On January 4, 2018, Attorney General Jeff Sessions decided to revisit the Justice Department’s policy regarding the prosecution of marijuana traffickers in states that authorize the medical or recreational use of that drug. He repealed a memorandum issued in 2013 by then-Deputy Attorney General James Cole.[REF] The Cole Memorandum said that the Justice Department would use an eight-factor standard to decide when to enforce the federal laws against marijuana trafficking. The new policy will allow individual U.S. attorneys to make enforcement decisions based on their own judgments as to how big a problem marijuana trafficking is in their respective jurisdictions.[REF]
Supporters of marijuana liberalization will condemn Attorney General Sessions’ decision.[REF] They will malign him by saying that his judgment represents the now-discredited Reefer Madness theory of why marijuana should be deemed contraband.[REF] They will accuse him of defying the wishes of the voters. Some will go so far as to accuse him of having an empty head and a stone-cold heart and ask that both be sacrificed on the sacred alter of marijuana reform.
To say that such criticism is overstated is like saying that the Titanic took on a little water. As times change, science uncovers new risks for old substances, like asbestos, PCBs, and lead. Remember when everyone smoked tobacco because it was seen as a harmless divertissement? That day went the way of round black-and-white TVs. Anyone who held that opinion now would justly and properly be ridiculed. Marijuana is another one of those items whose potential risks and benefits need to be reexamined today. Our decision as to whether marijuana is harmful or helpful should rest on what we know today, not what we knew when cars lacked automatic transmissions. Our current knowledge of the pharmacodynamics of marijuana’s constituents is far superior to what it was when Lyndon Johnson or Richard Nixon was President, let alone Franklin Roosevelt.[REF]
Marijuana Law Begins to Change
Federal law has made marijuana trafficking a crime for decades.[REF] The only question in any individual case has been whether someone broke federal law and whether, for a variety of reasons, the federal government should spend its scarce law enforcement resources on a matter. Traditionally, the federal government has focused on cases involving, for example, the importation into the United States or the distribution across state lines of large quantities of marijuana. The U.S. Customs Service (now known as the U.S. Customs and Immigration Service) and Drug Enforcement Administration have not spent limited federal funds going after high school or college students experimenting with marijuana. Marijuana distribution and possession were also crimes under state law, and local law enforcement officers handled small-scale cases.[REF]
American law, however, began to undergo change in 1996.[REF] California became the first state to revise its domestic law and permit physicians to recommend that marijuana be used for medical purposes. Not too long afterwards, states like Colorado and Washington also revised their laws to allow marijuana to be used for recreational purposes. Rather than flatly prohibit the recreational use of cannabis, those states decided to regulate the growth of marijuana, the production of marijuana products, and the commercial, in-state distribution of both items to adults for recreational purposes.
Put aside for a moment whether those decisions made sense as a matter of policy. America ordinarily treats the willingness to admit that a policy is mistaken or has become obsolete as evidence of an agile mind and wisdom, not as proof of mental calcification. It makes sense to reconsider and revise the nation’s historic approach to marijuana if today’s science calls into question what we thought that we knew in the 1960s and 1970s. There has been a considerable amount of research conducted since the days when films like Up in Smoke and Easy Rider heralded marijuana as a less dangerous psychoactive substance than alcohol and glamorized its use as a righteous symbol of a young generation’s morally justified rebellion against the Vietnam War and resistance to The Man.[REF] We now know that long-term marijuana use can cause physical disorders (e.g., respiratory disease); social problems (e.g., anomie); and mental health problems (e.g., schizophrenia) that no one told us about in the 1960s.[REF] According to Doctor Hoover Adger, a pediatrician on the faculty of the Johns Hopkins Medical School and Hospital, 50-year-old studies may not be useful today because we are not dealing with your granddaddy’s dope.
A substance known as THC[REF] is the primary psychoactive ingredient in marijuana. In the 1960s and 1970s, the THC content was in the neighborhood of 3 percent–4 percent. Today, it can be more like 20 percent in smoked marijuana. Marijuana oils have an even higher THC content, and pills can be manufactured that are 99 percent THC. Only a fool would ignore those facts and assume that marijuana use might be no more dangerous today than it was when Cheech and Chong were making films.
Unfortunately, the debate over marijuana policy often generates more heat than light. Voters ignore what science has learned and what it still does not yet know in a mad rush to enable people to anesthetize themselves against life; to justify allowing private businesses (remember Big Tobacco; now think Big Marijuana) to make money from that desire; and to ignore state governments’ clamor for a new, untapped income source.
Last November, California voters went whole hog. They passed an initiative legalizing the recreational use of marijuana under state law. That initiative took effect on January 1, 2018. Because California’s nearly 40 million residents are roughly 12 percent of the nation’s almost 327 million people,[REF] the change in California law is no trivial matter as far as the nation’s social policy is concerned.
Important Legal Ramifications
But the changes since 1996 also have important legal ramifications. States cannot authorize parties to engage in conduct that federal law prohibits. That has been the law since 1789 when the Framers included the Supremacy Clause of Article VI in the Constitution.[REF] In the Controlled Substances Act of 1970,[REF] Congress prohibited the very same activity that states like California now have permitted. Attorney General Sessions was eminently justified in telling the states that the policies adopted by the Obama Justice Department impermissibly encourage states to violate federal law. California can no more legitimately urge its residents to violate the federal drug laws than the federal tax laws. As long as the Controlled Substances Act is on the books, states cannot tell their citizens to disregard it.
We should not expect federal law enforcement officers to decide what laws to support based on polls. We should demand that Members of Congress make those decisions, however much they may want that cup to pass from their lips. The public can urge Congress to repeal or revise whatever federal laws they do not like. That may lead to unwise decisions, but at least asking Congress to reexamine the Controlled Substances Act is the sensible way to address the matter. Congress can ask the Trump Administration—and ask its predecessors too—what is the best criminal justice and social policy. Congress can also query the Food and Drug Administration about what is the best medical answer to this debate. After all, we do not allow state legislators or voters to decide what pharmaceuticals can be marketed. For 80 years, we have vested the authority to make that decision in the FDA because we do not believe that medical safety and effectiveness should be the subjects of plebiscites.
It seems elementary to say that Congress should make policy decisions like those, but that is also the right answer.
—Paul J. Larkin, Jr., is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation.
