtail federal marijuana prohibition in the relatively near future. Earlier this year, Colorado GOP Senator Cory Gardner cut a deal with Trump under which the latter would potentially back the elimination of federal prohibition in states that had legalized marijuana under their own laws. In June, Gardner and Democratic Senator Elizabeth Warren proposed the STATES Act, which would do exactly that. So far, the bill has made little progress. But it or something like it would have a better chance next year. A Democratic-controlled House could pass it without having to worry about the Hastert Rule or potential opposition from socially conservative Republicans who still favor federal prohibition.

The GOP's net gain of two or three seats in the Senate (at this point it is not clear who will prevail in the close race in Arizona) could potentially make passage harder in that chamber. But Gardner would only need a handful of GOP votes (in addition to his own) to get a bill like the STATES Act over the top. And there is a good chance that several other GOP senators might support it on some combination of federalist and libertarian grounds. Eliminating federal prohibition would be an important success for constitutional federalism as well as legalization. Senate Majority Leader Mitch McConnell is unlikely to go to the mat to oppose such a bill, especially given his own enthusiasm for hemp.

Federal marijuana legalization is not yet a done deal. Various factors could still derail it. Even if it does happen, there is still a long way to go on curbing the broader War on Drugs, which inflicts far greater harm than marijuana prohibition alone. Still, prospects for legalization are definitely looking up.

UPDATE: Jacob Sullum makes some related points in this piece, including noting the significance of the defeat of GOP Rep. Pete Sessions (no relation to Jeff, but a fellow influential drug warrior nonetheless).

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  • jdgalt1||

    "But Gardner would only a handful of GOP votes ..." needs a verb.

  • DiegoF||

    "But Gardner would only a handful of GOP votes ..." a verb.

    FTFY

  • Here for the outrage||

    more likes needs an herb... amiright?

    *smack* *smack* ... this thing on?

  • ||

    Marijuana's one of those things (like gay marriage and abortion) that I don't really care about, but I would like to make or keep illegal just to enrage and upset the left.

    There's nothing that upsets liberals more than the idea that a deviant man like Polis can't insert his genitals into another man's tuchis and get "married" by some unitarian minister.

  • Remember to keep it all polit||

    Your interest in telling other people what they can't do seems like icing on the cake in letting people do the things they want without government interference.

    Your interest in violating individual rights just to piss off your political opponents is hardly the epitome of being patriotic.

  • JesseAz||

    Was the mention of cake an intended reference?

  • Jimmy the Dane||

    If you want icing on a cake just don't force a baker to make you one for your gay marriage.

  • Jimmy the Dane||

    If you want icing on a cake just don't force a baker to make you one for your gay marriage.

  • James Pollock||

    If you don't want to bake cakes for people in exchange for money, maybe "baker" was a poor career choice.

  • M.L.||

    Compelled speech: Just part of the cost of earning a livelihood.

  • James Pollock||

    Ask the on-air news personalities of Sinclair broadcasting group about how it works.

  • M.L.||

    What speech is the government compelling them to make?

    I don't know any of these people so maybe you can just tell me. I'll wait.

  • James Pollock||

    "What speech is the government compelling them to make?"

    Something about moving goalposts, I guess.

  • M.L.||

    Something about having zero understanding of Constitutional law, I guess.

  • James Pollock||

    "Something about having zero understanding of Constitutional law, I guess."

    Since you're the only one talking about the government, it appears that my understanding is superior to yours.

    I guess.

  • Arcxjo||

    Since when are wedding cakes not decorated?

  • ||

    You're begging the question. The crux of the debate whether smoking weed, killing fetuses and having gay sex are "rights."

  • James Pollock||

    Yes, they are.

    Also having dumb opinions, luckily for you.

  • Alpheus W Drinkwater||

    Why do I get the impression that ARWP would really benefit from exercising the first and third of those rights?

  • James Pollock||

    I'm fairly sure the third one has been a done deal for a VERY long time.

  • Jimmy the Dane||

    If you want icing on a cake just don't force a baker to make you one for your gay marriage.

  • ||

    That's just it though the totalitarian left won't settle for that.

  • JesseAz||

    I'd prefer to legalize it, but make it a condition of restricting welfare programs. If you can afford recreational pot you don't need welfare.

  • James Pollock||

    You including VA programs under "welfare"?

  • ||

    VA pensions and health insurance? No. I'm talking about food stamps and Obamaphones.

  • James Pollock||

    Nobody cares what the Russian drones are talking about.

    I asked somebody else a question, so hush up and let him answer it.

  • ||

    Why don't you go fly a kite?

  • James Pollock||

    Yay! You finally found a new insult. So fresh! So sweet! And original!

