In 2014, voters in Colorado and Washington state voted to legalize marijuana possession within their states. This November, voters in Oregon, Alaska and the District of Columbia will get the chance to follow suit. Voters in Florida will also decide whether to join the approximately 20 states which allow marijuana possession and use for medicinal purposes. Whatever these states decide, however, marijuana will remain illegal under federal law.
Conservative Republicans often talk about the need to constrain the power of the federal government. On everything from environmental regulation to education policy, Republican officeholders argue that individual states should be able to adopt their own policy priorities, free from federal interference. Yet many of these same people are silent when the question turns to marijuana.
Earlier this year, the House of Representatives voted to cut off Drug Enforcement Administration funding for raids on medical marijuana dispensaries in states where medical marijuana is legal. The measure passed with the support of 49 Republicans. This is a significant increaseover the last time such a limitation on the DEA had been proposed, when only 28 Republicans supported respecting state choices on medical marijuana, but it still represents less than one-quarter of the GOP caucus. So many Republicans who believe it’s federal overreach when federal law regulates health insurance or power plant emissions think its just fine when the federal government prohibits the possession of a plant, even where authorized under state law.
Some prospective Republican presidential candidates appear to be more supportive of state prerogatives over marijuana policy than are Republican members of Congress.
Texas Gov. Rick Perry opposes outright legalization of marijuana (although he supports partial decriminalization of some possession). Nonetheless, he has endorsed the right of each state to make this decision for itself. As Jacob Sullum notes, this could make Perry more “liberal” on marijuana that President Obama.
Former Florida governor Jeb Bush also opposes legalization, and has come out against the Florida medical marijuana initiative. Yet he has also made comments suggesting that this should be a state issue. Though he has some concern about potential spillover effects — i.e. what happens to neighboring states if marijuana is legal next door — he seems to recognize the virtue of federalism when it comes to marijuana.
Rep. Paul Ryan (R-Wis.), while running for vice president, also expressed support for letting states decide whether to legalize medical marijuana, at least temporarily. He told a Colorado television station that he believed Washington should “let the states decide what they want to do with these things.” Within days, however, the campaign claimed that Ryan supported Mitt Romney’s position and opposed any legalization of marijuana.
While some Republicans oppose state marijuana policy reforms out of a knee-jerk opposition to drugs of any sort, others (such as Jeb Bush) appear to have legitimate concerns about the effects legalization in one state could have on other states’ ability to maintain marijuana prohibition. These are non-trivial concerns, though I think they can be addressed. When alcohol prohibition was repealed, states retained the ability to prohibit or regulate alcohol and the federal government focused on supporting state-level preferences by prohibiting interstate shipment of alcohol in violation of applicable state laws. There’s no clear reason why a similar approach to marijuana would be less effective.
Some of the more difficult legal questions confronting state efforts to legalize marijuana involve the intersection between state law and the existing federal prohibition. Even if the federal government decides to scale back marijuana law enforcement in non-prohibition states, federal law remains federal law and it continues to have an effect. Banks, attorneys and others are bound to respect federal law even in the absence of conforming state laws, and the legalization of a product at the state law does not eliminate the federal prohibition.
Last December, I moderated a panel on “Marijuana and the States,” co-sponsored by CWRU’s Center for Business Law and Regulation and the Federalism Society that explored some of the tensions between state and federal law on marijuana, particularly in the area of law enforcement. The Obama administration claims it wants to respect state choices, but the laws against marijuana remain on the books. So those who possess marijuana — or facilitate the production and sale of marijuana — are still violating federal law, and there’s not much the Justice Department, acting on its own, can do about that.
To further explore the legal and policy questions raised by state-level marijuana policy reforms, the Center for Business Law and Regulation will be hosting a day-long conference on September 12: Marijuana, Federal Policy, and the States. Presenters will include Ernest Young (Duke), Angela Hawken (Pepperdine), Robert Mikos (Vanderbilt), Julie Hill (Alabama) Doug Berman (OSU), Mark Kleiman (UCLA), Alex Kreit (TJSL), Brannon Denning (Cumberland), John Hudak (Brookings) and the VC’s own Will Baude (Chicago). The papers will consider a range of questions from the scope of federal power and range of state autonomy to the control of spillover effects and the intersection of marijuana prohibition and banking law. Registration and webcast information may be found here.
The hope for the conference, like the December panel, is to spur greater discussion on the federalism issues presented by state-level marijuana policy reform. It seems pretty clear that multiple states want no part in marijuana prohibition. The question, then, is whether the federal government will let states go their own way and, if so, how the federal government an accomplish that end.
Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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