National Review Online
Monday, December 07, 2020
We generally favor deferring to tradition, but the fact
that Republicans have been wrong on marijuana for a very long time is no reason
for them to keep being wrong.
And Republicans have it very wrong on marijuana — or all
but five of them do: The
House has passed a marijuana-decriminalization bill largely along partisan
lines, with only five Republicans voting in support of the measure, while only
six Democrats opposed it. The bill is expected to die in Mitch McConnell’s
Senate.
It shouldn’t.
The current federal position on marijuana is the wrong
one, both as a matter of federalist principle and as a matter of intelligent
policy.
With various marijuana-liberalization programs working
their way through the states (Oregon has decriminalized personal possession of
most other drugs as well), there now exists a patchwork of marijuana laws
across the country. Three cheers for the patchwork: This is a large, complex,
and diverse country, and sometimes a political patchwork is the right
alternative to enforced national homogeneity. The states have decided to go
their own separate ways on this issue, Americans already have shown themselves
perfectly capable of navigating a world in which Colorado and Florida have different
marijuana laws, and federal law should recognize that reality.
Most ordinary crime is policed at the state level, and
the interstate-commerce rationale for federal marijuana prohibition has always
been weak. While there will remain a federal role when it comes to such
considerations as international smuggling and interstate trade, the question of
the sale and consumption of marijuana within states is a matter for the
states. Republicans who say they believe in federalism should consider acting
like it. The same vague interstate-commerce argument that empowers federal
marijuana prohibition necessarily empowers federal mischief of many other kinds.
Current federal law puts many marijuana sellers and
buyers in the position of being federal outlaws while transacting business that
is, as a matter of state law, entirely legal. The Obama administration
attempted to finesse this conundrum with the policy spelled out in the
so-called Cole memo, in which the federal government committed itself to
ignoring its own laws in states in which marijuana had been legalized; the
Trump administration rescinded that policy; liberalizers have expressed some
hope that the Biden administration might reinstate it. That kind of chaotic
adhocracy is typical of our contemporary political dysfunction, and Congress
should settle this as a matter of statute rather than having policy swing back
and forth via administrative fiat every time the White House changes hands. It
is the job of the lawmakers to make law, and Congress ought to do its job
rather than punting to whomever happens to be in the top job at the Justice
Department.
Drug abuse and drug addiction impose serious personal and
social costs, as indeed does a great deal of casual drug use. We have seen this
not only in the case of prohibited drugs such as marijuana but also in the case
of generally legal drugs such as alcohol and some pain medications. The
question is not whether we are in favor of marijuana use or against it, but
rather is whether current policy is genuinely in the public interest. It isn’t.
Marijuana prohibition creates a vastly profitable criminal enterprise that
causes far more damage, including loss of life — at home and abroad — than
marijuana consumption itself does or would even if use became more widespread.
Prohibition makes petty criminals out of most Americans — the majority of
Americans smoke marijuana at some point in life — and in the process acclimates
both individuals and institutions to low-grade criminality. It results in
needless incarceration and in criminal convictions that can severely
circumscribe a person’s opportunities for advancement and prosperity. It
creates opportunities for selective enforcement and prosecution. The so-called
war on drugs has contributed mightily to the militarization of many local
police forces, to the normalization of invasive domestic surveillance, and to
heavy-handedness in policing. That is a high price to pay for a policy that is
— this is worth remembering — almost entirely ineffective in preventing the
widespread use of marijuana and the commerce attached to it.
The recent House bill is imperfect. Removing marijuana
from the list of federally controlled substances is a good policy, and vacating
the convictions of certain low-level federal drug offenders is the right
policy, too, albeit one that should be implemented with caution. But this being
the United States — and this being a Democratic bill — there is an excise tax
attached, which is the wrong policy in that it would in one sense expand the
federal footprint in the marijuana trade rather than reduce it. Those who cry,
“Legalize it and tax it!” have it half right, but only half. The bill is also larded
up with patronage spending in the form of small-business and community-group
grants that would distribute those federal marijuana-tax funds to political
clients. Our national experience with the role of state and local governments
in casino gambling should have taught us that there is a world of difference
between sensible reform and making government a revenue-seeking partner in a
pestilential business.
As a matter of pure political calculation, Republicans
might note that marijuana reform is very popular among constituencies they need
to court, and that marijuana initiatives did very well on Election Day in such
conservative states as Montana and South Dakota. In fact, every single
marijuana-liberalization proposal that was on the ballot in November passed,
from New Jersey to Mississippi.
The all-encompassing war on
drugs has been a lost cause for decades, and Republican voters know it —
Republican elected officials should admit as much, too.
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