Pubdate: Sat, 01 Feb 2014
Source: Honolulu Star-Advertiser (HI)
Copyright: 2014 the Creators Syndicate
Contact: 
http://www.staradvertiser.com/info/Star-Advertiser_Letter_to_the_Editor.html
Website: http://www.staradvertiser.com/
Details: http://www.mapinc.org/media/5154
Author: Jacob Sullum, the Creators Syndicate

FEDERALISM IS THE WAY TO GO ON ISSUE OF POT LEGALIZATION

President Barack 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 are 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 is 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 does not like the way things are going, it can use 
threats of forfeiture and prosecution to shut down those states' 
newly legal marijuana businesses.

To 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