The Right Opinion

Legal Pot Could Be Contagious

Colorado and Washington Show Us the Way Out of the Senseless War on Marijuana

By Jacob Sullum · Nov. 14, 2012

Shortly before the House of Representatives approved a federal ban on marijuana in 1937, the Republican minority leader, Bertrand Snell of New York, confessed, “I do not know anything about the bill.” The Democratic majority leader, Sam Rayburn of Texas, educated him. “It has something to do with something that is called marihuana,” Rayburn said. “I believe it is a narcotic of some kind.”

Seventy-five years, millions of arrests and billions of dollars later, we are still living with the consequences of that ignorant, ill-considered decision, which nationalized a policy that punishes peaceful people and squanders taxpayer money in a blind vendetta against a plant. Last week, voters in Colorado and Washington opted out of this crazy cannabicidal crusade by approving ballot initiatives that will set up experiments from which the rest of the country can learn – assuming the federal government lets them run.

Both initiatives abolish penalties for adults 21 or older who possess up to an ounce of marijuana, and for state-licensed growers and sellers who follow regulations that should be adopted during the next year or so. Pot prohibitionists such as Asa Hutchinson, former head of the Drug Enforcement Administration (DEA), argue that allowing marijuana sales violates the Controlled Substances Act and therefore the Constitution, which makes valid acts of Congress “the supreme law of the land.”

But the Supremacy Clause applies only to laws that Congress has the authority to pass, and the ban on marijuana has never had a solid constitutional basis. If alcohol prohibition required a constitutional amendment, how could Congress, less than two decades later, enact marijuana prohibition by statute?

The initial pretext was the same one the Supreme Court used this year to uphold the federal mandate requiring Americans to buy government-approved health insurance: The law, dubbed the Marihuana Tax Act, was dressed up as a revenue measure. By the time the ban was incorporated into the Controlled Substances Act in 1970, Congress had a new excuse: It was exercising its authority to “regulate commerce … among the several states.”

Seven years ago, the Supreme Court concluded, preposterously, that Congress is regulating interstate commerce when it authorizes the arrest of a cancer patient medicinally using homegrown marijuana in compliance with state law. But states indisputably remain free to say what is and is not a crime under their own laws, and that is what Colorado and Washington are doing.

Whether or not it tries to block marijuana legalization in the courts, the Obama administration can raid state-legal pot shops, as it has done with medical marijuana dispensaries. It can use asset forfeiture as an intimidation tactic against landlords and threaten banks that accept deposits from pot businesses with money laundering charges. The Internal Revenue Service can make life difficult for pot sellers by disallowing their business expenses.

The one thing federal drug warriors cannot do, judging from their track record even when they have the full cooperation of state and local law enforcement agencies, is suppress the business entirely, let alone arrest a significant percentage of people who grow pot for themselves and their friends (as Colorado's initiative allows). According to the FBI, there were 758,000 marijuana arrests nationwide last year, the vast majority for possession. The DEA was responsible for about 1 percent of them.

Given their limited resources, the feds may yet see the wisdom, if not the constitutional imperative, of letting Colorado and Washington go their own way. Last year a Gallup poll put national support for marijuana legalization at 50 percent – the highest level ever recorded. Brian Vicente, co-director of the campaign for Colorado's legalization initiative, hopes last week's historic votes “will send a message to the federal government that they need to back off entirely and let states engage in the responsible regulation of marijuana.”

Hard-line drug warriors like Hutchinson are keen to prevent that from happening – not because they fear it will be disastrous but because they fear it won't be.



Anton D Rehling in Olympia, WA said:

It is very simple,the federal government has well defined and LIMITED powers as defined in the constitution. regulating the citizens of this country on what we can drink, smoke or eat is not one of them.

We are adults and our government has no legal standing to treat us like their children to guide and educate.

Wednesday, November 14, 2012 at 11:08 AM

Robinius in Broomfield, Colorado replied:

Good to know. We are adults and kids don't do pot. And even if they do it's not my problem. What about cocaine and heroine. Not my problem, either - and the government should stay out of people's decisions to hurt themselves. It's a free country, right? Free food, rent, cell phones, contraceptives. Why not free drugs next?

Wednesday, November 14, 2012 at 5:06 PM

richard ryan in Lamar,Missouri replied:

Anton, try telling that to Moochelle.

Wednesday, November 14, 2012 at 7:50 PM

billy396 in ohio replied:

This federal government will never allow this to stand. Does anyone actually think that Obozo and pals care one bit about the limits on their power? Wait and see. The DEA and other various federal government agencies will descend, en masse, on Washington and Colorado once they get good enough targets in their sights. They don't want Americans to get some crazy idea that they actually have personal rights or liberty of any real kind. Obozo stated in his first campaign that "his" DEA wouldn't be bothering medical marijuana sellers in California. He lied about that, as well. "His" DEA has stomped all over states' rights ever since his first day in office, and he will continue to do so. Yes, the federal government only has certain enumerated powers in our Constitution, but that document has been thoroughly ignored not only by this administration but also by federal courts and the Supreme Court.

Wednesday, November 14, 2012 at 8:07 PM

Robinius in Broomfield, Colorado said:

Responsible changes to the constitution would require be a 66% vote in favor, not 54%. Now we get to pay for a new bunch of government bureaucrats to keep track of the sales and collect taxes. And why limit the potheads to 1 ounce? If it's safe why can't I have a trunk full? There's no limit on how much alcohol I can possess.
Next: Cocaine legalization, followed by heroine. Small steps.

Wednesday, November 14, 2012 at 4:58 PM

richard ryan in Lamar,Missouri said:

Hutchinson`s referral to the supreme law of the land is rediculous on it`s face. Since when do the Supreme Court, The President, or members of our Congress pay any attention to the Constitution, which by the way, is described as the supreme law of the land?

Wednesday, November 14, 2012 at 7:36 PM

Kevin from Arkansas in USA said:

"If alcohol prohibition required a constitutional amendment, how could Congress, less than two decades later, enact marijuana prohibition by statute?"

Way back then the Constitution and limited Federal powers still meant something. It was recognized that the Federal government has no constitutional authority to regulate alcohol thus a constitutional amendment was needed. Now ... well not so much - it's just something to ignore. As Obama has said:

"I have advised Congress that I will not construe these provisions as preventing me from fulfilling my constitutional responsibility to recommend to the Congress’s consideration such measures as I shall judge necessary and expedient.

In other words: “Congress may pass laws, but I decide which of its laws are constitutional and which I can simply choose to ignore.”

Of course, the Constitution doesn’t actually give the president this power, but Obama won’t allow a little thing like the U.S. Constitution get in his way

Read more:

Wednesday, November 14, 2012 at 10:53 PM