Pubdate: Wed, 29 Jan 2014
Source: New York Post (NY)
Copyright: 2014 N.Y.P. Holdings, Inc.
Contact: http://www.nypost.com/postopinion/letters/letters_editor.htm
Website: http://www.nypost.com/
Details: http://www.mapinc.org/media/296
Author: Jacob Sullum

LET 50 CANNABIS FLOWERS BLOOM

PRESIDENT Obama says he opposes marijuana legalization but thinks 
Colorado and Washington should be able to try it. Texas Gov. Rick 
Perry, who sought to run against Obama in 2012 as a Republican 
presidential contender, takes the same position.

You might call this policy federalism - but not if you're Barack 
Obama. According to the president, he has the authority to enforce 
the federal ban on marijuana even in states that have legalized the 
drug. But he chooses not to exercise that authority, because he's 
curious to see how these experiments turn out.

In an interview with The New Yorker published last week, Obama said 
that "it's important for [legalization] to go forward, because it's 
important for society not to have a situation in which a large 
portion of people have at one time or another broken the law and only 
a select few get punished." A few days later, White House Press 
Secretary Jay Carney emphasized that Obama is "not endorsing any 
specific move by a state" but is instead "talking about the issue of 
the disparities in our prosecution of our drug laws that an 
experiment like this may be addressing."

As the Justice Department made clear in an Aug. 29 memo listing eight 
"enforcement priorities" it expects Colorado and Washington to 
address, the Obama administration reserves the right to end this 
experiment. If it doesn't like the way things are going, it can use 
threats of forfeiture and prosecution to shut down those states' 
newly legal marijuana businesses.

To Rick Perry, by contrast, federalism is not just a good idea; it's 
the law. "I am a staunch promoter of the 10th Amendment," he said at 
the World Economic Forum in Davos, Switzerland, last week. According 
to Perry, that amendment, which says the states retain those powers 
that are not granted to the federal government, means states should 
be free to set their own policies on matters such as abortion, gay 
marriage and marijuana, and "then people will decide where they want to live."

That vision has been all but obliterated by the Supreme Court's 
absurdly broad interpretation of the power to regulate interstate 
commerce, which nowadays means the power to regulate pretty much 
anything, including the plants in your yard and the contents of your 
dresser drawers. This is the power Obama has in mind when he views 
his willingness to let Colorado and Washington set their own 
marijuana policies as an act of presidential grace rather than a 
constitutional obligation. The truth is that the federal ban on 
marijuana - unlike the federal ban on alcohol, which began and ended 
with constitutional amendments - has no basis in the powers granted 
by the Constitution, at least insofar as it purports to reach purely 
intrastate activities. But as a politician who routinely relies on 
the Commerce Clause to justify his initiatives (including his 
signature legislative accomplishment), Obama will never admit that.

Still, if Obama truly believes "it's important" that states have the 
leeway to try different approaches to marijuana, why not codify that 
policy? The Respect State Marijuana Laws Act, introduced last spring 
by Rep. Dana Rohrabacher (R-Calif.), would do just that by declaring 
that the provisions of the Controlled Substances Act dealing with 
cannabis "shall not apply to any person acting in compliance with state laws."

By supporting this bill, Obama could show he is serious about letting 
states go their own way on marijuana without abandoning his broad 
view of the federal government's powers. Republicans could appeal to 
younger voters - two-thirds of whom support legalization, according 
to a 2013 Gallup poll - while remaining faithful to a principle they 
claim to uphold.

Several recent surveys indicate that most Americans favor 
legalization, while even larger majorities say the federal government 
should not interfere with legalization at the state level. We seem to 
have the makings of a national consensus on this issue: We do not 
need a national consensus.
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MAP posted-by: Jay Bergstrom