End marijuana prohibition
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?This is from Lake Champlain Weekly's Common Sense column, March 15th, 2023.
The sale, possession, and use of marijuana is legal for medical purposes in 37 US states. It is legal for recreational use in 21 of them. At least, that’s the situation under state law. Sale, possession, and use are all illegal under federal law throughout the US. In theory, all the businesses licensed to sell marijuana in New York are breaking federal law. Since they are not breaking state law and the federal government lacks the resources and the will to prosecute all of them, then they can operate with impunity.
The situation is, however, unsatisfactory. The federal government could decide to prosecute these businesses. It is up to federal prosecutors and to law enforcement agencies such as the DEA and FBI. This flies in the face of the founding principle that the US is a nation ruled by laws, not by men. Millions of people live under the threat of prosecutorial discretion. An individual prosecutor can decide to bring actions.
This is a dangerous situation. A prosecutor could decide to prosecute some people based on their political persuasion, or their race, or simply from a personal vendetta. That would not be illegal, since the prosecutor would simply be enforcing a duly enacted federal law.
The Supreme Court has held that banning narcotics is within the power of Congress. This has not always been conventional wisdom. Note, it took a Constitutional Amendment (since repealed) for Congress to have the power to ban alcohol. But Supreme Court precedent since the 1930s has determined that Congress can regulate under the interstate commerce clause activities which are neither interstate nor commercial.
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Of course, people now buy marijuana and cannabis products online. They order them for delivery across state lines. This is something that Congress certainly has the power to ban and has done so, but the law is rarely enforced. If Congress wished, it could effectively invalidate state laws which prohibit the sale of marijuana by expressly saying that sales across state lines are legal.
The present situation, where millions of people are dependent – some for their livelihoods or their medical needs – on federal authorities not bothering to enforce federal laws is absurd. If Congress is unwilling to resource the enforcement of the law it should repeal it as a matter of principle.
Since the law is a foolish one, it should repeal it anyway. This leaves two possible outcomes. Either Congress could ban interstate sales, meaning those states that wish to maintain a ban could do so, or it could legalize such sales meaning any state level bans would be impossible to enforce. Either situation is completely in line with notions of federalism and the rule of law.
The latter choice, under which the products are freely traded throughout the US is the better policy outcome. Dangers from marijuana are minimal. Legal drugs, including alcohol and tobacco pose greater risks. The illegal trade itself empowers criminal gangs and corrupts law enforcement. Countries such as Portugal, which have legalized drugs across the board, have greatly cut both addiction and gang violence. It is long past time to act on this.
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Quentin Langley lives in New York and teaches at Fordham University and Manhattan College. His book, Business and the Culture of Ethics was published in September 2020
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