Republicans Demand That the Feds Impose Pot Prohibition on States That Have Opted Out

Testifying
before the House Judiciary Committee yesterday, Attorney General
Eric Holder was grilled once again about his response to marijuana
legalization in Colorado and Washington. He correctly responded
that the Justice Department has “a vast amount of discretion” in
deciding how to enforce the Controlled Substances Act and argued
that his decision to focus on eight “federal enforcement
priorities” in states that have legalized marijuana for medical or
general use is “consistent with the aims of the statute.” Rep.
Jason Smith (R-Mo.) was not buying it. “Federal law takes
precedence” over state law, Smith
said. “The state of Colorado is undermining…federal law,
correct? Why do you fail to enforce the laws of the land?”

This is the position that many Republicans, despite their
supposed belief in federalism, have staked out with respect to the
crumbling of pot prohibition. They not only accept the fanciful
notion, which is no less absurd for having been
endorsed by the Supreme Court, that interstate commerce
includes marijuana that never crosses state lines, down to a plant
in a cancer patient’s yard or a bag of buds in her dresser drawer.
They also argue, as Smith does, that “state law conflicts with
federal law” if it does not punish everything that Congress decides
to treat as a crime. Hence the feds must step into the gap, raiding
and busting state-licensed marijuana growers and sellers. According
to Smith (and
Ted Cruz, among
others), Holder is obligated to crush the experiments in
Colorado and Washington.

Holder shares Smith’s assumptions about federal power, but he
argues that just because he has the legal authority to do something
does not mean it’s a good idea. He correctly notes that the Justice
Department has never prosecuted every violation of the Controlled
Substances Act. Not even close. Judging from
survey data, more than 31 million Americans violated the
federal ban on marijuana in 2012; 750,000 of them were arrested.
That’s less than 3 percent. The feds are
responsible for about 1 percent of marijuana arrests, meaning
they nab something like 0.02 percent of violators. Given its
limited resources, the Justice Department, under both Republican
and Democratic administrations, generally has eschewed small
marijuana cases. Since the feds are responsible for 1 percent of
marijuana arrests, what do gung-ho drug warriors like Smith think
the Justice Department should do in states that decide they no
longer want to be responsible for the other 99 percent? The
department simply does not have the resources to pick up that kind
of slack.

It’s true that U.S. attorneys could send threatening letters to
marijuana businesses and their landlords, which probably would be
pretty effective at shutting them down. But
then what? In Colorado, adults are allowed to grow up to six
plants at home and share the produce, one ounce at a time, with
friends, relatives, and acquaintances. Washington has hundreds of
quasi-legal businesses that sell marijuana, ostensibly for medical
use, which was authorized by a 1998 ballot initiative. The Justice
Department can close conspicuous storefronts without too much
effort, but the alternative sources will be much harder to control.
That thought probably has occurred to Holder, who waited 10 months
before settling on a less confrontational approach.

The
memo that Deputy Attorney General James Cole issued on August
29 makes no promises, but it suggests that prosecuting state-legal
cannabusinesses is not a good use of federal resources unless they
are contributing to one of the eight problems listed in the memo,
which include distribution to minors, sales of other drugs,
interstate smuggling, violence, and organized crime. Holder is
right that such prioritization is within his authority under the
Controlled Substances Act, and Smith is wrong to suggest otherwise.
Furthermore, this misguided argument in favor of imposing pot
prohibition on recalcitrant states puts Republicans on the wrong
side of history and on the wrong side of their own avowed
principles.