As More States Legalize Marijuana, the Need for Marijuana Federalism Grows

If states are to have different marijuana laws and policies, federal reform is necessary.

Connecticut Governor Ned Lamont signed a bill today legalizing marijuana within the state. Effective July 1, marijuana possession is no longer a violation of state law, and retail sales or marijuana could begin next year.

Connecticut is the fourth state to legalize marijuana in 2021, and the 18th state to have done so overall (as has the District of Columbia). Marijuana possession for medicinal purposes is legal in an additional 18 states, and several other states have decriminalized marijuana possession in one form or another.

The rate at which state marijuana laws have changed is simply remarkable. Less than 30 years ago marijuana was illegal for all purposes in every state. The first state did not legalize marijuana for recreational purposes until 2014. And now, a majority of Americans live in states where marijuana possession and use is allowed  . . . but (and here's the catch) marijuana remains illegal under federal law.

While states have moved rapidly to change their marijuana laws in line with changes in public opinion, the federal government has stood pat. This means that marijuana remains illegal to sell or possess. And while the risks of federal prosecution for marijuana offenses remains low, the fact of marijuana's criminal status under federal law has broad implications. Marijuana's status effects banking regulation and gun purchase background checks. It can create sticky situations for lawyers advising marijuana-related businesses and marijuana production can serve as a predicate offense for civil RICO.

While marijuana legalization is popular in much of the country, it is not popular everywhere. Fortunately, our constitutional structure provides a way to allow states to adopt those policies that align with the preferences of state residents without federal interference while simultaneously empowering the federal government to help protect those states that wish to keep marijuana illegal from spillovers from their neighbors: Federalism. But this requires more than the federal government leaving current laws in place. It requires marijuana federalism (not coincidentally, the subject of my recent book on the subject).

The way to facilitate marijuana federalism is for the federal government to focus on interstate drug trafficking while leaving routine drug law enforcement to the states. This is not a novel idea. It is precisely what was done when alcohol prohibition was ended by the 21st Amendment. Whether and how it is legal to produce and sell alcohol is a function of state law. Federal law, however, provides that it is a federal offense to transport or  distribute alcohol in violation of state law. In this way, the federal government facilitates and enhances the ability of each state to adopt its own alcohol policies. There is no reason the same could not be done with marijuana. Indeed, legislation has been proposed to this effect.

Marijuana federalism would enable each state to experiment with marijuana policy reforms. In this way, states could learn from one another about the relative costs and benefits of different reforms, and how making marijuana more or less available affects crime, education, and other societal concerns. Early returns from Colorado and Washington suggest that legalizing marijuana has had less of an effect -- both positive and negative -- than many supposed. As more states legalize, and adopt different types of marijuana laws and regulations, we will learn more about the positives and negatives ot ending this part of the war on drugs.

In the case of alcohol, every state eventually chose to legalize alcohol, though the variation in state laws remains. This might be the end result of marijuana federalism, but it might not. What we can be sure of, however, is that state-level reforms would be informed by the experiences of other states, and we would avoid the potential downsides of a one-size-fits-all marijuana policy becoming one-size-fits nobody. It is clear that most Americans think that marijuana prohibition is a mistake, but it is not clear what types of marijuana laws would be ideal, or even whether the laws that are best for California or New York make the most sense for Nebraska or Ohio.

This is the case we try to make in my Brookings Press book, Marijuana Federalism: Uncle Sam and Mary Jane (also available from Amazon).  My introduction is available here. Other chapters in the book address the legal and constitutional questions, the effect on banking regulation and lawyers' professional responsibility, changes in public opinion and the practical consequences of legalization in those states that legalized first, among other things.  It also explains why the status quo -- state legalization, regulation and often encouragement of a something criminalized under federal law -- is neither stable nor desirable.

 

Comments

[Dilan Esper]

I think if you are going to make a "wisdom of federalism" argument, drug policy is a good place for it. As you point out, we already have the history of federalism in alcohol policy, and we also just have deep-seated moral differences between different parts of the country on the issue of narcotic use. Plus, it's not really an issue of rights- it isn't that there's any intrinsic human right to smoke marijuana, it's just that people enjoy doing it and different regions feel differently about it.

[Don Nico]

We need more than a "wisdom of federalism." We need an outright reform of US government policy. People applying for clearances, especially sensitive ones, are asked under penalty of perjury, whether they use drugs including MJ. They should not be lying opening themselves to criminal charges or to being fired from their jobs.
We can have the country "half-pregnant" on this issue.

Legalize or enforce, and cut the chickenshit federal approach.

[Dr. Ed 2]

This issue will reach critical mass when (not "if") some gun-friendly state passes a similar nullification of the National Firearms Act and states that its residents have the right to possess *fully* automatic weapons without a FFL.

The argument will be simple -- if other states can nullify the Federal Narcotics Act with impunity, then it is an equal protection violation for them not to have an equal right to nullify the Federal Fireams law. Particularly as the latter is an enumerated right...

[Bored Lawyer]

In 20 years, we will bitterly regret legalizing marijuana.

[Dr. Ed 2]

It won't take 20 -- my estimate is less than half of that -- just like the 18-year-old drinking age in the 1970s...

