Today the Obama administration announced that Federal drug agents
will no longer arrest medical marijuana users and suppliers who
are in compliance with state law. The AP reports,
Federal drug agents won’t pursue pot-smoking patients or
their sanctioned suppliers in states that allow medical
marijuana, under new legal guidelines to be issued Monday by
the Obama administration.
Two Justice Department officials described the new policy
to The Associated Press, saying prosecutors will be told it is
not a good use of their time to arrest people who use or
provide medical marijuana in strict compliance with state
law.
The guidelines to be issued by the department do,
however, make it clear that agents will go after people whose
marijuana distribution goes beyond what is permitted under
state law or use medical marijuana as a cover for other crimes,
the officials said.
The new policy is a significant departure from the Bush
administration, which insisted it would continue to enforce
federal anti-pot laws regardless of state codes.
Libertarians are enthused. Nick Gillespie at Reason
crows,
After several false starts, the Obama administration is
making all the right noises on federal medical marijuana
policy…. The devil is in the details, of course, and how the
policy is enforced (or not). But it represents the most
compassionate and sensible policy to come out of Washington in
a very long time.
And Jonathan Adler of The Volokh Conspiracy notes the
policy’s
federalist merits:
…assuming this is an accurate account of the
guidelines, this is a positive step toward a more rational drug
control policy and greater respect for state-level
policymaking.
The Justice Department has to set prosecutorial
priorities, as there are more federal crimes on the books than
federal prosecutors can ever hope to prosecute. The aim should
be to focus federal resources in those areas where there is a
distinct federal interest, or where the federal government has
a comparative advantage of state and local law
enforcement.
Lastly, Glenn Greenwald claims that the
decision represents a triumph for states’ rights:
Beyond the tangible benefits to patients and providers,
there is the issue of states’ right. Fourteen states have
legalized medical marijuana, many by referendum. The Bush
administration’s refusal to honor or even recognize those
states’ decisions — by arresting people for doing things which
are perfectly legal under state law — was
one of many examples giving the lie to the conservative
movement’s alleged belief in federalism and limited federal
power (see
here, for instance, how John Ashcroft and GOP Senators
tried deceitfully and undemocratically to exploit the aftermath
of 9/11 to prevent Oregon from implementing its assisted
suicide law). Constitutionally and otherwise, what possible
justification is there for federalizing decisions about whether
individuals can use marijuana for medical purposes? Ironically
(given the “socialism” and “fascism” rhetoric spewed at it by
the Fox News faction), the Obama administration’s decision is a
major advancement for the rights of states to have their laws
respected by the federal government.
A “major advancement”? There are two problems with this
glee over the Obama administration’s apparent newfound love for
federalism.
The first is that the feds’ own rationale for the decision
is not based on the interpretation of the law but on the
effectiveness of law enforcement. The Justice Department
officials cited in the article said that they are making the
change because arresting medicinal marijuana users “is not a good
use” of their time. So states’ rights, federalism, etc. doesn’t
enter the equation — if it were a good use of their time, they’d
continue prosecuting medical marijuana users and suppliers. Also,
it seems like their language is contrived to leave plenty of
loopholes.
The second is that even if this decision truly were made
out of respect for states’ rights, it seems like a sort of
backward approach to federalism, as the administration is
simultaneously pursuing numerous policies that would vastly
increase the concentration of power in Washington, in areas far
more consequential than medicinal marijuana. The obvious example
is health care.
It is an odd kind of reform federalism that prizes the
recognition of one of the most controversial and dubious of
states’ rights, i.e. the right to be potheads, while ignoring the
trampling of other far more obvious rights, such as the right to
choose the system that best delivers medical services. I don’t
think Obama should get any credit for libertarian or federalist
tendencies until his actions comprise more than one scrap tossed
to an unseemly faction of the federalist movement.
