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A Smarter Federal Path on State-Voted Marijuana Laws

Neal Peirce / Apr 26 2013

For Release Sunday, April 28, 2013
© 2013 Washington Post Writers Group

Neal PeirceWASHINGTON – The time is at hand for the Obama administration to stop dithering and take a clear position on the rights of Washington State and Colorado – and by precedent all others – to experiment with legalized marijuana.

That’s what Govs. Jay Inslee of Washington and John Hickenlooper of Colorado are asking the Justice Department to do – even though they personally opposed the marijuana legalization measures their voters approved last November.

The governors insist they can make their states’ new laws work well through responsible regulations that license, regulate and tax the production and sale of marijuana. New state labeling laws, say supporters, will also remove confusion and dangerous use levels by showing the potency in terms of THC, the psychoactive component of the cannabis plant, analogous to labeling of alcoholic beverages.

Clearly it’s a direction the American people – who favor marijuana legalization 52 to 41 percent in recent polling – would approve.

A collaborative approach would be consistent with Obama’s own marijuana history – a substance he tried as a youth. Asked about the Colorado and Washington legalization votes last December, he told Barbara Walters, “It would not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal,” because “we’ve got bigger fish to fry.”

But Mr. President, there are serious issues to resolve. As personal purchase and use of marijuana is permitted in some states, can the practice really be contained at state borders? Will television, Web, print advertising be allowed? Will the legalizing states allow many small or just a few large suppliers? How much marijuana will be eligible for sale at one time? How will “marijuana tourism” – out-of-state visitors coming just to stock up – be handled? Will retail outlets be allowed near a state’s borders?

Some undecided states may want to hear answers to these questions: Will marijuana supporters’ predictions of big tax revenues come true? (A Colorado Futures Center study predicts the tax revenues may not even cover the societal costs of legalization.) Will driving under the influence of marijuana prove a problem, and if so, how will it be controlled? On the health front: Will freely available marijuana help returning veterans suffering from PTSD? And generally, will marijuana use lead to more or less use of a substance we know is clearly dangerous: alcohol?

Those are the types of questions that journalist-scholar Stuart Taylor Jr. probes in a newly released Brookings Institution policy paper – “Marijuana Policy and Presidential Leadership: How to Avoid a Federal-State Train Wreck.”

Central to his case: the argument for an early, up-front agreement by the Obama administration and the states. Because the opposite, a fierce federal crackdown on Colorado and Washington State’s licensed marijuana producers and sellers, could well “backfire by producing an anarchic, state-legalized but unregulated marijuana market that federal drug enforcers could neither contain nor force the states to contain.”

And back to President Obama. What about the U.S. Justice Department? It could use threats of conspiracy prosecutions to scare off applicants for state licenses to grow and sell marijuana. But there are federalism barriers: Washington can’t directly force states to enforce federal law. And there are only 4,400 federal Drug Enforcement Administration agents – “nowhere near enough,” Taylor suggests, “to restrain the metastasis of the grow-your-own-and-share marijuana market” – with small-time criminals crowding in – “that state legalization without regulation would stimulate.”

The recent precedents aren’t good. Faced by 18 states’ laws already allowing marijuana for medical use, the Justice Department has swung back and forth from general permissiveness to cracking down unmercifully in individual cases.

A crux of the problem is the federal Controlled Substances Act of 1970, which insists marijuana has no medicinal properties – an assertion “on its face nonsensical,” says Rep. Earl Blumenauer, D-Ore.

But the law’s criminal sanctions for cultivating, possessing or distributing marijuana aren’t alone, notes Taylor. The statute also instructs that the attorney general “shall cooperate” with states on controlled substances, with power “to enter into contractual agreements … to provide for cooperative enforcement and regulatory activities.”

This the opening, Taylor argues, that the Obama administration should take to negotiate with the states that are legalizing marijuana use – a process that would lead them toward careful regulation and standards and away from the threat of irrational federal prosecutions.

In a more sensible world, Congress would be rewriting the Controlled Substances Act to reclassify marijuana as the relatively low-risk drug it clearly is. But who’d expect this Congress to do anything so rational?

That leaves states to regulate carefully on their own. And it leaves a clear challenge for Obama. Here’s a president bold enough to jump ahead of Congress on issues ranging from gay marriage to amnesty for Dream Act immigrants. So now, why not smooth the way to marijuana reform when states choose it? And especially when polls show legalization is favored overwhelmingly by youth – the Americans whose early and intense support was indispensable to his becoming president at all?

Neal Peirce’s e-mail is

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  1. Stanley Rapoport
    Posted April 27, 2013 at 7:14 am | Permalink

    Dear Neil,
    Perhaps you could present a more cogent discussion of marijuana legalization for adults. This would reduce incarceration rates, increase tax revenue, reduce costs for interdiction, destigmatize its proven medical use in intractable nausea, and remove a major source of income to drug cartels below the border. In terms of health costs and negative social consequences, alcohol abuse is by for more destructive in our society, and reduces life expectancy by about 10 years.

  2. Don DeSalvo
    Posted April 28, 2013 at 3:54 pm | Permalink

    Hi Neal: Hmmmm. I get an image of Nero with his violin playing away as he senses a wiff of smoke from a smoldering Rome. Like Nero, we have become caught up in the muse and music of the President, the Democratic and Rebublican party’s brand of mesmerism. Our collective sense of smell is thus comprimised. The burning goes unregistered. This brand of mesmerism, including (1) the enjoyment of a burn rate of nearly $2 Billion per day on wars and social programs (all borrowed money) plus the Fed injecting $40 Billion per month into an already mega diluted Dollar (borrowed); (2) the President and Congress tacitly supporting the bad boys on Wall Street who have masterfully engineered another feeding frenzy during which they will once again notoriously and without fear, skim the rest of the cream off the top of what’s left of the remaining wealth of the country’s retirement plans; (3) the Nation’s continued harboring of 10 to 15 million undocumented folks who, because of our tepid growth, do not enjoy the jobs they journeyed to this country (at great personal risk) to find. Rather these folks are now becoming comfortable with the largesse of the State and Federal Governments (as are our citizens) without the burden of tax payment or responsibility of law; and finally, (4) the lack of a real expanding job base and attendent tax base, to take us out of our ever weakening recession. Rather than attempt to resolve these threshhold issues, our Congress, our Supreme Court and our Executive Branch, with intential slight of hand, mesmerise us into ignoring these crucial and devestating issues; rather, our Governmet argues the wisdom of legalizing Marjijuana (which will add yet another layer of problems to an already overloaded financially stressed legal system), abortion rights and distribution of free birth control to mention just a few of these “talking points.” All worthy discussions. Worthy if we weren’t in such a dire economic condition. Our priority should be good paying jobs, good transportation, upgraded infrastructure, good schools and finally, thoughtful and responsible citizens who feel lucky to live in the US. If the country is not able to resolve these priority issues, we will soon be forced to discuss little more than how to feed, clothe, shelter and protect ourselves and our families. The rest of the world is sitting on its honches, just waiting to see how we do.