‘Federalism is not just for conservatives.” That was my mantra in 2005, when I represented
before the U.S. Supreme Court. The two California women were challenging the federal ban on medical marijuana as applied to states that authorized its use.
They lost 6-3, and the votes in their favor all came from conservatives: Justices
Sandra Day O’Connor
and Chief Justice
Those justices agreed with us—and with the editorial page of this newspaper—that the noncommercial cultivation, possession and medical use of marijuana is outside Congress’s power to regulate “Commerce . . . among the several States.”
Now the question has moved to Capitol Hill. Last week Sens.
introduced legislation called the States Act, which would remove the federal ban on manufacturing, distributing and possessing marijuana in states that have legalized it. The vote on their bill, or lack thereof, will be telling. Do conservative Republicans support federalism even when it runs against their policy preferences? Are Democrats willing to support diversity in state policy?
In 2002, when the Raich litigation began, medical marijuana was considered a fringe issue. Publicity from the legal case helped it gain acceptance as a reasonable policy option. To my surprise, the drive to authorize medical marijuana actually gained momentum from the courtroom loss. A small number of states now have authorized recreational use as well.
Yet citizens who use marijuana legally under state law are still considered criminals by the federal government. Although marijuana users are rarely prosecuted in these states, it does happen. Meantime, growers face seizure of their crops, distributors are subject to forced closure, and both have a hard time leasing space, since building owners fear federal prosecution.
Further, because banks are barred by federal law from handling the proceeds of “unlawful” conduct, marijuana businesses are forced to store and transport large amounts of cash. This makes them susceptible to theft, and compels them to seek loans off the books from illicit sources. In these ways federal criminalization preserves many of the ill effects of black markets, even in states that have legalized marijuana.
The Obama administration moved to mitigate some of these effects. A 2013 memorandum, issued by Deputy Attorney General James Cole, guided U.S. attorneys to cease prosecuting marijuana offenses in states that had established their own effective regulatory systems. Yet this didn’t solve the practical problems confronting legal marijuana distributors, such as access to bank services. And by establishing what amounted to sanctuary status for legal-marijuana states, the Cole memorandum seemed to flout the president’s constitutional obligation to “take care that the laws be faithfully executed.”
The Cole memo was revoked when Jeff Sessions, a longstanding and vocal opponent of marijuana legalization, became attorney general in 2017. But by eliminating the safe havens mandated by the executive branch, he created a powerful incentive for Congress finally to legislate on the matter. Also pushing lawmakers to act is the legal marijuana business, which has grown into a multibillion-dollar industry.
The States Act is a compromise: It would simply conform federal marijuana law in each state to whatever that state’s law permits. To the extent that marijuana is legal in California or New Jersey, so too would it be legal there under federal law. In states where marijuana is still illegal, federal law would also apply.
This adaptability would allow federal law enforcement to continue backing up the states by going after major marijuana distributors in places where it remains illegal. The feds could still prevent the shipment of marijuana from states that permit it to ones that don’t. And the legislation would prevent state laws regulating how marijuana is distributed from being invalidated for interfering with federal law.
If enacted, the States Act would provide a model for how the U.S. can move from one-size-fits-all federal policies to 50 state solutions for social and economic problems. In a nation as large as America, federalism allows for diversity. That’s a better approach than escalating every policy debate to the national level and then forcing the losers to live under the regime of the winners.
Conservatives who profess a commitment to federalism should support the States Act. Progressives, meanwhile, should embrace the diversity and choice that federalism makes possible.
Mr. Barnett, a law professor at Georgetown, directs the Georgetown Center for the Constitution.