Federal Crackdown on Legalized Pot Would Backfire

Federal Crackdown on Legalized Pot Would Backfire

By Stuart Taylor Jr. - April 24, 2013

Recent statements by Attorney General Eric Holder and by drug czar Gil Kerlikowske may signal an impending crackdown on the experiments with partial legalization of recreational marijuana for which solid majorities of the Colorado and Washington State electorates voted last November.

“When it comes to these marijuana initiatives, I think among the kinds of things we will have to consider is the impact on children,” Holder told a House appropriations subcommittee. “We are certainly going to enforce federal law.”

At a National Press Club luncheon, Kerlikowske asserted that "neither a state nor the executive branch can nullify" federal anti-marijuana laws, adding that "using marijuana has public health consequences."

But the impact on children, and the public health consequences, are likely to be bad if the Obama administration cracks down on the hundreds of marijuana businesses that Colorado and Washington are preparing to license, regulate, and tax.

Such action would likely backfire -- warping both federal and state drug policy for years to come -- by aggravating the harm to public health, especially to kids, and the leakage of marijuana across state lines that the administration and other opponents of legalization want to prevent.

How would a crackdown backfire? By producing -- immediately in Colorado, and eventually in other states -- an atomized, anarchic, state-legalized but unregulated marijuana market that federal drug enforcers lack the manpower to contain and the legal power to force the states to contain.

Consider how a federal effort to abort the state experiment would unfold in Colorado, where the voters (unlike those in Washington) chose to create both a state-regulated marijuana industry and another, largely unregulated, one.

In the state-regulated sector, marijuana growers and distributors must obtain licenses to do business, sort of like liquor licenses. They will pay many millions of dollars in state and local taxes and licensing fees. Colorado clearly covets the new sources of revenue, but a significant portion of that money will be spent on regulatory efforts that bolster the federal interest in discouraging exports across state lines while seeking to minimize sales outside the state-regulated system, sales to minors, unduly large quantities, impure and dangerously potent products, organized crime involvement, and other abuses.

The unregulated sector, which is already operating, comes from the initiative's repeal of all penalties for growing up to six marijuana plants at a time at home (yielding roughly 1,000 marijuana doses per plant per year) and giving away up to an ounce (yielding roughly 200 marijuana doses) to anyone else.

If the administration exercises its broad prosecutorial discretion to allow the state-regulated market to operate without federal interference, that's where most users will get their marijuana. Market forces will keep the grow-your-own-and-share market small.

But if the administration puts Colorado's state-regulated marijuana sector out of business -- as it probably could do, since that sector would consist of a limited number of easily identified operators -- the grow-your-own-and-share market could well expand to huge proportions.

And there is no federal solution in sight to the public-health dangers posed by this grow-your-own-and-share market, or to its obvious potential for leaking into the criminal black market and across state lines.

In a nation with 4,400 DEA agents -- one for every 3,000 regular marijuana users and one for every 170 state and local cops -- it would be impossible for the federal government, acting on its own, to police more than a random handful of marijuana growers, or stop the considerable number who would sell some of it.

In addition, under the Supreme Court's 10th Amendment precedents, the federal government has no legal power either to prevent states from simply repealing their own marijuana penalties or to require states to help enforce federal law.

The states can, in other words, simply stand aside and let the feds wage war alone on marijuana -- which they lack the manpower to do.

So the result of an administration attack on state-legalized marijuana in Colorado would be to let millions of unregulated, unlicensed, untaxed, home-grown marijuana plants bloom, without state controls on quality, purity, or potency.

Importantly, such an attack would also spur leaders of the well-heeled marijuana movement to push for legalization without regulation both in Washington state (which currently bans all marijuana growing and distribution outside the regulated system), and in the other states (including Alaska and California) that appear likely to adopt partial legalization in the coming years.

These states might then emulate Colorado’s grow-your-own provisions, or simply repeal state penalties for small-scale marijuana cultivation and distribution as well as possession. (Federal law enforcers almost never go after mere users of marijuana.)

So if Holder and Obama want to do what's best to protect kids, and public health, and to prevent exports across state lines, the path of federal-state cooperation is more promising than a doomed effort to crush the Colorado and Washington experiments. After all, the states want to protect public health and kids too. That's what the regulations will be for.

And, as it happens, the federal Controlled Substances Act contains a statutory directive that the attorney general "shall cooperate" with the states on drugs including marijuana. It also authorizes him “to enter into contractual agreements … to provide for cooperative enforcement and regulatory activities.”

Given that leverage, federal-state agreements could be used to bind the states to detailed commitments to protect federal interests as well as to specify what state regulators and state-licensed marijuana businesses can and cannot safely do.

With almost 60 percent of the public saying that the administration should not enforce marijuana laws in states that permit its use (and with 52 percent favoring legalization), the time is ripe politically for the federal government to work with Colorado and Washington to prevent state-legalized marijuana from metastasizing into an uncontrollable free-for-all.

Meanwhile, the two states have been working on their new regulations for over five months with no guidance at all from Washington, D.C. The time for presidential leadership on marijuana is now. 

Stuart Taylor, Jr., a Washington writer, is a non-resident senior fellow at the Brookings Institution, which published a longer version of this article on its website.

Stuart Taylor Jr.

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