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.