The Marijuana Reform We Need

By Kevin D. Williamson

Thursday, July 15, 2021

Senate majority leader Chuck Schumer (D., N.Y.) proposes to legalize marijuana at the federal level. He faces two main opponents: 1.) Republicans and 2.) Democrats.

Senator Schumer in his political dotage has embraced the “legalize it and tax it” approach to marijuana, which is precisely one half of a good idea. But that is a half a loaf worth having.

Forty-five of the 50 states permit marijuana use in some cases, and more than a third of Americans live in a jurisdiction in which recreational marijuana use is legal. But marijuana remains a controlled substance as a matter of federal law. Because of this, the federal government takes a confused approach to the question: For example, the federal government generally does not pursue criminal cases against marijuana dispensaries in states where they are legal, but it penalizes them when it comes to business taxes, banking and other federally regulated financial services, and eligibility for federal programs. Supreme Court justice Clarence Thomas, who possesses the one fully functional brain in Washington, is right to characterize this as a “contradictory and unstable state of affairs [that] strains basic principles of federalism.”

Senator Schumer’s bill would do that. Unfortunately, it would do much more, creating a federal regulatory regime and a federal tax regime with marijuana funds earmarked for “restorative justice,” meaning pet programs for Democratic clients in Democratic fiefs. It would also expunge “nonviolent” federal marijuana convictions, which may on balance be the right thing to do but which should be entered into with a clear understanding that few offenders big enough to go down on federal drug charges are involved in nonviolent enterprises — the interstate and international marijuana business is a violent business, and every truckload of marijuana that crosses the border has a grave associated with it somewhere.

Senator Schumer would do better to take Justice Thomas’s point on federalism and hand the issue to the states, reserving a federal role only for the international trade in cannabis and, if necessary, acting as a mediator between states with differing laws. It would be best if an ounce of marijuana grown in California, sold in California, and consumed in California intersected federal law at no point except as business income.

(And then maybe some of you potheads would join me in working to get rid of the corporate income tax.)

Even if Congress levies a special tax on marijuana, Washington should be modest in its revenue expectations: California realized barely $1 billion in marijuana-related tax revenue in 2020. No one should look to marijuana as a substantial fiscal boon. Uncle Stupid could save us a few billion in enforcement costs, thereby slightly increasing the unemployment rate in the D.C. metro area, but we can be confident that the Machine will figure out a way to suck up those funds.

With a few exceptions, congressional Republicans have opposed Schumer’s legalization efforts, partly because they oppose legalization and partly because they oppose Schumer. President Biden is more of an old-fashioned war-on-drugs man, one of his many similarities with Donald Trump, and he has pointedly declined to endorse Schumer’s proposal. Biden, who often seems to not quite know his own mind (and there is some good reason to think it is unknowable!), has said that he supports less ambitious reform, vaguely defined.

Given his son’s very public chemical shenanigans, President Biden surely is far from indifferent to questions of drug use, drug abuse, and drug addiction. And we should not be indifferent, either. Drug use imposes personal and social costs. This is true of marijuana, just as it is true of alcohol and cocaine, two drugs that are alike in being much more destructive than marijuana but utterly unalike in their treatment under the law. A society with a more permissive legal and moral atmosphere regarding drug use is probably going to see more drug use and more of the problems associated with drug use. This has been demonstrated even by the experience of the orderly and buttoned-down Dutch, who have just been scandalized by the shooting of journalist Peter R. de Vries, whose investigations irritated the bosses of the Netherlands’ drug-powered criminal underworld.

The argument for liberalizing drug laws isn’t that doing so would solve the drug problem. The argument is that the enforcement regime does more harm to our society than it prevents, filling the prisons even as it fills the coffers of the crime syndicates that secure outsized profits in the black market under prohibition. The states already have gone their own ways on this issue, and there is room for federalist diversity: There isn’t any reason that San Antonio has to do things the same way Denver does. (You can hear San Antonio cheering from here.) When it comes to marijuana everybody already sees this, and it is time for federal law to reflect the actual situation in the states. But the politics are against it.

Good luck, Chuck.