Medical Marijuana and Federalism
Last week, I blogged about the DEA’s decision not to change the classification of marijuana as a Schedule I substance. While the decisions seems to me absurd, not all of the news in this area is bad. In fact, the movement to legalize marijuana under varying circumstances has never been stronger.
It should not be all that surprising that the DEA – a government agency charged with the mission of enforcing the drug laws – should be so unsympathetic and hostile to the benefits of one of the drugs they regulate. After all, they would be in essence admitting significant error if they acknowledged that marijuana had important benefits. Of course, less understandable is why Congress and the executive assign this task to the DEA. Still, the point here is that who makes the decision is important in a political system.
One of the virtues of the American system is federalism. While the federal government has been very hostile to marijuana for years, decisions in the U.S. are not only made at the national level. Thus, the federal government may continue to be strongly against marijuana, while at the state level there is growing support for permitting it under certain circumstances.
The number of states allowing medical marijuana (25) has been expanding as has the number of states allowing recreational use (4). In 2016, 4 additional states will decide on whether to legalize recreational use of marijuana and another 5 states will decide on medical marijuana.
Once a sufficient number of states allow medical marijuana – what that number is hard to say – one would expect to see Congress carve out areas of federal law that will not operate against activities that are legal under state medical marijuana laws. Already, Congress has been passing appropriation restrictions that prevent the Department of Justice and the DEA from enforcing federal laws against activities that are allowed by state medical marijuana laws.
The key point is that medical marijuana is likely to be allowed (and perhaps eventually recreational marijuana) under both state and federal law in states that allow it. This would have been very unlikely to happen if states did not have the ability to take the initiative in allowing such activities.
Of course, federalism would have worked better in my view if the Constitution’s original meaning had been followed. Under the genuine original meaning, only sales across state lines could have been clearly prohibited by federal law. (Perhaps, the federal government could have also prohibited the transport of marijuana through certain channels of interstate commerce like ships and highways.) Thus states could have allowed medical marijuana within their borders, including in-state sales.
But that understanding is gone – for now, and perhaps forever. But the federalism that we still have – weak as it is compared to the original meaning – is still better than nothing. Much better.