  • Rev. Arthur L. Kirkland||

    Time and American's liberal-libertarian mainstream will handle this problem. When enough stale-thinking authoritarian right-wingers die off and are replaced by better Americans in our electorate, and enough conservative drug warriors leave public office, liberty and morality will prevail with respect to drug legalization. Conservatives and Republicans can thwart progress temporarily but they do not win in the end against the tide of American progress. Someday relatively soon, drug dealers will be regarded in the same manner as craft brewers, grocers, or liquor store proprietors, and it will be difficult to find someone willing to admit that he once was a drug warrior.

  • VinniUSMC||

    Blah blah blah.

    The overwhelming majority of congressional Democrats favor such a move, as do a substantial number of Republicans.

    Do the world a favor and take as many drugs as you can get your hands on all at once, thanks.

  • Rev. Arthur L. Kirkland||

    Americans haven't won a war, Vinni, in 70-some years . . . unless you are on the side that has won the culture war.

    Which you aren't.

    Which means your record of failure in war is unmarred by success. Congratulations, loser.

  • James Pollock||

    First Persian Gulf War. George Sr. knew how to run a war.

  • Jimmy the Dane||

    You mean after the liberals let in enough illegals who have anchor babies with so-called "birth right" citizenship, correct?

  • ||

    Yes. Every mestizo woman with illegitimate children is another slave on the Democrat Party plantation.

  • Harvey Mosley||

    If it's the fault of right wing old white men like me that pot is not legal can yo explain two things for me?

    1) Why didn't the Democrats legalize it when they controlled Congress and the White House a few years back (or at least make a serious effort).

    2) How do you explain my support for legalizing all drugs (on this very blog in response to you at least once) going back years if I'm (and people like me are) the reason it is still illegal?

  • James Pollock||

    1) they charge the healthcare hill, instead, and by the time the fighting on that hill was done, they were out of time, and didn't have the filibuster-proof majority any more. Losing Ted Kennedy's Senate seat was an unexpected setback for them.

  • Jimmy the Dane||

    Smoke weed. Gay marry. Get an abortion (although I think the red line on that one is when the child is actually able to live survive outside the womb). News flash is 90% of Americans don't care about any of these issues. They are merely political footballs for the 10% who do care and will go out and vote on one of them.

    Here are what most Americans. Low taxes. Jobs. Infrastructure that isn't broken. Nuisance illegals deported. Guns if they so want to own and carry. And to be left alone. That's it. That is why we have Trump.

    They don't care about religion. Practice whatever one you want just don't tell me this isn't a Christian nation in origin. Most could give two s's about foreign policy. They don't care some abusive reporter hit an intern and got his press pass revoked. And they could care less a judge who is going to uphold the rule of law is slandered from allegations of sex crimes that occurred last century.

    If either political party could figure this out then they could rule for decades.

  • James Pollock||

    "Here are what most Americans. Low taxes. Jobs. Infrastructure that isn't broken. Nuisance illegals deported. Guns if they so want to own and carry. And to be left alone. That's it. That is why we have Trump."

    You're making the mistake of assuming that what you and your buds want is what everyone wants. There are lots of you, but you're not anywhere close to being "all Americans", or even "most Americans".

    "don't tell me this isn't a Christian nation in origin."

    This isn't a Christian nation in origin. Neither is any other nation, neither has any other nation ever been, nor can any other nation ever be, a "Christian nation". This is true because a "Christian nation" would be contrary to the wishes of Jesus. Jesus' followers asked him to take over the government, and cast out the hated Roman invaders. Jesus declined, claiming that He had no interest in governing in this world. With Christ taking so strong a stance on separation of church and state, it's odd that so many of his followers didn't get the message.

  • ||

    Yeah I know what your side wants is free stuff paid for by us. Your people are not real Americans.

  • Per Son||

    Come on. Most incels like you don't work.

  • M.L.||

    James Pollock actually made a coherent point.

    Although, this is a "Christian nation in origin" in most ordinary senses of that phrase. The founders were almost uniformly Christians, and their Christianity was foundational to their beliefs about how the government should be structured. Meaning: they believed in inalienable rights and natural law, and accordingly the Constitution included an unprecedented focus on individual liberty, particularly, yes, the 1st amendment's free exercise and establishment clauses. (The phrase "separation of church and state" is sort of a misnomer, though, and today tends to imply a very different sort of principle, advanced by some leftists, which is neither Constitutional nor otherwise really defensible.)

    But of course the U.S. was not founded as a "Christian nation" in the sense of creating a theocracy: the federal government must not create or establish a state church (although individual states could do so), and religious liberty is a right and must be protected. But at the same time it was clear that religion belonged in the public square.

