Though the presidential election grabbed most of the headlines, Donald Trump wasn’t the only big winner on November 8th – marijuana legalization ballot measures passed in four states, and some did by resounding margins. Thanks to this, more than one in five Americans now live in a state with legal recreational marijuana. Marijuana is a Schedule I substance, a classification system determined by the Drug Enforcement Administration and FDA. The drug has seen a positive shift in public opinion about it over the past ten years, but that evolution hasn’t led to changes in federal law. In fact, last summer, the Drug Enforcement Administration declined to ease its stance on marijuana despite the cascade of public support and state laws trending in favor of legalization.
The federal government’s inaction on marijuana has left the substance in a legal limbo, ultimately revealing an unwillingness to delve too deeply into the issue. However, as the debate over marijuana continues translating into legalization, the federal government should either take a definitive stand, or instead designate the issue entirely to the states.
Back in 2012, ballot measures put Colorado and Washington into uncharted territory as the first states to legalize recreational cannabis use. Alaska and Oregon joined them in 2014, and California, Maine, Massachusetts and Nevada did the same this November. States that have legalized the substance have so far been met with reassuring data. Fears that usage, especially among youth, would skyrocket appear to have been potentially overblown. Marijuana usage among Colorado teens has not changed since 2012 according to the Colorado Department of Public Health and Environment. This is likely because teenagers with a desire to smoke weed likely already had a way to do so – over 80% of high school seniors indicated marijuana was “easy” to get. Additionally, both Washington and Colorado’s rates of traffic fatalities have remained mostly stable.
Despite a steady progression towards state-level legalization, the federal government has attempted to walk an awkward line of granting jurisdiction to the states while still maintaining a federal prohibition. In 2009, the Obama Administration instructed federal prosecutors to not prosecute those growing medical marijuana in states that had recently legalized the practice. However, even with that directive, there have been a number of big cases highlighting the discrepancies between federal and state marijuana laws. Just last year, the Colorado Supreme Court ruled in the landmark decision of Coats vs. Dish Network that employees could be terminated for using medical marijuana despite it being legal in the state. The court found that Dish was justified in terminating Mr. Coats because his usage of medical marijuana went beyond “lawful activity” – not at the state but at the federal level.
The Obama Administration and Department of Justice have noticeably taken a backseat within the changing landscape of marijuana across the country. By leaving federal prohibitions on the books while simultaneously not enforcing them, the administration seemingly wants to observe how the rapidly changing issue plays out in the states before stepping in itself. But as Obama, whose position on marijuana hardly represents that of the more liberal branch of his party, leaves the White House, so does his particular non-engagement strategy; President-elect Donald Trump seems unlikely to be legal pot’s next champion, and could take steps in the opposite direction.
With the data coming out of states with legal usage not showing the apocalyptic deterioration of Western society that opponents sought to paint, any future President would face pushback for strongly opposing federal legalization. As of 2016, a record-high 61% of Americans believe marijuana should be legal. Youth support drives this high percentage, but there is also significant intersectional appeal. Small government Republicans, Gary Johnson Libertarians, and liberal Democrats have all found common ground on legalization despite growing political polarization on other issues. Nevertheless, social conservatives remain a notable sect of opposition. Granted, scientific data to support marijuana’s alleged medical benefits remains scant, and so does any scientific data against alleged addictive qualities in the drug. Herein lies the problem: neither side has indisputable evidence to support their position.
Given where public opinion stands and absent a fundamental shift in the research coming out of Washington and Colorado, the federal government should leave the issue entirely to the states. With the cards stacked the way they are, it makes little sense for the federal government to hold its current position. For the federal government to classify ‘marihuana’, as it’s written in the federal code, with the likes of heroin not only constitutes a disservice to the millions that employ the drug for genuine medical purposes, but also serves as a reckless misrepresentation of the substance to the broader public.
Fortunately, action can and should be taken that wouldn’t even have to involve Congress. A reclassification of the drug along with a reaffirmation by the attorney general to leave the states alone could reframe the entire issue out of the legal limbo it currently resides. Because marijuana is classified as a Schedule I substance under the Controlled Substances Act, the federal government’s position is essentially that the drug has no medical use. While rescheduling marijuana to a Schedule II substance would still leave it on par with the likes of Adderall and OxyContin, it currently resides in the same classification as heroin, so that would be an improvement. Therefore, the Justice Department has the legal right to prosecute states that are not in compliance with federal law.
While the DOJ has stated it would only intervene if health or safety problems emerge or states refuse to regulate the substance ‘properly’, it still retains the right to prosecute under ambiguous circumstances. Considering that President-elect Trump’s Attorney General nominee, Jeff Sessions, believes that “good people don’t smoke marijuana,” the Justice Department very well could defy the will of the states and crack down on recreational and medical marijuana use. In addition to the fact that such a move would defy decades of small government conservative orthodoxy, such action would likely be politically problematic.
So, when considering the American public’s heterogeneous opinions on social issues, the federal government should take a back seat and delegate the issue to the states. The debate over marijuana legalization should be played out, examined, and researched in socially liberal “laboratories” like Colorado, California and Washington. It may be many years before the US categorically embraces or denounces marijuana legalization, due to the dearth of conclusive research and the public divide on the issue. In the meantime, the federal government can take the first steps in untangling the complications and legal webs surrounding legalization by relinquishing power over the point in question back to the states.