By Andrew C. McCarthy
Saturday, November 28, 2020
With controversy over the 2020 election still stirring, a
notable development has escaped much attention. Not only has the national trend
toward legalizing marijuana continued, a Rubicon has been crossed: Oregon
adopted a ballot initiative that decriminalizes the possession of hard
narcotics, including heroin, cocaine, and methamphetamines.
No, it is not a green-light for drug trafficking —
not yet at least. The ballot initiative approved in the Beaver State aims to
strike the criminal penalties for the possession of personal-use amounts of
illegal narcotics, generally a misdemeanor, not possession of greater amounts,
which indicates an intent to engage in felony distribution. Selling or
otherwise transmitting drugs is still a state crime.
And all of it — possession, medical use,
recreational use, and distribution — still violates the federal criminal law,
which is the main issue I’ll come to, in due course.
The Trend against
Criminal Enforcement
Despite that complication, the trajectory of things is
not in doubt. As
Vox reports, Oregon voters also legalized the use of psilocybin, the
psychoactive compound found in so-called magic mushrooms. That dispensation is
only for supervised therapeutic purposes . . . at least for the time being.
Moreover, five states — Arizona, Mississippi, Montana, New Jersey, and South
Dakota — liberalized their marijuana laws, either legalizing it for medical
purposes (which is always the first step), or expanding an already existing
medical-use dispensation so that it now embraces recreational use, and larger
possession amounts that are fitting for a legal commodity.
Once you go down this path, there are knotty knock-on
effects: To what extent are employers required to tolerate drug possession or
use? Must workplaces and other facilities provide medical-use space? Must they
abide recreational use? If it’s legal but they oppose it, may employers inquire
about drug use in the hiring process? Refuse to hire an applicant over it? Fire
an employee over it? States are fitfully tackling these questions, too. It’s a
Brave New World.
To mix in another metaphor, it’s also a Pandora’s Box.
Many will prefer to don blinders and see drug use as strictly a personal
liberty issue. Other analysts, prudently, are determined to force our eyes wide
open. AEI’s Naomi Schaefer Riley and Hudson’s John Walters (the latter was
President George W. Bush’s drug czar) published a Wall Street Journal
essay last week, outlining in remorseless detail the wages of parental drug
abuse on the lives of young children.
I don’t pretend this is simple. Many of the same claims
can be made about alcohol, which no one sensible is looking to prohibit (that
having worked out so well the last time). It’s reasonable to contend that using
the criminal-justice system to address all this dysfunction and suffering only
makes matters worse — with the added banes of gang crime, gun crime, ruined
neighborhoods, and cycles of addiction and incarceration. Neither can we ignore,
however, the stubborn facts that the law is the signal of what a society is
prepared to tolerate, and that legalizing an addictive activity guarantees that
there will be more of it, along with its inevitable train of damages.
We will have to wrestle for years to come with these and
other policy questions. For now, I want to focus more on the implications for
national cohesion.
Federalism and
Contemporary Law Enforcement
To repeat, states that ease drug prohibitions do so in
the teeth of federal law, specifically, the Controlled Substances Act (CSA) —
an oft-amended relic of 1970 that still refers to derivatives of the cannabis
plant as “marihuana.” CSA statutes continue to criminalize drug possession and
use.
Yet, as of May 2020, all but three states have legalized
the use of cannabis for medical purposes, according to the Congressional
Research Service. In addition, with this year’s ballot initiatives, the number
of states (plus the District of Columbia) that have removed criminal penalties
on the recreational use of marijuana is nearing 20. Oregon is so far alone in
easing the criminalization of other drugs, but it is only a matter of time
before others join in — the states of Washington and California are candidates
in the short term.
The Framers’ structure of governance provides for the
federalist sharing of sovereignty. The states are supposed to be sovereign in
the regulation of their internal affairs, particularly law enforcement. Federal
power was to be reserved for national issues. Over the last century, the
concept of what constitutes a “national issue” has expanded geometrically.
That puts great strain on the Framers’ design. Under
Article VI, “This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof . . . shall be the supreme Law of the Land.” If
the federal government has properly enacted law that intrudes on state affairs,
even law based on dubious policy premises, the states may not enact
contradictory law. On the other hand, federal law is not properly enacted if it
purports to regulate intrastate activity of the kind our system is meant to
leave to state police power.
Competing drug laws bring the tensions into sharp relief.
There was precious little federal law enforcement at the
time of the Founding. Treason is the only criminal offense defined in the
Constitution, but Article I expressly anticipated that Congress would define
and punish crimes of national and international consequence, such as piracy,
felonies committed on the high seas, and offenses against the law of nations.