    Paradoxically, the very fact that the U.S. was not founded as a "Christian nation" in certain senses, is due to and illustrates that the U.S. was founded as a profoundly "Christian nation" in other senses.

  • James Pollock||

    " (The phrase "separation of church and state" is sort of a misnomer, though, and today tends to imply a very different sort of principle, advanced by some leftists, which is neither Constitutional nor otherwise really defensible.)"

    I didn't argue that separation of church and state comes from the Constitution (although it does, once the 14 amendment is held to apply the Bill of Rights to the states).

    I argued that there's no such thing as a "Christian nation" because such a thing offends Christ, not nations.
    There's a LOT of wiggle room to interpret His teachings... somebody looked at the teachings of Jesus and came away with "prosperity gospel"... but separation of church and state for Christians is a dead issue, and has been since before Jesus even left.

  • M.L.||

    I said you had a valid point, if "Christian nation" means a theocracy. But it could also mean simply a nation that is majority Christian, or a nation whose system of government is deeply influenced by Christian ideas. In a more ordinary sense of the phrase, the U.S. is clearly a "Christian nation in origin."

  • James Pollock||

    "a nation whose system of government is deeply influenced by Christian ideas."

    By that definition, China is currently a "Christian nation".

  • M.L.||

    "Separation of church and state" is not anywhere in the Constitution, including the 1A. And the contemporary understanding of such a concept is contrary to the original meaning of the Constitution. Here's the origin of the phrase:

    In 1802 [years after the 1A was written], Thomas Jefferson penned a letter to the Danbury Baptist Association in which he famously suggested that the First Amendment created a "wall of separation between Church & State." This metaphor lay dormant with respect to the Supreme Court's Establishment Clause jurisprudence until 1947, when Justice Hugo Black seized upon it as the definitive statement of the Founders' views on church–state relations.[34]

    As appealing as the wall metaphor is to contemporary advocates of the strict separation of church and state, it obscures far more than it illuminates. Leaving aside the fact that Jefferson was in Europe when the Constitution and Bill of Rights were written, that the letter was a profoundly political document, and that Jefferson used the metaphor only once in his life, it is not even clear that it sheds useful light upon Jefferson's views, much less those of his far more traditional colleagues.
  • James Pollock||

    ""Separation of church and state" is not anywhere in the Constitution, including the 1A."

    True enough that those exact words do not occur in that exact order. It's a paraphrase of the idea that IS in the Constitution, specifically in the 1A. It comes from the double prohibition... no establishing churches (we can't make you join a church) and no restriction on practice of religion (and we can't make you leave the one you're already in.)

    I mean, the separation of state from church is a more accurate rendering, but Jefferson was the dude, see, and so his words, even though a little bit inexact, have staying power.

  • M.L.||

    Jefferson wasn't the dude, and it's not a paraphrase. It's an entirely different concept, as it is understood today.

  • James Pollock||

    Jefferson was TOTALLY the dude. If you're going to argue that Jefferson was NOT the dude, you are in the WRONG country, dude.

  • phattyboombatty||

    There's a fourth event that was omitted from this post. JB Pritzker winning the Illinois governor election means that Illinois will legalize recreational marijuana in the near future. He campaigned on legalizing recreational marijuana as a way to balance the budget. Democrats have solid majorities in both the Illinois senate and house of representatives.

  • M.L.||

    Is Professor Somin a pot user?

  • loveconstitution1789||

    Declare the Controlled Substances Act unconstitutional like it is.

  • Arcxjo||

    "Second, the Democratic takeover of the House of Representatives ensures that there is now a strong House majority in favor of abolishing the federal law banning marijuana"

    HAHAHAHAHAHAHAHA!!!

  • phattyboombatty||

    I share your skepticism. In 2009, when the Democrats had super majorities in the Senate and House, and President Obama was in office, absolutely no steps were taken in favor of legalizing marijuana even though the Democrats could have done anything they wanted.

    The Democrats' desire to preserve and maintain the bureaucratic machine of the federal government outweighs any desire to legalize marijuana.

  • James Pollock||

    "absolutely no steps were taken in favor of legalizing marijuana even though the Democrats could have done anything they wanted."

    They chose to tackle healthcare first, and ran out of time to do anything else.

  • Harvey Mosley||

    I keep seeing things that say that Democrats want to legalize pot. But when they controlled the House, Senate, and White House they were as anti pot as the Trump Administration has been.

  • James Pollock||

    " they were as anti pot as the Trump Administration has been."

    They left the states alone to decide for themselves. The W administration didn't, and neither did Sessions.

    I can certainly see not equating the Obama administration's position with full support for federal legalization. But no, the last three administrations did not have the same positions on the subject.

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