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December 10, 2020

Marijuana Decriminalization Is a Federalism Issue

Fifteen states have now legalized marijuana, and the feds should back off.

Republicans need to face reality on the issue of marijuana legalization: It’s happening. Not everywhere tomorrow and maybe not by 2022, but given the growing number of states that have voted to legalize it— now up to 15, and not just blue states — it’s a forgone conclusion.

However, the fact that marijuana is becoming more socially accepted across the country isn’t the primary reason Republicans should end their opposition to the recreational drug, at least at the federal level. The primary reason is federalism — meaning it should have remained an issue for the individual states.

Furthermore, there’s the glaring problem of how little good has been achieved by prohibiting the substance. This was the position of conservative stalwarts William F. Buckley and Milton Friedman, the latter of whom famously stated that the major basis for his “opposition to marijuana prohibition has not been how badly it’s worked.” Instead, Friedman said, “It has been primarily a moral reason: I don’t think the state has any more right to tell me what to put into my mouth than it has to tell me what can come out of my mouth.” Buckley similarly opined, “Even if one takes every reefer madness allegation of the prohibitionists at face value, marijuana prohibition has done far more harm to far more people than marijuana ever could.”

This past Friday, the House passed a bill decriminalizing marijuana, largely along party lines, with just five Republicans voting for it. Of course, being a Democrat bill, it’s far from ideal, as it would ironically increase the federal government’s involvement with marijuana via regulation and taxation even as it decriminalized the drug. Furthermore, the bill was purely a political stunt by Democrats who essentially prioritized marijuana legalization over seriously working toward a compromise with Senate Republicans on the stalled COVID relief bill.

Again, federalism is really at the heart of the marijuana issue. As former federal prosecutor Andrew McCarthy contends, “I see no room for ambivalence about either the erosion of federalism or nullification, the concept that states are at liberty to ignore or obstruct legitimate federal law. To my mind, it is not tolerable for states to legitimize conduct that the federal government, acting within its constitutional authority, has made illegal. But an exception must be made for circumstances in which the federal government’s constitutional authority is debatable and the regulatory interests of the states are superior. Such a situation exists when the feds criminalize activity that is essentially intrastate. The resulting tension is in sharp relief when Washington has no will to enforce the disputed federal laws but stubbornly keeps them on the books.”

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