It was to be expected, moreover, that federal criminal law would be enacted to
cover areas of paramount federal interests, such as assaults on U.S. government
officials. The Constitution also laid the groundwork for Congress’s creation of
a multi-layered system of lower federal courts. All that said, the Framers
could not have foreseen the metastatic growth of federal criminal law and its
vast accompanying enforcement infrastructure, including the Justice Department
(not created until 1870) and its component agencies.
Why Federal Drug
Enforcement?
Much of this law-enforcement expansion, in conjunction
with Washington’s more-intrusive role in national life generally, has been
driven by the elasticity of governmental and judicial interpretations of
Congress’s Article I power to regulate interstate and foreign commerce. This is
the main source of constitutional legitimacy for federal drug enforcement.
The idea is that as the world has gotten smaller and
economic life more integrated and complex, there is a greater need for federal
regulation. While there is a lot to challenge in that premise, it is undeniably
true that aspects of narcotics trafficking present a strong case for
intervention by Washington. Hard drugs are lethally dangerous, and thus their
manufacture and distribution should be rigorously regulated, including by
criminal penalties. Many illegal drugs and their precursors do not originate in
the United States. Importation and distribution networks are international and
controlled by criminal syndicates. Domestically, trafficking is dominated by
organized-crime groups with coast-to-coast wingspans.
As a practical matter, this macro level of importation
and distribution could not be left to state enforcement. Unlike the Justice
Department (with its FBI and DEA components, as well as its task forces that
deputize state police to exercise federal enforcement authority), the
law-enforcement arms of the states are not designed to investigate and
prosecute criminal conduct that crosses multi-state and national boundaries,
overwhelming their jurisdictional and financial limitations.
Nevertheless, drug use and distribution at the
dealer-user level is strictly intrastate activity. In fact, with respect
to marijuana, the entire sequence of activity — production, sale, and
consumption — now commonly happens without anyone needing to cross a state or
national boundary.
The tension over marijuana has been building for decades.
The legalization camp unites — for different reasons — a motley combination of
progressives, libertarians, and states-rights conservatives. Arrayed on the
other side are other conservatives and centrist liberals, who worry about teen
drug use, marijuana as a gateway to addictive drugs, and the alarming spikes in
dependence and overdose deaths attributable to opioid abuse in recent years —
as well as the related concerns about public health and orderly society ably
raised by Ms. Riley and Mr. Walters.
Fraying Federal
Compromise on Marijuana
In federalism terms, there has been something of an
uneasy truce since 2014. At that point, Congress started placing appropriation
riders in budget bills, denying public funding to Justice Department
initiatives that could impede state efforts to legalize medical
marijuana. On that medical use, there is a growing national consensus — even
grudging agreement among naysayers who see the push for medical marijuana as
mostly a pretext to enable recreational marijuana.
That, however, is where the consensus breaks down.
Congressional appropriations reflect that fact: Still confined to medical use,
the riders have not kept up with the inexorable progression to recreational
use, the lawful possession of larger quantities (which blur the line between
users and dealers), and, now, the decriminalization of hard drugs.
Potential conflicts have been mitigated by the doctrine
of prosecutorial discretion. The states and the federal government have
concurrent jurisdiction over drug crimes, and it has been a practice of law
enforcement since I started as a federal prosecutor in the 1980s for the Feds
to leave the vast majority of marijuana crimes and drug-use crimes to state
enforcement, focusing instead on conspiracies to import and distribute hard
drugs. But there was always a caveat to this exercise of prosecutorial
discretion: Dormant though it was, the Feds retained their authority to
investigate and prosecute the lesser narcotics offenses.
During the Obama administration (which made extravagant
use of executive discretion not to enforce laws in many areas), the Justice
Department issued guidance that prosecutors should assume a substantially
hands-off approach to activities related to medical marijuana. The Trump
Justice Department rescinded that guidance, but with the proviso that, in
exercising their discretion, prosecutors should be mindful of not only laws but
“appropriations.” That, plainly, was a nod to Congress’s de facto safe harbor
for medical marijuana activities. Consequently, the Congressional Research
Service observes, marijuana prosecutions dropped in 2018 and 2019 even though
the total number of people charged with federal drug crimes increased.
