The Dope on Federalism and the Administrative State

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This past Tuesday, the Brookings Institution held a C-SPANned panel discussion on the federalism implications of state laws that liberalize and de-criminalize marijuana use, possession, and distribution.  The unusually informative and wide-ranging debate featured Troy Eid (Greenberg Traurig) and Angela Hawken (Pepperdine)—who, unlike the third discussant (moi), know a great deal about the topic. Moderator-cum-contributor Jonathan Rauch (Brookings) was his usual self—charming, funny, thoughtful. The videotape is here.

Since winging it on the panel, I’ve thought some more about the federalism questions and in particular the federal government’s response. Zwei Seelen wohnen, ach, in meiner Brust: I’m torn.

This much seems clear: While state laws can protect dope fiends with a safe harbor from state criminal prosecution, possession etc. remain criminal under federal law (the Controlled Substances Act). Moreover (I said in the discussion and hereby reaffirm), it would be good if state officials in liberalized states simply refused to enforce the CSA; prohibited prosecutors from invoking the CSA for purposes of indictments or plea agreements;  and refused federal grants that require enforcement of that statute with respect to marijuana. Something along those lines, it seems, was the state voters’ preference. If the feds have a different preference, let them send swarms of DEA officers hither and yon. That’ll teach citizens more about the federal government than fifteen Cato Backgrounders.

Alas, there’s a glitch. Suppose (I asked Troy Eid, an experienced former enforcement official) state officials advise the owners of a marijuana dispensary on how to obtain the requisite license. Or suppose a dispensary opens a bank account (for payroll processing and the like): would the officials and/or the bank be on the hook, under federal law, for aiding and abetting a criminal enterprise? The answer, which I expected but found nonetheless depressing, was “yes” to both. Against this backdrop, we have a dilemma.

Here’s one side: President Obama’s pronouncement (in a BabaWawa interview) that enforcement of marijuana laws wasn’t a “top priority” for his administration seems eminently sensible: resources are kind of tight, and regardless of what one thinks about legalization, tracking down pot smokers in Spokane and Durango can’t possibly be a priority.

On the other side is a potent argument noted by Brett Talley in the Weekly Standard: we can’t have the President decide on his own which laws he is or his not going to enforce. That, though, has become a habit for the administration. Thus, the administration has effectively enacted an immigrant “DREAM” Act that Congress has failed to enact, simply by adopting a policy of not enforcing immigration laws against certain classes of undocumented aliens. Talley’s piece provides additional examples.

At this point, earnest constitutionalists and good government types nod gravely, clear their throats, and pronounce: “Congress must provide.” I agree: I, too, am for the Constitution and good government. And say, what’s the temperature today on your planet? We earthlings know that typically, Congress cannot and will not provide; so we’re saddled with laws that nobody wants. And when Congress does provide, it makes matters worse: it enacts statutes (the Affordable Care Act, Dodd-Frank) that require hundreds of rulemaking proceedings. Even an administration wholly committed to the public weal and the Constitution will have to decide which parts of the “law” it will or will not implement, let alone enforce. Either way, Congress doesn’t matter: this is the age of executive government. Get used to it.

Or should we? More in the next post.