The Volokh Conspiracy

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Senate Democrats Embrace Marijuana Federalism. Will Republicans?

Senate Democratic Leader Charles Schumer is embracing a sensible approach to marijuana reform.


Senate Democratic Leader Charles Schumer (D-NY) has joined with Senators Cory Booker (D-NJ) and Ron Wyden (D-OR) to propose serious marijuana reform legislation. Although still in a discussion draft, the proposed Cannabis Administration & Opportunity Act (CAOA) represents a serious attempt to respond to the dramatic increase in support for marijuana legalization while still respecting those jurisdictions that have refused to embrace marijuana law reform. In short, the CAOA embraces Marijuana Federalism. (I wonder if any of its sponsors read my book: Marijuana Federalism: Uncle Sam and Mary Jane.)

The CAOA would decriminalize marijuana at the federal level, but would not preempt state laws that prohibit or limit marijuana use and possession. Under the CAOA, trafficking in marijuana and distributing marijuana contrary to applicable state law would also be a federal crime, as it is with alcohol. In other words, the CAOA would give states greater autonomy to set their own marijuana laws in response to local preferences. Other provisions of the proposed bill would pave the way for the taxation and regulation of marijuana (treating marijuana much like nutritional supplements) and expunge non-violent cannabis offenses.

Eliminating the federal prohibition would not only give states greater control over marijuana within their jurisdictions. It would also eliminate the distortions and perverse incentives created by the way federal marijuana prohibition interacts with tax law, banking regulation, firearm background checks, and immigration law. Treating marijuana more like alcohol would further mean states would continue to receive federal assistance in combatting interstate trafficking—and it would be easier to focus federal resources in this way without the federal prohibition overhang.

This sort of marijuana reform would be most welcome. Democrats no doubt support this reform because of the strong popular support for marijuana decriminalization, particularly among younger voters, and the connection of marijuana prohibition to over-incarceration.

Republicans should support this approach to marijuana too, but for a different reason: Federalism. This approach would mean that each state could adopt the degree of marijuana reform desired by local voters, whether that means full decriminalization (as was just done in Connecticut), allowing marijuana solely for medicinal uses, or a maintenance of prohibition. This would also enable different jurisdictions to experiment with different sorts of reforms, helping to reveal what mix of marijuana policies work best. This is something conservatives should support. Adhering to what Justice Thomas (rightly) described as the "contradictory and unstable" status quo is not.

For more on why Marijuana Federalism makes sense, I shamelessly recommend by book: Marijuana Federalism: Uncle Sam and Mary Jane, published by the Brookings Institution and available on Amazon. My Introduction, "Our Federalism On Drugs," is available here.