Pot Policy: Who Should Decide?

When Colorado and Washington voted last November to legalize marijuana in defiance of federal drug laws, those results created a new states/federal government conflict that currently poses many questions, but offers few answers, a Brookings Institute panel agreed this week.

The panel acknowledged that the Constitution clearly rules that federal law supersedes state law. But in the case of  the marijuana issue, the main question becomes how should the federal government respond. After decades of fighting a war on drugs, should federal agencies ignore the drug consumption in the 2 western states? Or should it come down hard on users and sellers there?

"This is a contentious issue that has good and bad effects no matter how it turns out," says Troy Eid, a Denver lawyer, ex-U.S. attorney for Colorado, and a former member of the federal Advisory Committee on Narcotics and Drug Trafficking..

Eid was joined on the panel by Angela Hawken, a Pepperdine University professor who has co-authored the books Drugs and Drug Policy: What Everyone Needs to Know and Marijuana Legislation: What Everyone Needs to Know; Michael Greave, a George Mason University law professor and visiting scholar at the American Enterprise Institute; and Jonathan Raush, a guest scholar at the Brookings Institute and one of the leading writers on gay issues, who served as moderator.

As a researcher, Hawken said she hoped the experiments in Colorado and Washington would be allowed to play out. "We're really in an information vacuum," she said. "We have a lot to learn about (legal) marijuana. Right now, we're just guessing."

Hawken presented a number of currently unanswered questions, the answers of which could be determined by studying the 2 states. She cited such questions as:

• What happens to drug use when you legalize a drug?
• Will young people start using the drug more or earlier?
• What happens to the number of cases of driving while under the influence of drugs?
• What is the relationship between alcohol and drug use when both are legal?

Panel members added several other questions including:

• How much marijuana tourism will there be?
• Should out-of-state marijuana advertising be banned?
• What tax level should be set on the sale of marijuana?
• How will current drug gangs and international cartels respond to the legal interruption of their lucrative business?
• Should levels of acceptable potency be established?
• How should marijuana be dispensed and who should sell it?
• Will the addiction rates rise? What about crime rates? Will they go up or down?
• Could state officials and residents be charged under federal aiding and abetting criminal laws?

Eid said Colorado is working to resolve as many questions as it can, but added that he hoped Congress would take clarifying actions. "Cops need clear rules. They are not law professors, nor should they be," he said. "To have them do nothing would be a major shift in direction."

Greave, an admitted staunch Libertarian, said he doubted Congress would take action.  "Congress won't enact a law. Congress is just about impotent. And the federal government can't compel a state to enact or enforce laws," he maintained "The question is how far does - and how far should - federal power extend?"

With tongue-in-cheek, he said he would welcome the outcry of a strong federal reaction. "It would be great if we had swarms of federal officers breaking down the doors of pot smokers," he said. However, he agreed with the rest of the panel that federal agencies have neither the physical nor the fiscal resources to wage combat with every community in Colorado and Washington.

President Barack Obama is on record as saying his administration won't go after recreational marijuana users, telling interviewer Barbara Walters that "we have bigger fish to fry." However, the president admitted that a bigger issue is what the federal government will do about the new Washington and Colorado laws that  allow commercial production and retail sales of marijuana.

"This is a tough problem, because Congress has not yet changed the law," Obama told Walters. "I head up the executive branch; we're supposed to be carrying out laws. And so what we're going to need to have is a conversation about, How do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it's legal?"

Rausch said that marijuana is just one of many issues on which there is no national consensus and are, or will be causing state/federal conflicts. He added immigration, gay marriage, and Obamacare to that list. "Talk about putting the cat in the middle of the pigeons," he said. "We're in a period of ferment, the likes of which we have not seen since the New Deal."

Hawken concurred. "It's like Betty Davis said, 'Buckle up. It's going to be a bumpy ride,'".

Tales, Tidbits, and Tips

By completely legalizing marijuana, Colorado and Washington became the 1st political entities in the world  to do so. After years of America calling for international actions to halt drugs, that decision may not sit well with other nations. Representatives from the Netherlands, India, and Mexico all questioned the panel about the legalization issue. In an attempt to answer honestly, Eid said. "I don't think when the voters (in Colorado) voted, they were thinking about the Netherlands," he said.