Bummer

For years I have been pointing out that our major political parties are in the process of swapping places and nowhere is that more evident than in states rights. As the editors of the Wall Street Journal observe the states that were formerly lauding incorporation and condemning states rights and nullification are now asserting states rights and nullification and rejecting incorporation with equal vehemency:

Attorney General Jeff Sessions is being lambasted as the uncool parent in Washington, and maybe the universe, for rescinding an Obama Administration directive that decriminalized marijuana in states that have legalized the drug. But even if you’re a legalizer, you should give the AG some credit for forcing a debate on the rule of law that Congress should settle.

The problem is the conflict between state and federal statutes. Eight states have legalized pot for recreational use, and more than half for medical purposes. But under the federal Controlled Substances Act of 1970, cannabis is an illegal schedule I drug along with heroin and LSD. Individuals found with even small amounts can go to prison, and making or distributing large quantities carry long sentences and stiff fines.

President Obama tried to dodge this conflict, as he so often did, with an executive diktat. After Colorado and Washington State voted to legalize pot, his Justice Department in 2013 instructed U.S. Attorneys to refrain from prosecuting marijuana offenses in states where the drug is legal. This let him side with the legalizers without taking responsibility for it.

Justice’s guidance expected states to “implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests.” Its memo also ordered attorneys to prioritize preventing distribution to minors, diversion to other states or using marijuana as a cover for trafficking in other drugs.

In practice, this has meant few federal pot prosecutions in those states despite evidence of all of those problems and more. Colorado has the highest rate of first-time youth marijuana use in the country. Alaska and Oregon ranked third and seventh after they legalized in 2014. According to Smart Approaches to Marijuana, cannabis use among young people has increased by 65% in Colorado since legalization.

Drug traffickers have exploited the aegis of state laws, which has let the black market flourish. A police report in Oregon revealed that 70% of marijuana sales in 2016 occurred on the black market, and up to 900 tons more cannabis is produced than consumed in the state. Mexican cartels have moved into Alaska.

The Rocky Mountain High Intensity Drug Trafficking Area reported a more than 700% increase in postal marijuana seizures following legalization. The crime rate in Colorado has increased 11 times faster than in other large cities since legalization. A National Institutes of Health study has linked the density of marijuana dispensaries to increased property crime.

Many pot sellers evade state regulation because of hefty compliance costs and taxes. Law enforcement in California reports that only a fraction of pot growers have applied for permits. Drugged-driving fatalities doubled in Washington following legalization. Positive drug tests for marijuana in 2016 increased at more than double the rate in Colorado and Washington as nationwide.

We report all this because the legalization debate has been dominated by a haze of cultural sentiment largely devoid of facts, and the promises by advocates about reduced enforcement costs and crime haven’t materialized. Meanwhile, the failure to enforce federal law, and letting states ignore it, erodes confidence in the law and lets Congress duck a debate on legalization.

Federal law trumps state law under the Constitution’s Supremacy Clause except on core state powers, and the Supreme Court ruled in Gonzales v. Raich (2005) that the feds can prosecute marijuana offenses under the Commerce Clause. We disagreed with Raich, but it is the law and states can’t nullify federal laws.

See also immigration law. I do not believe that one can coherently make an argument for or against states rights on instrumentalist grounds so please do not tell me about the benignity of your motives. What matters is what happens and the benefits of marijuana legalization are presently being exaggerated as much as an ancestor’s virtue. In the past I’ve written tolerantly about marijuana legalization. That’s something that needs to be done at the federal level. Attempts to finesse the situation as the Obama Administration did will create more problems than they solve.