[rsteinmetz]

In 1971 the Constitution was amended to lower the voting age to 18 largely because 18 year olds were dying in Vietnam. In 1981 the Feds bribed the states to raise the drinking age, depriving millions of voters of their full rights as voters.

[Brett Bellmore]

I actually became old enough to drink twice, in Michigan, which was a bit bizarre.

[Dilan Esper]

Did we bitterly regret re-legalizing alcohol? And that's despite the fact that alcohol has much more severe effects than pot, effects that significantly increased post-prohibition.

I suspect in 20 years, marijuana prohibition will look a lot like alcohol prohibition.

[Leaf's Chauffeur]

The difference is we can say most people don't abuse alcohol to dangerous levels. (idk if this is true or not, but we can certainly placate ourselves with that thought.) There is no such thing as the "glass of wine with dinner" by weed. No one I know who smokes weed, doesn't get high when they indulge in their vice. But most of the people I know who drink don't get drunk when they indulge in their vice.
There is certainly an argument to be made that the government should not be legislating drugs, or that getting high is not dangerous, but don't compare Prohibition to marijuana.

[Alpheus W Drinkwater]

The "slight buzz" most people will get from a couple drinks or a few beers isn't being drunk, but it's very akin to a marijuana high. I'm not sure your distinction makes much sense. The fact that there really isn't a marijuana caused state akin to full blown inebriation is a factor in marijuana's favor.

[Leaf's Chauffeur]

75% of people have less than one drink a day (including the 28% of abstainers). But 89% of all people have less than 14 drinks a week. That should mean most people drinking are having less than "a few beers." Whatever buzz most people are getting from that is simply not comparable to the effects of marijuana. Note: this is purely an experiential and anecdotal observation, but I simply don't know of anyone who took just one hit or puff and smoked weed but did not get high. They didn't green out every time, that's not what I'm trying to say, but basically I have never seen someone smoke weed without it affecting their behavior and I constantly see people drink without it affecting their behavior. It's possible this is changing with legalization, especially with the advent of these wine cooler style weed drinks.

[Brett Bellmore]

I actually homebrew mead, and I doubt I drink more than a couple times a week, and never past the point of getting slightly tipsy.

My wife actually required me to get drunk in front of her before the wedding, she wanted to see the veritas. Fortunately, the only thing that happens when I get drunk is that I get cheerful and talkative.

Anyway, there's this well established dynamic where a prohibition pushes consumption towards the hard stuff. It's more bang for the buck for both the smuggler and the purchaser; The risk of discovery scales with the bulk of the product, so both ends of the transaction prefer more concentrated products.

Prohibition warped American alcohol consumption towards hard liquor and away from beer and wine, and it took a very long time to revert back. I expect something similar is going to happen with drugs, should we ever get over this mania.

The problem with pot, of course, is that the active compounds aren't metabolized or excreted very fast, and are fat soluble. So the effects linger.

[Brett Bellmore]

We didn't relegalize alcohol because most people didn't abuse it, though that's true. We relegalized alcohol because we recognized that the collateral damage from outlawing it was worse than the damage from legal alcohol.

[Don Nico]

Only if the Feds legalize it.

[Leaf's Chauffeur]

Spellcheck please: "hte" "spuillover". That's basically where I stopped reading.

[M L]

The states should nullify and decline to enforce federal laws they regard as unconstitutional, and if necessary, interpose.

[Brett Bellmore]

We don't need marihuana federalism. We need federalism, period. A restoration of constitutional government, really.

The key sign of constitutional decay here is that Prohibition was accomplished with a constitutional amendment, because federalism was still healthy at the time, and it was recognized that the federal government didn't actually have the constitutional authority to ban alcohol.

The war on drugs was NOT accomplished by constitutional amendment, because the federal judiciary's inclination to actually enforce constitutional limits on federal power had eroded by that time, as had legislators' inclination to acknowledge such limits.

It started with rationalization of regulating intrastate activities as a form of taxation, but once the judiciary and legislature got used to doing it, they ditched the rationalizations. At this point neither branch admits that there are things beyond the federal government's authority.

THAT is the real problem, not one single instance of that over reach, the over reach in general.

[tkamenick]

"The way to facilitate marijuana federalism is for the federal government to STOP FOCUSING ON DRUGS." FTFY. Trafficking is only a problem if you assume drugs themselves are a problem. Just let states themselves decide what they want to prohibit and spend resources on.

[Brett Bellmore]

If I weren't an originalist and a textualist, I'd say the easiest way to get there would be to simply rule that, for constitutional purposes, all intoxicating drugs were "intoxicating liquors". I mean, the 21st amendment doesn't even say "alcohol", compared to some current jurisprudence it's hardly a stretch at all.

[ReaderY]

I think Raich v. Ashcroft was wrongly decided. The idea that simple posssession in ones home is somehow interstate commerce is just rediculous.

Based on Raich’s logic, the federal government ought to be able to regulate not only the posession of contraceptives, not merely all activities involving the use of contraceptives, but all activities that affect the market for contraceptives, which are after all classic “articles” of interstate commerce. How can interstate commerce possibly be considered private? Raich makes clear that the fact fhat activities take place entirely in ones home makes no difference.

[ReaderY]

Indeed, if the Supreme Court ever wants to limit Roe v. Wade, all it has to do is apply long-standing precedents that interstate commerce and privacy are opposites, and exempt everything that falls within interstate commerce from its scope.