Again, the federal indulgence of states’ rights to make
their own drug laws has been strictly limited to medical marijuana, not
recreational use. And even that safe harbor is narrow, covering possession and use
of marijuana for medical purposes, but not potential crimes and collateral
consequences derived from the establishment of quasi-legal medical marijuana
markets — e.g., money laundering, prohibition of gun possession by unlawful
drug users, and unfavorable tax, bankruptcy, and immigration consequences.
We have limped along in this ambiguity for a long time.
Perhaps if it were limited to marijuana, we could continue this way, at least
for the short term. But Oregon’s decriminalization of hard drug use changes the
dynamic. It necessarily reduces the perception that felony drug distribution is
a serious crime — already, we are hearing that users at this level are often
dealers, it is part of the cycle of addiction, incarceration is never the
answer, and so on. The Feds were not prosecuting many marijuana offenses, so a
mostly blind eye to the flouting of congressional law could be rationalized;
but that won’t do for hard drugs.
State Nullification of
Federal Law — a Short History
It is worth remembering that the Civil War was nearly
triggered 30 years before it started by the great nullification crisis. The
conflict involved two very different visions of federalism and a sense of
resentment in the South, with its cotton- and tobacco-export economy, that Washington
was putting its thumb on the scale in favor of the North’s fledgling industrial
base.
For South Carolina, the last straws were the so-called
Tariff of Abominations in 1828 and the somewhat less harmful Tariff Act of
1832. In A History of the American People, Paul Johnson recounts that
the extraordinarily high U.S. exactions hit South Carolina’s foreign customers
hard, particularly Britain. Originally among the richest states, South Carolina
feared becoming one of the poorest, and was losing population by the tens of
thousands. In 1832, at a state constitutional convention in which talk of secession
was in the air, the Palmetto State adopted the Ordinance of Nullification. It
decried national tariff legislation as unconstitutional, forbade collection of
duties in the state, and even provided that if federal authorities retaliated
by seizing property, the owner was entitled to recover twice its value in
court.
Though a Carolinian by birth, Andrew Jackson was a
Unionist at heart. In 1833, he was also a president just reelected by a
landslide, and thus at the height of his powers. In response, he prepared to
put down South Carolina’s nullification by force. The power to annul a law of
the United States, he wrote, was
incompatible with the existence
of the Union, contradicted expressly by the letter of the Constitution,
unauthorized by its spirit, inconsistent with every principle on which it was
founded, and destructive of the great object for which it was formed.”
[Jackson’s italics.]
Near Charleston Harbor, Jackson reinforced army posts and
dispatched naval vessels, while seeking Congress’s authorization to use force.
South Carolina backed down, rescinding its ordinance and ceasing secession
proposals. Notably, this was largely due to some face-saving compromise
legislation, sponsored by Senator Henry Clay of Kentucky, which reduced tariffs
over the next decade.
Jackson was right that it is incompatible with our
constitutional order for states to attempt to nullify properly enacted federal
law by adopting their own contradictory laws. To do so imperils our national
cohesion. If allowed to stand, defiance becomes a trend — as we see with the
plethora of blue states, cities, and counties that regard themselves as
“sanctuaries” from federal immigration laws.
Yet nullification disputes can illustrate the
foolhardiness of federal laws and overreach by Washington. South Carolina bent
to Jackson, but not without tariff relief. At the end of the 18th century, to
take another famous example, Jefferson and Madison backed state resolutions
that claimed a right to nullify Congress’s Alien and Sedition Acts. In the end,
the sedition provisions in particular were rejected in 1800 by the public: The
Federalists were routed, Jefferson was elected president, and the offensive
enforcement measures were undone.
Immigration was originally a state-enforcement issue. Narcotics
regulation is patently a state-enforcement issue, at least at the all-important
street level. Yet the federal government has chosen to occupy these fields, and
the courts have recognized its supremacy. But it has always been an ambivalent
supremacy. The Feds have neither the resources nor the will to police every
drug crime or every minor immigration infraction.
It is beyond time to revisit both federal law enforcement
at the intrastate level, and state liberalization policies. If the federal government
is not going to enforce laws regarding marijuana distribution and drug use, it
should formally cede that authority to the state. It should stick to what it is
willing and able to address: felony narcotics importation and distribution at
the macro level. That said, if some states are determined to liberalize
marijuana laws and even laws prohibiting the use of hard drugs, they must be
made to bear the economic and other downside consequences of these policies.
Such states should not be permitted to socialize the costs, expecting the rest
of the country to underwrite their dubious choices.
Federalism is the great safety valve in our pluralistic
society. If the lines of responsibility need redrawing, then it is best done
before federal overreach and state defiance provoke a crisis. That time is now.
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