WASHINGTON: The time is at hand for the Obama administration to stop dithering, to take a clear position on the rights of Washington state and Colorado — and by precedent all others — to experiment with legalized marijuana.
That’s what Govs. Jay Inslee of Washington and John Hickenlooper of Colorado are asking the Justice Department to do — even though they personally opposed the marijuana legalization measures their voters approved last November.
The governors insist they can make their states’ new laws work well through responsible regulations that license, regulate and tax the production and sale of marijuana. New state labeling laws, say supporters, will also remove confusion and dangerous use levels by showing the potency in terms of THC, the psychoactive component of the cannabis plant, analogous to the labeling of alcoholic beverages.
Clearly it’s a direction the American people — who favor marijuana legalization 52 to 41 percent in recent polling — would approve.
A collaborative approach would be consistent with President Obama’s own marijuana history — a substance he tried himself as a youth. Asked last December about the Colorado and Washington legalization votes, he told Barbara Walters “It would not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal,” because “we’ve got bigger fish to fry.”
But Mr. President, there are serious issues to resolve. As personal purchase and use of marijuana are permitted in some states, can the practice really be contained at state borders? Will television, Web and print advertising be allowed? Will the legalizing states allow many small or just a few large suppliers? How much marijuana will be eligible for sale at one time? How will “marijuana tourism” — out-of-state visitors coming just to stock up — be handled? Will retail outlets be allowed near a state’s borders?
And then questions that undecided states may want to hear answered: Will the big tax revenues that marijuana supporters predict actually come true? Will driving under the influence of marijuana prove a real problem — and if so, how will it be controlled? Or on the health front: Will freely available marijuana help returning veterans suffering from PTSD? And generally, will it lead to more or less use of a substance we know is clearly dangerous: alcohol?
Those are the types of intriguing questions that journalist-scholar Stuart Taylor Jr. probes in a newly released Brookings Institution policy paper — “Marijuana Policy and Presidential Leadership: How to Avoid a Federal-State Train Wreck.”
Central to his case: the argument for an early, upfront agreement by the Obama administration and the states. Because the opposite — a fierce federal crackdown on Colorado and Washington state’s licensed marijuana producers and sellers — could well “backfire by producing an atomized, anarchic, state-legalized but unregulated marijuana market that federal drug enforcers could neither contain nor force the states to contain.”
And back to Obama — what about the U.S. Justice Department? It could use threats of conspiracy prosecutions to scare off applicants for state licenses to grow and sell marijuana. But there are federalism barriers: Washington can’t directly force states to enforce federal law. And there are only 4,400 federal Drug Enforcement Administration agents — “nowhere near enough,” Taylor suggests, “to restrain the metastasis of the grow-your-own-and-share marijuana market” — with small-time criminals crowding in — “that state legalization without regulation would stimulate.”
The recent precedents aren’t good. Faced by 18 states’ laws already allowing marijuana for medical use, the Justice Department has swung back and forth from general permissiveness to cracking down unmercifully in individual cases.
A crux of the problem is the federal Controlled Substances Act of 1970, which insists that marijuana has no medicinal properties — an assertion “on its face nonsensical,” says Rep. Earl Blumenauer, an Oregon Democrat.
But the law’s criminal sanctions for cultivating, possessing or distributing marijuana aren’t alone, notes Taylor. The statute also instructs that the attorney general “shall cooperate” with states on controlled substances, with power “to enter into contractual agreements … to provide for cooperative enforcement and regulatory activities.”
This is the opening, Taylor argues, that the Obama administration should take to negotiate with the states legalizing marijuana use — a process that would lead them toward careful regulation and standards, and away from the threat of irrational federal prosecutions.
In a more sensible world, Congress would be rewriting the Controlled Substances Act to reclassify marijuana as the relatively low-risk drug it clearly is. But who’d expect this Congress to do anything so rational?
That leaves states to regulate carefully on their own. And a clear challenge for Obama. Here’s a president who’s been bold enough to jump ahead of Congress on issues ranging from gay marriage to amnesty for DREAM Act immigrants. So now, why not smooth the way to marijuana reform when states choose it? And especially when polls show legalization is favored overwhelmingly by youth — the Americans whose early and intense support was indispensable to his becoming president?
Peirce is a Washington Post Writers Group columnist. He can be reached at email@example.com.